Statement on Scrutiny of National Uniform Legislative Schemes
The Standing Committee on Regulations and Ordinances would like to report
on developments in the past year on scrutiny of instruments made to implement
national uniform legislative schemes. These schemes present particular
challenges for scrutiny committees, because they usually deal with important
matters and follow complex making procedures involving Commonwealth, State
and Territory governments. These procedures are sometimes used as a reason
to attempt to lessen or exclude parliamentary oversight. The Committee,
however, does not accept this dilution of the role of Parliament and applies
its usual strict standards to these instruments. The legislative scrutiny
committees of the Commonwealth, States and Territories cooperate in their
scrutiny of national legislative schemes, which are discussed at conferences
and meetings of Chairs. During 1997 the Committee wrote twice to the Chairs
of our sister Committees on this matter and then presented a paper to
the conference of Australian legislative scrutiny committees. Following
that conference and further correspondence most of the committees wrote
advising that the Committee's suggestions could form the basis of a coordinated
approach by all Commonwealth, State and Territory committees. The Chairman
pursued this at a meeting of Chairs yesterday. Also, the Legislative Instruments
Bill 1996 included a provision which would dilute the effect of the Bill
in respect of parliamentary disallowance of instruments providing for
uniform national legislative schemes. The Committee reported to the Senate
on the Bill on 21 November 1996, 6 March 1997 and 23 June 1997.
In respect of the activities of the State and Territory committees, the
Committee received a very encouraging letter from the Chair of the Queensland
Committee on delegated legislation, Mr Tony Elliott MLA, describing its
experiences in scrutinising the important Electricity-National Scheme
(Queensland) Bill. Unfortunately 1997 also saw advice from the A.C.T.
Attorney-General, Mr Gary Humphries MLA, a former Deputy Chairman of the
A.C.T. Committee, that there seemed no prospect of advancing our views
through the Standing Committee of Attorneys-General. This was disappointing
but the Australian legislative scrutiny committees will continue efforts
to coordinate our activities and to give our usual close attention to
individual instruments implementing national scheme legislation which
are tabled in our separate legislatures. By dint of circumstance, however,
a particular package of regulations made under a national scheme gave
the committee the opportunity to demonstrate how co-ordinated national
scrutiny could be achieved.
The Road Transport Reform (Dangerous Goods) Regulations, Statutory
Rules 1997 No.241, were made under express provisions of the Road
Transport Reform (Dangerous Goods) Act 1995 to apply as laws of the
Australian Capital Territory and the Jervis Bay Territory, with the intention
that they will be incorporated into the law of the States and the Northern
Territory by adopting legislation. As is often the case with regulations
implementing a uniform legislative scheme, the Regulations are much longer
than the enabling Act.
The Explanatory Statement for the Regulations advised that they provide
for duties and obligations of participants in the transport of dangerous
goods by road and for related administration and enforcement. These participants
included prime contractors, consignors, drivers, loaders, packers, importers
and manufacturers. The Regulations were developed by the National Road
Transport Commission (NRTC) under two intergovernmental agreements, in
close consultation with the Commonwealth and State and Territory authorities
and major stakeholders. The Regulations were made publicly available for
comment and approved unanimously by the Ministerial Council for Road Transport.
The Committee then scrutinised the Regulations in the light of its high
standards of personal rights and parliamentary propriety and found a number
of deficiencies which warranted an approach to the Minister. These deficiencies
were as follows.
Firstly, the Committee noted that the Light Vehicles Agreement 1992 required
the NRTC to develop and maintain national standards as a matter of priority.
The present Regulations, however, were not made until five years later.
This delay appeared to be a breach of parliamentary propriety.
Secondly, one single provision provided for 68 strict liability offences.
The Explanatory Statement did not advise of the need for these offences.
The Committee always questions unexplained strict liability offences,
which may breach personal rights.
Thirdly, the Regulations provided for a system of administrative infringement
notices for offences. The Committee has no objection to such systems provided
that they include proper safeguards. In this case an official who serves
an infringement notice was given the power to extend the time for payment,
apparently forever, with no indication of when the discretion could be
exercised, which the Committee noted could be at the time the notice was
issued, within the time provided in the notice for payment, or at some
Fourthly, the Regulations did not include the essential safeguard that
infringement notices must notify persons affected of their rights. In
particular, an infringement notice was not required to include the vital
information that if a person pays the administrative penalty then any
liability of the person for the offence is discharged, the person may
not be prosecuted in court for the offence and the person is not taken
to have been convicted of the offence. This appeared to be a clear breach
of personal rights.
Fifthly, the Regulations provided for reconsideration and review of specified
decisions. This was appropriate but the Committee felt that it should
receive an assurance that all legislative instruments in the Regulations
are subject to disallowance and all administrative decisions are subject
to reconsideration and review. The Committee also wanted to be assured
that previously existing approvals, determinations and exemptions which
the Regulations continued in operation remained subject to any disallowance
The Committee accordingly wrote to the Minister asking for comments on
the apparent deficiencies and noting the helpful cooperation which it
had received in respect of related instruments. The Minister replied in
With respect to the possible delay in making the Regulations the Minister
advised that the previous law was poorly expressed and possibly unenforceable
in a number of areas. The Regulations involved therefore a significant
exercise to restructure the law and the necessary extensive consultation
With respect to strict liability, the Minister advised that the offences
related to matters where a contravention could give rise to serious injury
to people, property or the environment. As such the offences conformed
to Commonwealth criminal law policy. The Minister stated that each strict
liability offence was carefully considered and was of a regulatory nature
which would not result in a lessening of the offender's reputation. Strict
liability would allow for easier enforcement, including the use of infringement
notices. It was argued that persons who consign dangerous goods or are
driving a vehicle transporting dangerous goods are strictly liable on
the basis that the improper transport of such substances may have far
reaching and devastating effects. It was stated that if one part of a
process does not comply with the Regulations that dangerous situations
could occur later.
The Minister advised that the discretion to extend the time for payment
of a penalty could be exercised at any time up until a summons was served
on the person for the offence. He undertook that the Regulations would
be amended to provide that infringement notices must include the usual
The Minister assured the Committee that all legislative instruments made
under the Regulations were disallowable and that all administrative decisions
are subject to reconsideration and review, except for those decisions
which are not the ultimate decision affecting a person's rights and interests.
No discretions were exercisable under the instruments continued in effect.
The Committee thanked the Minister for his advice, which in general met
its concerns. The Committee, however, still had reservations about nine
of the 68 strict liability offences and asked the Minister for further
advice. Five of the nine offences involved drivers and the Committee was
particularly concerned that strict liability might operate harshly against
them. The Committee suggested that it may be more appropriate to provide
that these offences must be knowingly or wilfully committed, especially
given that parallel strict liability offences existed in respect of prime
contractors. Two of the other four strict liability offences involved
transferors, one an owner and one an occupier.
The Minister replied with a very detailed explanation of the offences,
which met its concerns about five of the nine offences, but which still
left the Committee with concerns about the remaining four. By this stage
however, the protective notice of disallowance in respect of the Regulations
had almost expired and the matter had become urgent. Accordingly the Chairman
had two separate meetings over two days with the Minister and his advisers,
following which the Committee obtained an undertaking that three of the
four strict liability offences would be amended in respect of strict liability
for drivers. The Minister persuaded the Committee that the fourth offence
was acceptable. The Committee therefore withdrew its notice of disallowance
on what by then was the last day on which it was able to do so, giving
notice pursuant to standing order 78 that it would be withdrawn at a later
hour of the same day. The Committee is pleased to report to the Senate
that the position with respect to these Regulations is now acceptable.
The Committee is particularly grateful for the personal attention which
the Minister for Transport and Regional Development, the Hon Mark Vaile
MP, gave to the Committee's concerns. The Minister's actions have ensured
that the Regulations will comply with high standards of parliamentary
propriety and personal rights.
As noted earlier, the Regulations form the central plank of the uniform
national legislative scheme providing for the transport of dangerous goods.
They are also an important part of the wider national scheme for regulation
of road transport. The Committee will therefore inform the Standing Committee
for the Scrutiny of Bills and the State and Territory legislative scrutiny
committees of its actions, which are another instance of the capacity
of legislative scrutiny committees to bring about desirable change.
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