Statement on work of the Committee during the Spring Sittings 1998
During the present short sittings the Committee scrutinised 707 legislative
instruments. This number, although historically large, is somewhat less
than usual, no doubt due to the caretaker period of government in relation
to the election. These instruments were made under the authority of scores
of enabling Acts administered through virtually every department of state.
Almost every legislative scheme relies on legislative instruments to provide
the administrative detail of programs set out in broad policy in enabling
Acts which authorise those instruments.
The Committee acts on behalf of the Senate to scrutinise each of these
instruments to ensure that they conform to the same high standards of
parliamentary propriety and personal rights which the Senate applies to
Acts. If the Committee detects any breach of these standards 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 notice
of a 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 invariable take action
which satisfies the Committee.
As usual, by the end of the sittings Ministers have given the Committee
undertakings to amend many provisions in different instruments or enabling
Acts to meet its concerns, reflecting a continuing high level of cooperation
from Ministers in its non-partisan operations. The Committee is grateful
for this cooperation.
Of the 707 legislative instruments scrutinised by the Committee, 163
were statutory rules, which are generally better drafted and presented
than other series of legislative instruments. The other 544 instruments
were the usual heterogeneous collection of different series.
The Committee scrutinised each of the 707 instruments under its four
principles, or terms of reference, which are included in the Standing
Orders. There were 85 apparent defects or matters worthy of comment in
those 707 instruments. The defects are described below under each of the
Are legislative instruments in accordance with the statute?
The Committee interprets this principle broadly. It includes not only
technical validity but also every other aspect of parliamentary propriety.
The Committee noted that there may have been deficiencies in the following
Legislative instruments must comply with the provisions of both the enabling
Act and umbrella provisions of any other relevant Acts such as the Acts
Interpretation Act 1901. One instrument purported to be made by a
letter from one official to another, with no making words at all. Several
instruments appeared to subdelegate legislative power, which is invalid
unless expressly authorised by an enabling Act. Another instrument purported
to subdelegate a power of delegation in the Act, seemingly with no authority.
Another subdelegated what the Explanatory Statement advised were matters
related to individual businesses, which would be valid, but the actual
provisions seemed to refer to classes of business, which would be void.
Other instruments appeared to incorporate material as amended from time
to time, which again is invalid unless expressly authorised. Legislative
instruments which provide for prejudicial retrospectivity are also generally
invalid; one instrument provided for apparently prejudicial commencement
six weeks before it was gazetted.
The Committee ensures that no aspect of a legislative instrument breaches
parliamentary propriety. One instrument appeared to indicate that two
separate Departments had been granting exemptions to the Principal Regulations
with no legislative authority to do so. Another instrument amended provisions
of legislative instruments to reflect changed conditions, but there was
no indication of when this would be done for the enabling Act. One instrument
provided for powers to be delegated to any officer at all in an agency,
although other instruments restricted delegations in two related agencies
to more senior officers. Another instrument indicated that its provisions
would be reviewed before 2001 but did not provide details of who was to
conduct the review. The Committee has previously reported to the Senate
(3 December 1998) that it had discovered that proclamations by the Governor-General
commencing three Acts (two of which related to the public revenue) and
consequently many provisions in numbers of sets of regulations, were void.
There were various implications for parliamentary propriety flowing from
this. Another instrument altogether, of 415 pages, which was made by the
Governor-General, had a pink erratum slip glued to the front cover, with
no assurance that the Governor-General was aware of the error and its
The Committee understands that the Australian government bookshop is
still selling copies of the Therapeutic Goods Regulations (Amendment),
Statutory Rules 1997 No. 401, apparently as part of the Principal
Regulations, although they were disallowed by the Senate on 31 March 1998.
It is true that these regulations were in force from 24 December 1997
until disallowance, but are now little more than an historical curiosity.
Such sales may mislead users and it would be preferable if they were sold
only to people who make a specific request.
Drafting and presentation
The Committee considers that the standard of drafting and presentation
of legislative instruments should not be less than that of Acts. Several
instruments included otiose provisions already provided in an enabling
Act. Others included deficient dictionary or definition provisions, one
of which appeared to be circular. Another referred to an investigation
without any provision for an investigation and a report with no indication
of how or to whom the report is to be made. One instrument inadvertently
omitted some words. Several instruments had Explanatory Statements which
were deficient in quality. Several instruments were not numbered. Other
instruments included cross reference errors. A number of multiple sets
of amendments of the same principal instrument was made on the same day.
One instrument 174 pages long did not include a table of contents, which
made it difficult to follow.
The Committee questions any apparent delay in making legislative instruments.
One instrument corrected errors in provisions for the collection of levies
five years later, with a possible lack of a sound legislative basis for
their collection during that time. Another instrument provided for exemptions
from certain provisions four years after Departments were granting them.
One instrument implemented uncontroversial recommendations of a report
three years after it was presented. The Senate Legal and Constitutional
References Committee Report Payment of a Ministers Legal Costs:
Part 2, February 1997, noted that the Department was developing a
proposal to make regulations which in fact were not made until 18 months
Commencement of instruments
During the sittings the Committee noted a tendency to provide for the
commencement of instruments not by reference to a specified date but rather
by reference to commencement of a particular Act. The Committee accepts
that it may be desirable for legislative instruments to be ready to come
into effect at the same time as enabling provisions, but in these cases
the expected date of comment should be included in provisions of the instrument,
in notes in the body of the instrument or in the Explanatory Statement.
Numbers of instruments did not do this, which may inconvenience users.
The Explanatory Statements for these instruments did not even include
reference to the six months rule, under which Acts which commence on proclamation
provide that commencement is deemed if they are not proclaimed within
six months of assent. If the actual expected date of commencement is not
known the Explanatory Statement should explain the reasons for this. Some
instruments dependent upon commencement of Acts did give this information,
but enough did not for the Committee to report the tendency. In some cases
there is no excuse; for instance, one instrument provided for commencement
on the commencement of a specified Act with no further information, while
the Explanatory Statement for another series of instruments advised that
the Act would commence on a particular date. The Committee also could
do nothing but ask about an instrument which provided for commencement
on a specified date although the Explanatory Statement advised that it
would commence on a different date.
Do legislative instruments trespass unduly on personal rights and
The Committee also interprets this principle broadly, to include every
aspect of personal rights. The Committee noted deficiencies in the following
Safeguards on powers of public officials
Legislative instruments which confer powers on public officials to affect
individuals should be reasonable and include appropriate safeguards. One
instrument provided that a form must be returned by a specified date but
a warning on the form itself indicated that the form must be returned
within two months of receipt. The form also warned that if the form was
not returned by the (wrongly) specified date then the Minister may impose
sanctions. This warning was also wrong because the enabling Act provided
only for the Secretary to impose sanctions. The form also did not advise
that any decision to impose sanctions was reviewable. Another instrument
approved six forms in relation to the Chemical Weapons (Prohibition)
Act 1994 but only two of them included a declaration that the information
given was true and correct. There was also no indication in any of the
forms of the consequences, if any, of providing information which was
not true. One instrument provided only that an application must be made
in a manner and form acceptable to an agency. The rules of a court provided
for some application forms but advised that eight others had not yet been
made; the Committee asked when it was likely that these would be made.
One instrument provided for intrusive information in relation to past
trivial offences, for details which may not have been necessary to satisfy
a "fit and proper person" test and for date of birth information
which may not have been justified. Another instrument provided only for
subjective safeguards in a search warrant. Another instrument provided
that an official must accept or reject an application as soon as practicable,
although it may have been preferable to specify a certain period within
which this must be done, which would then trigger review rights. Another
instrument provided that an official may demand information from people
within a period set by the official, with no reasonability safeguard.
The Committee questions any provisions which may operate harshly or which
impinge directly upon rights. One instrument revoked the appointment of
a body because the Minister was apparently satisfied that it had failed
to perform its functions adequately, but there was no indication of the
grounds on which the Minister relied in coming to that conclusion, or
of whether the body was warned of the possibility of revocation and given
an opportunity to present its case. Another instrument exempted an agency
from being sued in Australian courts in relation to "personnel matters",
but neither the Act nor the regulations defined that expression. In another
case the Committee was concerned that people may have been adversely affected
while a drafting error was being corrected. Another instrument provided
that one private body must report all safety incidents to the civil aviation
authorities even though there was no such requirement for a similar private
body. The Explanatory Statements for other instruments gave no assurance
that retrospectivity was beneficial. One instrument provided for the exchange
of personal information between the Department and private financial institutions
in relation to people who wished to participate in a financial supplement
scheme, with no assurances about privacy.
Fees, charges and allowances
Many legislative instruments provide for fees, charges, allowances and
benefits. The Committee questions any such provisions which are unusual
or unexpected. The Committee was disturbed by advice in the Explanatory
Statement for one instrument which generally increased charges for services
by an agency, that charges for training courses were not being increased
because they were already high in comparison with prevailing prices in
the market. The Committee asked whether the agency had been abusing its
position as monopoly supplier and whether the charges should not be reduced.
One instrument increased greatly the types of investigation for which
an agency could recover its expenses from the private body being investigated,
without adequate safeguards. Another instrument provided for certain levels
of charges although the Explanatory Statement advised that other levels
were intended. Other instruments did not explain increases in costs payable
to legal practitioners for work in Commonwealth courts which were many
times greater than the CPI.
Do legislative instruments make rights unduly dependent on administrative
decisions which are not subject to independent review of their merits?
Many legislative instruments provide for public officials to exercise
administrative discretions. The Committee considers that these discretions
should be as narrow as possible, include objective criteria to limit and
guide their exercise, and provide for independent, external review of
their merits by a specialist tribunal such as the Administrative Appeals
One instrument provided that an agency would write to all parents of
children under seven years not shown as being immunised advising them
of the link between child care assistance and immunisation. The enabling
Act provided, however, that the link was only established if the Secretary
was satisfied as to various matters. The Committee asked about review
and whether parents would be informed of any such right. The Committee
was startled by advice in the Explanatory Statement for another instrument
that review would not be available because decisions would be made on
a case by case basis; this is usually a reason why review should be provided.
Another instrument did not indicate what decision was being made, another
did not indicate who was to make a decision, while another delegated a
decision making power to the wrong person. As usual, several instruments
provided for review of some decisions but not for related ones; the Explanatory
Statement for one of these instruments purported to explain this, but
not to the satisfaction of the Committee. One instrument provided that
an agency may make decisions on such criteria as the agency thinks necessary.
Another instrument provided only for internal review when external may
have been better. Another instrument did not provide the usual review
of a discretion to waive fees and compounded the deficiency because the
Explanatory Statement was misleading.
Many administrative decisions affect business and the Committee scrutinises
these carefully, particularly those affecting small business, to ensure
proper review rights. One instrument provided for an authorised person,
who apparently could be anyone, to deny sales tax and customs and excise
duty exemptions. Another provided for discretions in relation to test
shipments of exports, another for discretion to approve a manufacturing
plant. A number of instruments provided for discretions in relation to
civil aviation operations, some only of which were subject to review.
Another instrument gave the Registered Health Benefits Organisation power
to make decisions which could have adverse effects on the financial operations
of hospitals. Another instrument provided for a discretion to approve
people to give courses and set examinations in relation to matters which
could affect professional qualifications.
Do legislative instruments contain matters more appropriate for parliamentary
The Committee does not raise this principle as often as its other three
principles, but it is an important part of parliamentary propriety and
in this respect complements the first principle of the Committee. One
instrument six lines long provided for the operation of Comcover, which
appeared to be a substantial insurance operation. The Committee noted
that Comcare, the other Commonwealth insurance operation, was set up by
Act. The second reading speech for the enabling Act for Comcover discussed
legislative instruments and appeared to advise of a far more limited role
for them. The Committee has asked the Minister for full advice.
During the sittings the Committee made a special statement to the Senate
on 3 December 1998 on its first meeting of the present Parliament. On
3 November 1998 the legal adviser and Committee staff hosted a visit by
the Standing Committee on Uniform Legislation and Intergovernmental Agreements
of the Western Australian Parliament. The Committees home page was
placed on the Internet and the Delegated Legislation Monitor was also
converted to the Internet. The Committee is grateful for the support which
it has received from the Senate during the present sittings.
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