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Wednesday, 26 June 1996
Page: 2171

Senator O'CHEE —On behalf of the Standing Committee on Regulations and Ordinances, I give notice that, at the giving of notices on the next day of sitting, I shall withdraw business of the Senate notice of motion No. 1 standing in my name for three sitting days after today for the disallowance of the Air Navigation Regulations (Amendment), as contained in Statutory Rules 1995 No 342; and business of the Senate notice of motion No. 3 standing in my name for seven sitting days after today for the disallowance of the Air Navigation (Aircraft Engine Emissions) Regulations (Amendment), as contained in Statutory Rules 1995 No 277. I seek leave to make a short statement.

Leave granted.

Senator O'CHEE —On 23 and 30 May 1996, I reported to the Senate on the committee's concerns with these instruments, which related to discretions which may not be subject to merits review, inadequate identification requirements, undefined wide powers and an offence with no apparent penalty. The relevant minister has now provided the committee with information which meets our concerns. The committee is grateful for this cooperation. I seek leave to incorporate in Hansard the committee's correspondence concerning these regulations, and the usual end of sitting statement about the work of the committee.

Leave granted.

The correspondence and statement read as follows

Air Navigation (Aircraft Engine Emissions) Regulations Statutory Rules 1995 No 277

19 October 1995

The Hon Laurie Brereton

Minister for Transport

Parliament House


Dear Minister

I refer to the Air Navigation (Aircraft Engine Emission) Regulations, Statutory Rules 1995 No.277, considered by the Committee at its meeting of 19 October 1995.

Subregulation 6(2) provides that the Secretary or an authorised officer may grant a permit exempting aircraft from provisions of the legislation; subregulation 6(3) provides that the Secretary or the authorised officer may impose conditions on a permission; and subregulation 6(4) provides that a permission must specify a period of up to a month during which the aircraft is exempt.

Subregulation 9(1) provides that a decision under subregulation 6(2) to refuse to give a permit, or to revoke a permit, is reviewable by the AAT. However, there does not appear to be any express provision under which decisions about conditions or times of exemption are reviewable. The Committee believes that, if subregulation 9(1) does not include decisions made under subregulations 6(3) and (4), the Regulations should be amended to provide for this right. The Committee would appreciate your cooperation.

Yours sincerely

Mal Colston


13 June 1996

The Chairman

Senate Standing Committee on Regulations

and Ordinances

Parliament House


Dear Chairman

I refer to the letter of 19 October 1995 from Senator Colston, the previous Chairman of the Senate Standing Committee on Regulations and Ordinances (the Committee) to the former Minister for Transport, the Hon L Brereton MP, concerning the Committee's request to amend the Air Navigation (Aircraft Engine Emissions) Regulations. I understand that the Department of Transport advised the Committee Secretary during the caretaker period of Government that this matter would be taken up with the incoming Minister.

I concur with the Committee's view that the above Regulations omit to provide for an appeal to the Administrative Appeals Tribunal (AAT) for decisions under subregulations 6(3) and (4). As you have noted, the Regulations provide for a decision to refuse or revoke a permit to exempt an aircraft from the provisions of the legislation to be appellable to the AAT.

In order to achieve a consistent approach towards access to the AAT for all administrative decisions made under these Regulations, I have directed my Department to prepare an appropriate draft amendment to the Air Navigation (Aircraft Engine Emissions) Regulations.

Yours sincerely

John Sharp

Minister for Transport and Regional Development

Air Navigation Regulations (Amendment) Statutory Rules 1995 No 342

25 January 1996

The Hon Laurie Brereton MP

Minister for Transport

Parliament House


Dear Minister

I refer to the Air Navigation Regulations (Amendment), Statutory Rules 1995 No 342.

New r.309H(1) requires a regulated agent to give effect to the agent's international cargo security program. New rr.309H(3) and (4), however, provide for the Secretary to exempt an agent from r.309H(1). There does not appear to be provision for review of this discretion, which could affect business operations. In this context, r.309M provides for review by the Administrative Appeals Tribunal of discretions provided by five other new regulations in the present set of Regulations. The Committee asks whether the omission of r.309H discretions was intended and, if so, of the reasons for such omission.

The Regulations give wide powers to authorised officers. However, the principal Regulations properly provide that before exercising these powers in relation to a person an authorised officer must produce a suitably endorsed photographic identity card. The Regulations also give powers to security officers. However, although security officers who are members of a uniformed security force or persons employed by an airport operator for the purpose of security must produce identification, there is no requirement for this to include a recent photograph. The Committee would appreciate your comments.

New rr.311C(3)(d) and 311CAA(2)(d) provide that an authorised person has power "to discuss" operating procedures with specified crew and employees. It is unclear how far these powers extend. For instance, the provisions do not include the usual requirement that people must answer questions, with protection against self-incrimination. What is the obligation, if any, of an employee or crew member to take part in any discussion? May an employee refuse to answer questions? The Committee notes that there is a penalty of $5,000 if the authorised person is not permitted to exercise the power and if there is no reasonable excuse. Would it be a reasonable excuse if an employee or crew number declined to discuss procedures with an authorised person? The Committee would appreciate your advice.

New r.309F(3) provides that a regulated agent must comply with a direction of the Secretary, while r.309F(4) provides that an agent must not contravene subregulation (3) intentionally or recklessly. No pecuniary penalty is fixed, although under r.309J(1)(d) the Secretary may remove a regulated agent's name from the list of air cargo agents if the agent breaches r.309F(4). However, an intentional or reckless breach of a direction of the Secretary under r.309K attracts a penalty of $5,000 as well as possible removal from the list. The Committee would appreciate your advice on the reasons for the substantial pecuniary penalty in one case but not in the other.

Yours sincerely

Mal Colston


May 1996

Senator Mal Colston

Senator for Queensland


Senate Standing Committee, Regulations and Ordinances

Parliament House


Dear Senator Colston

I refer to your letter of 25 January 1995 to the former Minister for Transport concerning the Air Navigation Regulations (Amendment) , Statutory Rules 1995 No 342.

In your letter you set out a number of questions, covering aspects of the Regulations, that have been raised by the Committee.

I have attached for your information, advice which I have received covering the Committee's questions.

Yours sincerely

John Sharp

Minister for Transport and Regional Development



Appeals to the Administrative Appeals Tribunal (AAT)

The Committee asks whether the omission of regulation 309H, from the list of decisions of the Secretary that are appellable to the AAT under regulation 309M, was intended. The omission was intended.

The Regulations apply the general policy, in the matter of administrative appeals, of providing an appeal in relation to all decisions that may potentially act against the interests of a person affected by the decision. For example, a decision by the Secretary to reject a proposal (including a one-off proposal) of a regulated agent to modify the agent's cargo security measures under regulation 309G is appealable to the AAT.

Cargo security measures implemented by an agent are outlined within the agent's international cargo security program. The program is a document of the agent, in that the agent prepares the program and sends a copy to the Secretary. The agent is accountable for implementing the cargo security measures outlined within its program. Where the Secretary is satisfied that the program is adequate for the purposes of aviation security (as outlined under regulation 309D), the Secretary may list the agent as a Regulated Agent.

A decision of the Secretary to exempt an agent, under subregulation 309H(4), does not involve a potential to act against the interests of a person affected by the decision. Rather, a decision of the Secretary under subregulation 309H(4) has the effect of removing an obligation from the affected Regulated Agent, an obligation that the Regulated Agent freely entered into in the first place.

In addition, an agent faced with a refusal of the Secretary to agree to an exemption against its program can seek an amendment to its program covering the exemption under Regulation 309G (which allows an AAT appeal).

Identification cards for security officers

The Committee notes that, under regulation 311CAAA, security officers may request an individual to identify himself or herself. The Committee further notes that security officers who are members of a uniformed security force and persons employed by the operator of a categorised airport for the purpose of airport security are required to produce their identification card, or another appropriate form of identification, when exercising this power. The Committee asks why there is no requirement for the identification to include a recent photograph of the security officer.

There is a scheme covering identification cards for use within security restricted areas of Australia's airports—the Aviation Security Identification Card (or ASIC) scheme. Security officers are one of the classes of persons required to wear ASICs. A primary (and mandatory) feature of the ASIC is a photograph of the ASIC holder. ASICs have a fixed period of validity and must be renewed at least once every 5 years. As a result, the photograph of the ASIC holder, printed on the front of the ASIC, cannot be more than 5 years old.

However, the Committee's point in this matter is acknowledged and the drafting of an amendment will be requested for subregulation 311CAAA(3) to require security officers (described in paragraph 311CAAA(1)(b) or (c)), when exercising their powers (including in areas other than security restricted areas of airports), to produce an identification card that includes a recent photograph which is to be no more than 5 years old.

Powers of authorised officers to discuss procedures with industry

The Committee notes that, under paragraphs 311C(3)(d) and 311CAA(2)(d), authorised officers are empowered to discuss procedures with aircraft crew; or employees of an aircraft operator, an airport operator or a Regulated Agent. The Committee believes that it is unclear how far these powers extend.

The intention of these provisions is merely to ensure that the normal conduct of authorised officers (ie, specified officers of the Department of Transport and Regional Development), when carrying out aviation security audits of industry, is within power and may not be impeded by the employer. Aviation security audits of industry bodies, by officers of the Department, normally involve the officers observing and inspecting the security procedures performed by airlines, airport operators and regulated agents.

The Regulations provide that authorised officers may stay within relevant premises during the audit process and may observe and inspect procedures performed in those premises. The legal effect of this power (and of the offences under subregulations 311C(6) and 311CAA(3) is that airlines, airport operators or regulated agents may not eject authorised officers from the premises for trespass during the conduct of an authorised aviation security audit. In relation to off-airport premises, these audit powers only exist in relation to audits conducted during a reasonable time (eg, during normal business hours) and only after the authorised officer has given notice of the audit.

These powers also include the power to discuss procedures with industry staff. That is, the Regulations provide that, in the event that authorised officers discuss procedures with industry staff, the authorised officers are not acting beyond their powers. The provision is designed to prevent an aircraft operator, airline operator or regulated agent from impeding a discussion between a Departmental officer and an employee during the course of an audit. There is no compulsion in the Regulation on employees to answer questions. The reason for this is that much of the activity being assessed will be apparent to Departmental staff from personal observation or sighting documentation, the purpose of discussion would be to clarify what has been already been observed.

In answer to the Committee's specific questions, an employee may refuse to answer a question put by an authorised officer. The obligation in the Regulation is on the aircraft operator, airline operator or regulated agent not to prevent a discussion occurring.

Penalties under the cargo offences

The Committee notes that, under regulation 309K, a Regulated Agent failing to comply with a Secretary's direction (relating to measures and resources to be used by the agent in responding to a threat) is guilty of an offence. The penalty is 50 penalty units. The Committee also notes that an agent must also comply, under Regulation 309F, with a direction of the Secretary to amend its cargo security program. However, an agent failing to comply with a direction under regulation 309F is not guilty of an offence. The agent is merely subject to an administrative action—the agent's removal from the Regulated Agents list.

The Committee requests advice on the reasons for the substantial pecuniary penalty in one case but not in the other.

The Regulations introduce new aviation security standards for the handling and carriage of Australian outbound international air cargo. Cargo security controls are required to be applied by either the airline carrying the cargo or an air cargo agent who has elected to perform the controls on the cargo it handles and who has been registered with the Secretary. This allows security controls applied by agents to be recognised by the airline carrying the cargo.

The Regulations do not specify the detailed security standards to be implemented for the handling of cargo. These are detailed within the security programs of international airlines and those agents who elect to become Regulated Agents. A Regulated Agent could, at any time, elect to opt out of the scheme, in which case the cargo security controls would be applied by another person eg, the airline carrying the cargo. An agent who elects to opt out would not be guilty of an offence.

Regulation 309J outlines the circumstances in which the Secretary may de-list an agent. The effect of de-listing an agent is that the security controls applied by the agent are no longer able to be recognised by airlines carrying international cargo.

Regulation 309F allows the Secretary to give notice to a regulated agent to amend its program, in the event that the Secretary is satisfied that the program is not adequate. For example, the nature of cargo normally handled by a regulated agent could change over time, requiring an equivalent change in the security measures implemented by that agent.

The intention is to view an agent, who fails to comply with a direction to amend a program, in the same way as an agent who elects to opt out of the cargo scheme. In both cases, the agent has decided no longer to apply security controls over the cargo it handles. Also in both cases, the decision of the agent is transparent to the Secretary and alternative measures may be made in relation to the cargo. The power to issue directions to agents under Regulation 309K is a part of the arrangements necessary to implement appropriate security counter-measures which are generally time critical. Any delay could substantially reduce the effectiveness of any industry-wide threat response. Because such a direction is initiated by the Secretary and not requested by the agent, it may not be immediately transparent to the Secretary that a regulated agent is not complying with a direction issued under regulation 309K.

The intention is for the obligation under regulation 309F to be of a significantly less serious nature than the obligation under regulation 309K. An agent's decision to `opt out' of the cargo scheme under regulation 309F is able to be fully addressed through administrative means and it is not necessary for criminal proceedings in such a case. However, administrative means are not available with a failure to comply with regulation 309K and it is necessary to create an offence for regulated agents failing to comply with this obligation. In view of the serious consequences (refusing to implement counter-measures to a real threat to aviation), it is considered appropriate for the offence to contain a substantial pecuniary penalty.

Standing Committee on Regulations and Ordinances Statement on work of Committee during Autumn and Winter Sitting 1996


During the present sittings the Committee maintained its non-partisan scrutiny of the continuing large number of disallowable instruments of delegated legislation tabled in the Senate. In the course of the sittings the Committee scrutinised 1021 such instruments. Only 199 of these were in the Statutory Rules series, which are generally better drafted and presented than other series. This is a trend that has been evident for some years. The other 822 instruments were the usual heterogeneous collection of different series.

The Committee acts on behalf of the Senate to scrutinise each of these instruments to ensure compliance with its four principles, which cover all aspects of personal rights and parliamentary propriety. If the Committee detects any breach of these principles it writes to the Minister or other law maker in respect of the apparent defect, asking that the instrument be amended or an explanation provided. If the breach appears serious then the Chairman of the Committee gives a notice of motion of disallowance in respect of the instrument. This allows the Senate, if it wishes, to disallow the instrument. This ultimate step is rarely necessary, however, as Ministers almost invariably take action which satisfies the Committee.

The concerns raised by the Committee are described below under each of the four principles which constitute its terms of reference.

Principle (a): Is delegated legislation in accordance with the statute?

This principle is interpreted broadly by the Committee. Together with the Committee's fourth principle, it covers not only technical validity, but also every other aspect of parliamentary propriety.

Technical validity, however, is an important aspect of the Committee's work. For instance, in the absence of express authority in the enabling or another Act, delegated legislation may not itself delegate the power to legislate. This was a problem with four separate instruments, relating to purported authority to make rules, determinate dates and set the conditions of performance pay. Also, unless authorised by an Act, instruments which operate with prejudicial retrospectivity are void. Three instruments appeared to operate in this way, all of which affected people engaged in commercial operations. Unless authorised by an Act, instruments may not incorporate material as amended from time to time, other than an Act or regulations. One instrument, also affecting commercial operations, purported to incorporate not only Acts as amended but also Acts as replaced.

Any provisions relating to making instruments which are specific to a particular Act must be observed, as must the general law relating to such making. One instrument purported to be made under two provisions although it appeared that it could only be made under one or the other. One instrument could only be made by an authority, but it purported to be made by the Chairman of the authority. Another instrument gave no indication that lengthy and detailed mandatory requirements for making had been followed. Another instrument which the Act required to be made as soon as possible was made eight years later. An instrument required to be tabled as soon as possible after making was tabled more than six months after that date. Two Acts required a series of delegated legislation to be numbered consecutively in the order in which instruments were made, which was not done. One instrument purported to be made by one officer but was signed by another. Another instrument purported to amend an earlier instrument which had ceased to have effect because it was not tabled. Another purported to impose conditions on a process although there was no power to do so. The Explanatory Statement for another instrument advised that Australian law was unclear on whether a particular levy was a tax or a contractual payment. One instrument inadvertently advantaged some people. The Explanatory Statement for an amending instrument which corrected the errors advised that in the meantime the inadvertent provisions were administered as they were intended to provide, not as they actually provided.

The Committee had concerns about aspects of other instruments. One instrument created an offence, but did not provide a monetary penalty. Another instrument set a maximum liability for specified torts, but did not determine whether this was for one or more tortious acts or whether the limit was for one or more claimants. One set of regulations repealed certain Australian international sanctions, while another related set suspended them. One instrument provided for blanket procedures, when specific procedures appeared to be more appropriate, while another provided for blanket procedures although two weeks earlier an instrument in the same series provided for a specific case. One instrument provided for a Commonwealth-State agreement but did not mention mainland territories. Another instrument provided for commencement merely from March 1996 without a specific day in March.

Many instruments provide for aspects of taxes and charges. These are scrutinised by the Committee to ensure that they comply with parliamentary propriety. The Explanatory Statements for a number of instruments did not advise of the basis for increases in taxes or, in one case, of a large and unexpected increase in fees. Another instrument provided for a certificate to cost $13.65 and a replacement certificate $270. The Committee also questioned a quarantine charge of $875,000 for any consignment of any animals for one year. One instrument increased a number of allowances by 35%, but increased a similar allowance by only 12%.

The Committee scrutinises the technical drafting and presentation of delegated legislation, with the object of ensuring that its quality is not less than that of Acts. One instrument used permissive rather than mandatory expressions when providing for an intended benefit. Another included the same numbers twice in a table. One instrument included two identifier numbers, which have previously resulted in tabling under one number in the House of Representatives and under another in the Senate. Other instruments had no numbering. Some instruments were made after an apparent delay; one was made to address issues which arose nine months earlier, one was made one year after the events to which it refers, while another was made after such delay that relevant allowances were increased by one third. One instrument appeared to fail to effect its legislative intent. Other instruments included drafting errors and inaccurate references. One provided for an unusually wide power of delegation. Another included obsolete expressions such as fireman, lineman and laundryman. Others included vague and subjective expressions. The Explanatory Statements for several instruments did not advise that they were made to implement undertakings given to the Committee. The Explanatory Statement for another did not advise why a sunset provision was being extended.

Principle (b): Does delegated legislation trespass unduly on personal rights and liabilities?

The Committee interprets this principle widely, to cover every aspects of personal rights. For instance, the Committee ensures that prescribed processes are as open as possible. Concerns during the present sittings included one provision which provided for time limits within which some decisions, but not others, had to be made. Another provision provided for reasons for some decisions, but not others, to be given. One instrument provided for reasons to be given in a notice unless this was not in the public interest, but did not include a provision to inform the recipient in relevant cases why reasons were not given. Another provided for notification of some decisions, but not others. Another provision required some decisions, not others, to be made personally by the Minister. One instrument provided for refund of a dispute notification fee while another did not. Another instrument did not provide an opportunity for a person to respond to adverse material. Another provision did not provide a show cause process for a detrimental decision. Another instrument provided that a licence suspension ceased to have effect after 28 days but that the licence could then be suspended again.

The Committee also questions any apparent breaches of privacy. One instrument provided that certain privacy protections did not apply to information divulged to a Minister, thus diluting existing provisions. Another instrument required company officers to disclose their date and place of birth and, in other provisions, to disclose their date of birth. In respect of another instrument, the Committee asked whether the Privacy Commissioner had been consulted on amendments of the spent conviction scheme.

The Committee questions any provisions which may be harsh or unreasonable. A form of summons to witnesses made no reference to witnesses' expenses. Another instrument provided for a disparity in the level of allowances to witnesses, with the maximum and minimum amounts payable to those called because of their scientific skills and knowledge being greater than for those called for other reasons. One instrument granted qualified privilege to supervisors performing duties under business rules, with no indication of what constituted those rules. Another instrument provided only six days for employees to elect to change from one superannuation scheme to another. Another instrument, made on 26 February 1996, required a person to obtain an annotated certificate from authorities in Europe by 31 March 1996. One instrument gave public officials power to `discuss procedures' with employees, with a penalty of up to $5000 for people who did not permit this. Another instrument made inadequate provision for identification of public officials who could exercise wide powers. These inadequate provisions included only vague reference to identity documents, with no requirement for photographic identification. One series of instruments appeared to make inadequate provision for overtime allowances for Commonwealth employees.

The Committee ensures that individuals are not charged for costs which should be the responsibility of the Commonwealth. One instrument was unclear as to who should bear the costs of destructions of certain goods. Another was unclear about the costs of an agreement with the Commonwealth.

Principle (c): Does delegated legislation make rights unduly dependent on administrative decisions which are not subject to independent review of their merits?

Delegated legislation often provides for Ministers and other public officials to exercise discretions. Such discretions should be as narrow as possible, include objective criteria to limit the exercise of the discretion, and provide for appropriate review of the merits of a decision to an external, independent tribunal, which would normally be the Administrative Appeals Tribunal.

Two instruments included a double discretion. One granted a public official a discretion both to decide on the amount of an overpayment and then to decide on whether to repay it. The other granted the Minister, or in practice the Minister's delegate, a discretion both to decide on whether an activity is for certain purposes and then to decide whether to refund it. The Committee suggested that in both these instruments the first discretion should be subject to AAT review and the second discretion removed. Similarly, another instrument provided a discretion for a public official to waive certain payments if these were due to mistakes by officials. The Committee considered that in this case as well the discretion should be removed.

One instrument provided for a discretion which would have an effect on superannuation payments. No criteria were provided to limit and guide the exercise of the discretion. The Explanatory Statement, however, advised that the discretion would only be exercised favourably if this was clearly justified in the particular circumstances. The Committee believes that such criteria should be included in the body of the instrument and, given the nature of both the discretion and the criteria in this case, that AAT review be provided. Another instrument provided for a public authority to revoke a licence `at any time and for any reason'. Here also the Committee considered that a discretion drafted in such a way should be subject to external review.

Some discretions had a particular effect on individuals. One instrument granted a discretion in relation to travel costs for training courses in respect of nursing homes. Another granted a discretion in respect of accreditation or withdrawal of accreditation to carry on a profession. Other instruments provided for discretions affecting the operation of businesses. One granted a discretion to decide on refunds, remissions or rebates of duty on fuel oil. Another granted a discretion to exempt an operator from an international air cargo security program, with no apparent AAT review, although AAT review was expressly available for other discretions provided for in the instrument. Another instrument also provided for reconsideration or review of some decisions, but not others, affecting woodchip licences. One instrument provided for decisions regarding storage of seized goods. Another discretion was to approve payments by means other than by EFT. Another related to overhaul of civil aviation equipment.

Principle (d): Does delegated legislation contain matter more appropriate for Parliamentary enactment?

This principle is not often raised by the Committee. Nevertheless, it is an important safeguard affecting parliamentary propriety. One set of regulations provided for the modest penalty of $1000 for fishing boats which operated without a Tori Pole, which helps prevent sea birds, particularly the Wandering Albatross, from being caught on baited hooks. This penalty, although light, was the highest that could be imposed under the enabling provisions for the regulations. The Committee asked the Minister whether the offence could be provided for under the Act, which included penalties of $50,000.

Other developments

In addition to its core activity of scrutinising legislative instruments, the Committee was active in other ways during the sittings.

New members were appointed to the Committee on 2 and 8 May 1996 following the commencement of a new Parliament on 30 April 1996. At its first meeting on 23 May 1996, the Committee elected Senator Bill O'Chee as Chairman. The Chairman then appointed Senator Mal Colston as the Deputy Chairman.

On 23 May 1996 the Chairman made a special statement to the Senate on the first meeting of the Committee during the new Parliament.

On 25 June 1996 the Chairman tabled its 103rd Report, Scrutiny by the Committee of the Export Inspection and Meat Charges Collection Regulations . The Report describes how the Committee formally resolved to recommend that the Senate disallow a regulation unless the Minister undertook that day to amend the regulations to meet its concerns. The Report advises that the Minister did this.

On 25 June 1996 the Chairman made a special statement to the Senate on scrutiny by the Committee of delegated legislation affecting civil aviation.

The Chairman, Senator O'Chee, and the Deputy Chairman, Senator Colston, attended a meeting of Chairs of Commonwealth, State and Territory legislative scrutiny committees to discuss scrutiny of national uniform legislative schemes.

On 19 and 20 June 1996 the Committee hosted a visit by the Chairman and staff of the Scrutiny of Legislation Committee of the Queensland Parliament.

On 13 June 1996 the Committee Secretary met with a visiting Professor from Queens University, Ontario, Canada.

The Committee staff prepared the 1995 Delegated Legislation Monitor , a definitive reference for details of all disallowable legislative instruments tabled in the Senate in 1995. The staff also prepared weekly Monitors for delegated legislation tabled in 1996.

The Committee is grateful for the support which it has received from all Senators during the past sittings.