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Thursday, 15 June 1989
Page: 4126


Senator COLLINS —I present the eighty-fifth report of the Senate Standing Committee on Regulations and Ordinances.

Ordered that the report be printed.


Senator COLLINS —by leave-I move:

That the Senate take note of the report.

The report deals with the operations of the Committee in 1987-88 and includes statistical data and analytical discussion of the technical scrutiny undertaken by the Committee. As with previous reports, it represents a manual or set of guidelines for Ministers and their advisers on how the Committee approaches the application of its principles. I urge Ministers, and in particular their advisers, to read the report carefully as it may guide them away from some of the pitfalls in preparing delegated legislation.

Briefly, I would like to add something that I pointed out to the Committee at its meeting this morning and that is highlighted by this report: the work of the Committee is increasing, not surprisingly. The number of instruments that are being prepared in terms of delegated legislation is continually increasing. But, despite that, the interesting thing-I am sure some honourable senators have noticed it-is that there has been a very measurable decrease in the number of protective notices that have been moved. In other words, what we thought was perhaps a temporary aberration is in fact a very welcome substantial improvement in the quality of the drafting of the regulations in accordance with the Committee's principles, which has led to a distinct falling off in the number of protective notices that have had to be issued in the Parliament.

I seek leave to incorporate the remainder of my tabling speech in Hansard.

Leave granted.

The speech read as follows-

STATEMENT ON TABLING OF REPORT

This Report deals with the work of the Committee from July 1987 to June 1988. The Report sets out the basic statistics of the operations of the Committee over that period; in particular the numbers and types of instruments examined and the number of Ministerial undertakings obtained and implemented in respect of concerns raised by the Committee. Perhaps more importantly, however, it describes how the Committee has interpreted the principles under which it operates and how it applies those principles to the protection of personal liberties and parliamentary proprieties. These are set out in some detail and with various examples.

The reasons for this approach are, firstly, to inform the Senate of the work of the Committee. All delegated legislation is, of course, made under the direct authority of Acts of the legislature, and its legal effect upon individuals is in no way less than that of Acts. A heavy duty rests upon the Committee, therefore, to represent those interests with which the legislature is so closely associated; to act as an agent for the Senate in scrutinising delegated legislation for breaches of individual rights or legislative prerogatives. I hope that the Committee continues to carry out this duty as effectively as it can.

Another important reason for this approach is because the Report should be used as a manual or check list by officers in departments and statutory authorities who advise on and draft delegated legislation. I dealt with this at length last year when presenting the previous annual report of the Committee. I now repeat my strong recommendation that every Minister takes all appropriate steps to ensure that senior departmental officers apply the principles noted in the Report when preparing delegated legislation for consideration by the Minister. It is a test of managerial efficiency for these senior officers to place before the Minister drafts of delegated legislation which comply with the published standards of the Committee. These standards should be well known; not only are they set out in consolidations such as the present report, but the Committee also regularly tables or incorporates in Hansard descriptions of its scrutiny work throughout sittings along with all correspondence in relation to the more important matters which it raises. This is done at the same time as the Committee finalises its consideration of a matter.

The Report also deals at length with procedural difficulties the Committee meets in its operations. An entire Chapter of the Report discusses the requirements for proper Explanatory Statements. Other parts of the Report address delay in implementing undertakings and the necessity for departmental officers to be familiar with the standards of the Committee. These discussions of the difficulties of the Committee are intended as constructive assistance to departmental officials in achieving the standards set by the Committee.


Senator COLLINS —I also seek leave to incorporate the usual Chairman's statement about the work of the Committee during the present sittings.

Leave granted.

The statement read as follows-

STATEMENT ON WORK OF COMMITTEE DURING AUTUMN SITTINGS

Over the past sittings the work of the Committee has been characterised by two main features.

The first of these is the continued high volumes of delegated legislation which has come before the Committee for scrutiny.

The number and types of instrument confirm the continued reliance of the executive on delegated legislation as a standard mechanism to facilitate day to day Commonwealth public administration. As such the work of the Committee is doubly valuable to the Parliament in both scrutinising the results of the law-making power which it has delegated and in supervising the actions of the executive itself.

Indeed, the volume of delegated legislation suggests that directives and instructions of the executive which previously may have been confined to the corridors of power in the different departments of state, are now subject to parliamentary scrutiny. The role of the Parliament in the oversight of the administration of its Acts is thereby strengthened. The domain of Ministers and their senior departmental advisers has been subjected to the fresh air of tabling and the brisk wind of possible disallowance.

This tendency is only welcome, however, as long as the delegated legislation is justified in terms of filling-in administrative details, prescribing lengthy objective technical standards or providing for situations where frequent minor changes are necessary to schemes or programs. The instruments themselves must also, of course, comply with the Committee's standards of personal liberties and parliamentary propriety. In this context of the proper use of delegated legislation the Committee has detected some disturbing tendencies, which will be discussed in detail later in this statement. In the meantime, the attention of Honourable Senators is drawn to the following table, which describes the various instruments actually considered by the Committee during the present sittings. The list covers the entire sweep of Commonwealth administration, with delegated legislation made on the advice of virtually every department of state and important statutory authority. Honourable Senators are reminded that, for example, the Statutory Rules alone, which are the most numerous single type of instrument considered, and which come under a single item in the list, are made on advice from almost every executive portfolio. Some of the instruments in the Table were made late in 1988 but not considered until the Autumn Sittings 1989.

TABLE 1

Legislation considered by the Committee during the Autumn Sittings 1989

Statutory Rules ...

219

A.C.T. Ordinances ...

72

A.C.T. Regulations ...

19

A.C.T. Determinations (under different pieces of enabling legislation) ...

22

Seat of Government (Administration) Act Notices ...

2

Aged or Disabled Persons Homes Act Determinations ...

5

Commonwealth Teaching Service Act Determinations ...

1

Defence Act Determinations ...

81

Health Insurance Act Determinations ...

5

Parliamentary Presiding Officers Determinations ...

2

Public Service Act Determinations ...

101

Quarantine Act Proclamations ...

1

Remuneration Tribunal Act Determinations ...

15

Social Security Act Determinations ...

1

Christmas Island Ordinances ...

3

Cocos (Keeling) Island Ordinances ...

3

Postal By-laws...

2

Telecommunications By-laws ...

7

Australian National Railways By-laws ...

2

Navigation Orders ...

2

Australian Meat and Live-stock Orders ...

1

Export Control Orders ...

1

Meat Inspection Orders ...

1

Rifle Club (Firearms) Orders ...

1

Civil Aviation Orders ...

118

National Health Act Declarations ...

5

Wild Life Protection Declarations ...

1

Telecommunications (Interception) Act Declarations ...

2

Commonwealth Employees Declarations ...

1

Fisheries Notices and Variations ...

6

Fisheries Plans of Management ...

5

Customs Notices ...

1

States Grants (Petroleum Products) Schedules ...

3

States Grants (Technical and Further Education Assistance) Determinations ...

13

States Grants (Tertiary Education) Directions ...

4

Higher Education Funding Act Directions ...

8

736

The second important characteristic of the legislation examined by the Committee in the past sittings was the tendency for instruments to contain various provisions dealing with rights, appeals and tabling, which have been recommended by the Committee during the course of scrutiny of instruments during previous periods.

This trend follows the statement by the Committee at the conclusion of the last sittings, which encouraged Ministers and advisers to pursue a qualitative improvement in those aspects of delegated legislation of concern to the Committee, particularly in relation to personal rights and liberties. It is not possible to say whether this will continue, particularly as the standards of the Committee are not static but are continually expanded and refined, but at present it is an important justification for the past efforts and initiatives of the Committee. The Committee is pleased with the co-operation it has received and continues to receive from Ministers and officials.

The reasons for this may be that the Committee's efforts to set high standards for delegated law making have resulted in the acceptance of such standards by competent administrators and drafters. The goal of the Committee's advocacy of civil liberties and parliamentary proprieties is to see its principles incorporated into the mainstream of administrative practice and this is an on-going process.

All of the protective notices of motion given by the Committee were satisfactorily resolved and none are now before the Senate on behalf of the Committee. The Committee has, however, continued its traditional very active level of activity. At present there are some three dozen items on the Committee's Agenda, ranging from typographical errors to questions of broad principle.

It is usual in these statements to include a list of undertakings given by Ministers to amend legislation to meet the concerns of the Committee. The following list of those undertakings during the present sittings is particularly interesting in that only 4 protective notices of motion of disallowance were necessary during the sittings in respect of the entire agenda of the Committee. It is an indication of the helpful attitude of Ministers that these matters have been finalised promptly and with such procedural informality.

TABLE 2

In applying its scrutiny principles to delegated legislation, the Committee considered a range of matters and obtained a variety of Ministerial undertakings which included the following. Some of these were in respect of concerns raised in the previous sittings but where undertakings were not accepted by the Committee until the present sittings.

Incorporation by reference in delegated legislation-In response to a general initiative of the Committee, the Attorney-General undertook on 20 January 1989, in respect of delegated legislation which is the responsibility of his portfolio, to furnish the Committee with instruments which are incorporated in delegated legislation, thereby themselves acquiring legislative force, to summarise the nature and effect of the incorporated instruments in the Explanatory Statement and to indicate where a copy may be obtained. The Attorney-General also undertook to write to Ministerial colleagues advising them of the undertaking.

Building (Amendment) Ordinance 1988 (A.C.T. Ordinance No. 73 of 1988)-The Minister for the Arts and Territories undertook on 16 December 1988 to amend the Ordinance to correct a drafting oversight relating to a confusing miscitation of a paragraph.

Motor Omnibus Services Ordinance 1955 (A.C.T. Determination of Fees No. 33 of 1988)-The Minister for the Arts and Territories undertook on 16 December 1988 to amend the Determination to clarify drafting relating to the heading of a clause.

Rules of the Supreme Court of the Australian Capital Territory (Amendment) (Statutory Rules 1988 No. 257)-The Chief Justice of the Supreme Court of the A.C.T. undertook on 19 and 23 December 1988 to provide full Explanatory Statements to accompany future amendments of the Rules.

Industrial Relations Regulations (Statutory Rules 1989 No. 12)-The Minister for Industrial Relations undertook on 11 April 1989 to amend the regulations to provide that possibly prejudicial evidence could be challenged by parties affected by it rather than left to the discretion with an official. Previously, the regulations gave the Registrar a discretion to admit evidence given in earlier proceedings before the Court, the Commission or a Registrar but did not provide for objections to the use of such evidence. (Senate Daily Hansard, 2 May 1989, p. 1543-1545.)

Wool Marketing Regulations (Amendment) (Statutory Rules 1989 No. 14)-The Minister for Primary Industries and Energy undertook on 11 April 1989 to amend the regulations to provide for a reasonable time limit within which a mandatory inspection ordered by an official had to be completed. (Senate Daily Hansard, 2 May 1989, p. 1543-1546.)

Australian National Railways Commission (General By-law Amendment No. 2)-The Chairman of the Australian National Railways Commission undertook on 11 April 1989 to amend the By-law to remove strict liability, dual liability and conclusive proof certificate provisions relating to criminal offences. (Senate Daily Hansard, 2 May 1989, p. 1543-1544, 1546.)

Notice of Declaration under the Commonwealth Employees' Rehabilitation and Compensation Act 1988-The Minister for Industrial Relations undertook on 4 May 1988 to provide Explanatory Statements to accompany future Notices and to institute a system of citation.

In previous statements at the conclusion of a sittings, it has also been usual to draw attention to matters of concern to the Committee in its continuing task of technical scrutiny. Over the last few years there has been some repetition of these themes; inadequate Explanatory Statements, delays in answering correspondence, tardy implementations of undertakings, and some lack of appreciation of Committee standards.

While not wishing to play down the importance of these, there have been some improvements here just as there have been in the substantive contents of delegated legislation dealing with civil liberties and parliamentary proprieties, and probably for the same reasons. These particular problems continue to be in the forefront of issues pursued by the Committee. They have, however, been dealt with exhaustively in the present Eighty-Fifth Report and in previous statements and reports.

The most important area of concern to the Committee at present is more threatening to its standards and has more potential to damage its achievements. This concern is the increasing use of new legislative and administrative techniques outside the usual experience of legislative scrutiny. The conceptual framework of delegated legislation is straight forward; an Act of Parliament will set out the broad scheme of a policy or program within a fairly detailed framework, with executive law-making confined to matters too technical, trivial, detailed or changing to justify the procedural solemnity and rigor of an Act of Parliament.

These new techniques of `quasi-legislation', however, stand the established theory on its head. Acts may now be mere skeletons, with considerable detail made by legislative or quasi-legislative instrument. In a parallel development this added detail is not technical or minor but can tend to be the substantive core of the scheme. Finally, this quasi-legislation is expressed in terms which are difficult to classify. Typically, an Act will provide for `guidelines' or `directions' to be issued in respect of a particular matter. These will not always be subject to disallowance or even tabling. Even where they are so subject their terminology and content is such that it is difficult to tell whether they are mandatory and prescriptive. It is, for example, an improper exercise of a discretion under the Administrative Decisions (Judicial Review) Act, to apply a guideline without further consideration. There is a serious danger to parliamentary propriety if such instruments by-pass the scrutiny and supervision of the Parliament. Expansion of the use of these instruments at the expense of detailed provisions in Acts and the more orthodox instruments of delegated legislation may increase the power of the Government at the expense of the Parliament.

It goes without saying that such quasi-legislative instruments are usually not subject to the presentational discipline of the Statutory Rules Publication Act, with consequential deficiencies in access, presentation and citation.

The challenge of this quasi-legislation is particularly difficult. One response must be to liaise closely with the other Senate legislative scrutiny committee, the Scrutiny of Bills Committee, to co-ordinate information and responses. This has the potential at least for the Senate to be informed of the extent of these practices. No Commonwealth agency, for example, has a complete record of all delegated legislation and quasi-legislation. As well as information and publicity, however, the reply to the challenge may require a wider and more flexible range of options to be available to the Committee.

Such options could include the right of partial disallowance and amendment of delegated legislation; the Senate could then debate and vote upon individual parts of a quasi-legislative instrument, in the same way as it does on a Bill. This would avoid the situation where the Senate is presented with an all or nothing option in considering delegated legislation.

Another would be to develop mechanisms that would assist the Committee's scrutiny. For example, the accompanying documents could contain an assessment of the impact of instruments on the rights of people and Parliament. More hearings by the Committee could be useful, not only with public officials but with personal representations and evidence from members of the public who may feel that their rights are unduly diminished by legislation. These changes could be complemented by provisions for the possible suspension of the operation of quasi-legislative instruments during a long adjournment, if those instruments appear to infringe the Committee's principles.

It may be that the time is fast approaching when the Government should re-examine long standing delegated legislative instruments which are known to affect individual rights for reasons which may not be as persuasive as they were when those instruments were made.

A requirement that the instruments comply with the Statutory Rules Publication Act would also be very useful.

Most of these remedies require statutory provision but some could be instituted or developed on the initiative of the Committee, which is now considering courses of action. Many of the above suggestions are not merely speculative but have been introduced in various States. Any additional options open to the Committee would also improve its scrutiny of the more usual types of delegated legislation apart from quasi-legislation.

Another significant aspect of the work of the Committee since the previous Sitting has been the holding of Conferences, Meetings and Seminars which have discussed the issues and challenges of bipartisan, technical, legislative scrutiny.

The most important of these was the Second Conference of Australian Delegated Legislation Committees, held in Parliament House from 26-28 April 1989. The Conference was opened by His Excellency the Governor-General, the first occasion on which the new Governor-General conducted a function in Parliament House. His Excellency was introduced to the delegates by the President of the Senate.

The Conference was attended by some 50 delegates from the Commonwealth, the Northern Territory and all States except Tasmania, where delegates had to withdraw due to the State election. Overseas delegations attended from Botswana, the British Virgin Islands and New Zealand. The working sessions of the Conference were chaired by members of the Committee. Major papers were delivered by the Legal Adviser to the Committee, Emeritus Professor Douglas Whalan; the Commonwealth Ombudsman, Professor Dennis Pearce; the President of the AAT, His Honour Justice Trevor Hartigan; the Chairmen of 2 State delegated legislation committees, Ken Jasper MLA from Victoria and Bob Hetherington MLC from Western Australia; a former Chairman of the Senate Committee, Senator Austin Lewis, and the Chairman of the Committee, Senator Bob Collins.

The papers presented dealt with current issues in the scrutiny of delegated legislation. Those from the parliamentarians emphasised the bipartisan and non-policy nature of the work of their Committees; those from the other distinguished contributors dealt with the effect of legislative scrutiny on public administration, legislative scrutiny techniques and the place of legislative scrutiny in the general system of administrative law. The papers were all the subject of considerable discussion.

Members of the Committee participated in the Conference: Senator Collins and the Deputy Chair of the Committee, Senator Bronwyn Bishop, both chaired several working sessions; other members of the Committee, Senators Pat Giles, Kay Patterson, John Stone and Bob McMullan, also chaired working sessions, introduced speakers, led discussions and hosted functions.

The Conference unanimously agreed that all committees investigate and report on the nature, the extent and the implications for delegated legislation committees of the proliferation, within the Commonwealth, the States and the Territories, of legislative and quasi-legislative instruments which are either not subject to parliamentary scrutiny and control, or whether so subject or not, represent a developing trend towards executive law-making. As noted earlier in this statement, the tendency towards quasi-legislation is perhaps the greatest challenge facing legislative scrutiny committees.

The Conference also resolved that it would accept the offer of the Western Australian Delegated Legislation Committee to host the Third Conference in Perth in 1991.

The entire proceedings of the conference were recorded by Hansard and will be produced in a convenient form, tabled for the information of the Senate and made available for distribution to the public. Senator Kay Patterson has taken a particular interest in the dissemination of the proceedings to educational institutions.

As a complement and a foil to the Conference the secretariats of the Regulations and Ordinances Committee and the Scrutiny of Bills Committee held a series of seminars for middle managers from Commonwealth departments and statutory authorities. More than 60 public service managers attended the seminars. Working sessions were conducted by the Clerk and Deputy Clerk of the Senate, by staff of the Procedure Office, by the Legal Advisers of the Committees, and by departmental officers. The purpose of the seminars was to emphasise the standards and principles of the Committees and to offer assistance in their implementation. Valuable personal contacts were made at the seminars, which have assisted the Committee secretariats in their work. In addition, suggestions made by middle managers in relation to processing documentation for the Committees have already been implemented.

Recently the Regulations and Ordinances Committee and the Scrutiny of Bills Committee jointly hosted a meeting with the Administrative Review Council, one of the most important organisations in the Commonwealth administrative law system. The meeting allowed the Committee and Council members and their respective staffs to discuss their roles and operation. The meeting was addressed by the Chairman of the Regulations and Ordinances Committee, Senator Collins; by the Chairman of the Scrutiny of Bills Committee, Senator Cooney; and by the President of the ARC, Dr Cheryl Saunders.

Senator Collins emphasised the possible danger of new final specialist tribunals diluting the functions of the AAT itself, Senator Cooney discussed Ministerial discretion and administrative review, while Dr Saunders stressed the need for the Council and Parliamentarians to exchange views regularly on developments in administrative law and the role of the law in making public administration fair and accountable.

The program of conferences and seminars is to continue. Further middle management meetings will be held, in order to cover as wide a number of participants as possible and to meet the keen demand evident from the first 2 seminars. Other conferences are being arranged for senior management and for professional legislative drafters. As noted later in this statement, the Committee has also offered to provide assistance should the new Legislative Assembly for the ACT decide to establish legislative scrutiny machinery.

These seminars are particularly important, not only to disseminate the standards and principles of the Committee, but to influence the administrative pro- cesses during which delegated legislation is formulated and made. They emphasise prevention rather than cure and represent the pre-emptive rather than the re-active nature of the Committee's operations. The seminars complement Committee hearings, which are usually in respect of a single instrument. The seminars, on the other hand, are designed to improve compliance with the Committee's concerns over the whole range of delegated legislation.

On 11 May 1989 the new Legislative Assembly for the ACT met for the first time and Commonwealth statutory provisions were proclaimed which transferred responsibility for most ACT Ordinances to that Assembly and for most ACT Regulations and similar instruments to ACT Ministers. Those Ordinances and the delegated legislation made under them are, therefore, no longer tabled in the Parliament and of course are not subject to scrutiny by the Committee. The transferred ACT Ordinances were deemed Acts and any future amendments or new legislation will be made by the ACT legislature and not by a Commonwealth Minister.

Many of the transferred Ordinances and instruments were amended as a result of Ministerial undertakings following initiatives of the Committee and their standard of protection of personal liberties and maintenance of parliamentary proprieties thereby improved. In its examination of ACT Ordinances the Committee had functioned as a de-facto scrutiny of bills committee. ACT Ordinances, while legally delegated legislation, in practice dealt with substantive discrete issues in the same way as Commonwealth or State Acts, and actually provided for Regulations and other instruments to be made under their authority.

On the date of self-government some recent undertakings given to the Committee by the Minister had not been implemented and there was corres- pondence outstanding. This matter had been addressed previously and on 31 August 1988 the then Minister for the Arts and Territories, the Hon Gary Punch MP, wrote to the Chairman that he would direct his departmental staff to clear outstanding undertakings if possible. If this could not be done then the Minister would recommend to the new ACT government that appropriate and urgent amendments be made. On 11 May 1989 the Chairman wrote to the then Minister, the Hon Clyde Holding MP, reminding him of this undertaking.

The Chairman also wrote to the Speaker of the Legislative Assembly for the ACT inviting a delegation of members from the new legislature to meet with the Regulations and Ordinances Committee and the Scrutiny of Bills Committee to discuss technical legislative scrutiny and to assist the ACT legislature to adopt similar machinery should they wish to do so.

The members of the Committee take this opportunity to thank their colleagues in the Senate for their continuing support and commitment to its bipartisan work.