Special statement on ministerial undertakings
One of the most important elements of the operations of the Standing
Committee on Regulations and Ordinances is the practice of accepting undertakings
from Ministers to amend or to take other action in relation to legislative
instruments about which the Committee has concerns. The Committee accepts
such undertakings even though amendment will take place in the future,
in order to ensure that the implementation of policy and day to day administration
of programs continues smoothly. When it accepts such undertakings the
Committee withdraws any protective notice of disallowance which it has
placed on the instrument, or refrains from giving a notice if it has not
already done so. The Committee therefore relies on the good faith of Ministers
to implement promptly any undertakings.
Prompt and timely implementation of undertakings is central to the success
of the practice which the Committee has adopted. Failure to honour this
principle could constitute a breach of parliamentary propriety and a breach
of ministerial ethics. It is also deplorable because delay in implementation
means that legislative instruments not only identified by the Committee
but also accepted by the Minister as defective in relation to parliamentary
propriety or personal rights, continue to be in effect and presumably
be administered to the detriment of public life and to those people affected
by the deficient instruments.
The Committee records and monitors the progress of ministerial undertakings
and each Annual Report describes undertakings implemented during the reporting
period and those which are still outstanding. Also, due to the efforts
of the Committee, Explanatory Statements for instruments which implement
undertakings advise of that fact. The Annual Report 1997-98 listed 87
instruments in relation to which undertakings had been implemented or
were still outstanding. Unfortunately 42 of these were still outstanding
and the Committee decided to take further action.
The Committee accordingly wrote to every Minister in whose portfolio
responsibility there were outstanding undertakings, asking for reasons
why the undertaking has not been implemented and for advice on when this
would be done. The letter also asked for the date on which the portfolio
agency had issued drafting instructions for the required amendments. The
letter indicated that in the absence of a satisfactory explanation for
delay the Committee intended to ask suitably senior agency officers to
appear before it to explain the position in detail. The Committee asked
if the matter could be given a high priority for attention.
The Committee can now report that it has received replies from Ministers
which indicate that virtually all of the undertakings have been implemented,
or that drafting of amending instruments has been completed or drafting
instructions issued. This was pleasing, particularly because sometimes
undertakings are qualified by saying that they will be implemented when
the principal instrument is next amended. In several other cases a review
of the program or an amendment of the enabling Act or the instrument had
resulted in the concerns of the Committee not being met. In cases where
a review was still in progress or was about to be initiated the Minister
usually expressly assured the Committee that its concerns would be accommodated.
In one case the Committee was advised that regulations had not been implemented
due to an oversight, but that this would be rectified as soon as possible.
Overall, the replies from Ministers demonstrated an awareness of the importance
of an undertaking given to the Committee and of its prompt implementation.
The replies did, however, reveal one matter that was not satisfactory.
In this case regulations gave an agency the power to decide subjectively
which matters were relevant to arbitration of a dispute, and then to take
them into account when making a determination. This provision was in contrast
to two other provisions where the agency was either bound or permitted
to take account of matters which are objectively relevant to the issue.
In reply to the Committees query, the Minister advised that the
regulations would be amended at the next available opportunity to make
them consistent. The Committee assumed that this meant that the power
would be made objective, but it appears that the Minister meant that another
of the powers would be made subjective. The Committee is pursuing this
In two cases the Minister advised that, although undertakings had not
yet been implemented by formal amendment, administrative action had been
taken to meet the Committees concerns pending amendment of the respective
instruments. In each of these cases this was a less than satisfactory
response because the deficiencies in question involved personal rights,
which is an area where problems noted by the Committee should be addressed
as soon as possible. One of the cases involved a lack of mandatory notice
of safeguards for administrative penalties imposed by public officials,
which the Minister advised was remedied by a detailed information sheet
attached to infringement notices. The other case, which was particularly
relevant in the light of recent discussion of the international organisation
of the Olympic Games, concerned the Australian Sports Drug Agency Regulations
made expressly to enable the Agency to provide leadership in the fight
against the use of prohibited drugs in sport up to and beyond the Sydney
2000 Olympics. Here, following inquiries by the Committee, administrative
action was taken to protect the rights of intellectually disabled athletes
and of commercial companies dealing with the Agency. In both the present
cases drafting instructions have now been issued.
In a number of cases Ministers had given an undertaking to amend the
enabling or some other Act to meet the Committees concerns. In one
such case the required amendments had been passed by the House of Representatives
but were still being considered by the Senate and consideration of another
had reached an advanced stage with drafting instructions to be issued
shortly. In another case the Minister advised that a particular program
did not proceed and an undertaking was inadvertently overlooked. However,
the Minister had asked the agency for advice on the amendments to the
Act necessary to meet the undertaking and would advise the Committee when
this was received. In two other cases the undertaking had been delayed
due to the need to amend the enabling Act before implementation could
Other undertakings were affected by changes in the enabling Act. In two
cases the Minister advised that amendments of the enabling Act resulted
in the particular undertakings becoming unnecessary because the relevant
legislative provisions had been superseded. In another case the Minister
advised that extensive amendments of the Act following a major review
had delayed implementation of undertakings, although draft amendments
of the required regulations had now been received. In another similar
case the Minister advised that amendments of regulations which had now
been finalised had been delayed by the commencement of amendments of the
One particularly important area for the Committee to monitor is undertakings
relating to national uniform legislative schemes. There are presently
four separate undertakings outstanding to amend regulations made under
the road transport reform national scheme, which provided for model laws
which would then be enacted by all the States and Territories. The legislation
also provided for a Ministerial Council which had to approve model laws
and any amendment of them. The different Acts which set the broad framework
of the scheme did not themselves include any substantive provisions regulating
vehicles or traffic, but instead provided for this to be done by regulation.
The Committee considered the regulations comprising the different modules
of the scheme and over a two year period received undertakings to amend
to remove strict liability offences, to provide for AAT review and to
improve safeguards for administrative penalties. The Minister also advised
that the regulations would not commence before the amendments were made.
The Committee reported in detail on these undertakings on 19 September
1995, Senate Hansard p.976, and 12 March 1998, Senate Hansard p.892.
The Minister has now advised that amendments have been drafted in relation
to two of the four sets of regulations although final clearance still
has to be obtained from the Australian Transport Council and all of the
State and Territory governments. However, this was acceptable in light
of the Ministers assurance that the original regulations would not
commence until amendments had met the Committees concerns. The Minister
also advised that it is unlikely that the other two will commence because
a review was about to be initiated. The National Road Transport Commission
has advised, however, that any revised regulations will take into account
the concerns of the Committee.
There are a few matters arising out of this exercise which require further
action, but in general the Committee can report that the position in relation
to implementation of undertakings given to the Committee is broadly acceptable.
The Committee intends to continue to monitor closely compliance with undertakings.
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