Uniform legislation refers to those bills that seek to harmonise
legislation across a number of jurisdictions. This structure requires
cooperation between different bodies where it is considered appropriate to take
a nationally consistent legislative approach to an issue or matter.
In Australia, such legislation arises from the federal structure of government,
which provides a constitutional division of power between the State and
Commonwealth governments. For this reason it is also often described in
Australia as 'national scheme legislation'.
The Western Australian Legislative Council Standing Committee on Uniform
Legislation and Statutes Review (the WA Uniform Legislation Committee) has
identified the following purposes of uniform legislation:
achieving consistency in a common functional area (for example,
avoiding duplication of services between the Commonwealth and the
pooling resources (for example, the administration of the First
Home Owner’s Grant Scheme);
applying uniform laws to mobile resources (for example, rivers
which cross State borders);
achieving nationally consistent legislation in those areas where
the Commonwealth Government has limited or no constitutional power;
or some other harmonising purpose.
The WA Uniform Legislation Committee has also noted that since the 1990s
there has been an increased incidence of uniform legislation, primarily arising
from globalisation of the economy.
The scrutiny committee's consideration of uniform laws in this inquiry
has proceeded without reference to the policy details of any proposed or actual
uniform laws. However, even without exploring policy specifics it is apparent
that the approach has advantages and disadvantages. The use of uniform laws can
be seen to deliver benefits such as the removal of duplication of
administration and compliance costs, increased efficiency, and economies of
scale. However, uniform legislation can also have disadvantages, particularly
in respect of parliamentary (and State) sovereignty.
Process of formulating uniform legislation
Uniform legislation emerges primarily from the work of ministerial
councils, comprising State and Commonwealth ministers responsible for
particular portfolios. In some cases, ministerial councils also involve
ministers from the New Zealand Government. There are currently over 40
State-Commonwealth ministerial councils and fora. The most well known are the
Council of Australian Governments (COAG) and the Standing Committee of the
Once a ministerial council has approved a proposal for a scheme, the
matter is generally referred to COAG for approval. In the event an
intergovernmental agreement or uniform scheme requires legislation to give it
effect, the various Ministers are responsible for sponsoring bills through
Concerns about uniform legislation
Lack of information
The WA Uniform Legislation Committee has noted the difficulty in
accessing information concerning the decisions of ministerial councils. Where
information that a decision has been made is available, there may not be any
publicly available written record of the content of the agreement beyond a
statement of intention to jointly address an agreed problem. While there has
been a trend in recent years for more formality, some intergovernmental
agreements to implement uniform legislation are not supported by a formal
document executed by the participating jurisdictions. Ministerial councils
usually meet only once or twice a year and so they may settle issues by
correspondence. This correspondence may constitute the only documentation
supporting a proposal for uniform legislation. Even where there is a written
intergovernmental agreement it is often primarily concerned with principle and
provides no detail on implementation.
Curtailment of parliamentary
Further difficulty arises where intergovernmental agreements require
that legislation in each jurisdiction is identical, or where identical
provisions may be necessary to give practical effect to a national scheme. In
these cases the ability of the Senate and its committees to effectively
scrutinise and amend bills is curtailed.
An illustration of the difficulties can be found in the passage of the
National Vocational Education and Training Regulator Bill 2010 (and related
bills) through the Commonwealth Parliament in March 2011. The bills were the
result of a referral of powers from New South Wales under section 51(xxxvii) of
the Constitution. The government argued that the bills could not be amended
because the referral of powers was based on the specific text of the bill as it
was introduced, and any alteration of the text would result in the failure of
the agreement to establish the Vocational Education and Training Regulator
This committee made several comments on the bills in its Alert Digest
No. 1 of 2011.
In addition, the Education, Employment and Workplace Relations Legislation
Committee (EEWR Committee) recommended changes to the explanatory memoranda and
that certain provisions of the legislation be amended once they had been
enacted (and the text-based referral of powers had been effected).
The EEWR Committee also specifically supported the provision of exposure drafts
of such legislation in the future to enable examination of proposals by
parliamentary committees before they were locked into the terms of
During debate on the bills several senators expressed concern about the
curtailment of parliamentary scrutiny when bills such as these are presented to
the Parliament as a fait accompli.
The Chair of the Senate Economics Legislation Committee, Senator Mark
also made a submission to this inquiry about uniform legislation.
Senator Bishop described his committee's similar recent experience with uniform
legislation when it was inquiring into the Business Names Registration Bill
2011 and related bills. In his submission, Senator Bishop referred to concern
expressed by other Senate committees relating to national scheme legislation,
including the National Vocational Education and Training Regulator Bill 2010.
Senator Bishop expressed his committee's support for the EEWR committee
recommendation and stated:
...the committee suggests that for future national scheme
legislation bills requiring the coordination of their passage through the
various federal, state and territory legislatures, the exposure draft of the
bill(s) should not be introduced into state or territory legislatures before
federal parliamentary committees have had the opportunity to examine its
provisions and make recommendations.
A submission from the Chair of the Community Affairs Legislation
Committee, Senator Claire Moore, also provides insight into that committee's
experience with the National Health Reform Amendment (National Health
Performance Authority) Bill 2011.
The legislation was the product of a COAG decision which generally attracted
broad support, although a few concerns were apparent. Senator Moore states:
Late in the committee’s inquiry, the government prepared
proposed amendments to the Bill and a draft supplementary Explanatory
Memorandum, and provided them to the committee, following discussions between
the government and a number of stakeholders, but particularly some State
The committee believes that such cases demonstrate the
importance of ensuring that exposure drafts are subject to consultation,
including through the scrutiny committees and legislative and general purpose
standing committees. The committee suggests that significant improvements in
policy implementation and technical design of framework legislation and
national schemes could be achieved through such a process.
This committee shares the concerns outlined above and notes that they
are not new: a Working Party of the Chairs of Scrutiny of Legislation
Committees throughout Australia identified similar issues in a discussion paper
issued in July 1995. The discussion paper, titled Scrutiny of National
Scheme Legislation and the Desirability of Uniform Scrutiny Principles,
stated the issues from a scrutiny perspective clearly:
...in relation to uniform legislation no changes are
permitted. Committees are often told that the legislation cannot be varied
because it has been carefully worked out by the relevant Ministerial Council
and has national significance....This is also the case with subordinate
As a result, Scrutiny Committees are restricted from carrying
out their roles in relation to uniform legislation. Practically speaking, it is
fair to say that there is effectively no parliamentary scrutiny of national
The discussion paper goes on to state:
In a nutshell, the problems with national scheme legislation
may be summarised as follows: -
Insufficient scrutiny – there is
no mechanism for scrutiny either by Parliaments or Parliamentary Committees;
Lack of Governmental
accountability at both State and Federal levels.
Although this was written many years ago, the views expressed are still
apposite today. In fact, it is arguable that the issues have a sharper
resonance due to the noted increase in the use of uniform legislation.
In addition to agreeing with the concerns of the three legislation
committees outlined above, the Scrutiny of Bills committee suggests that to
encourage the practice of providing exposure drafts the Senate could consider
deferring the passage of any uniform or national scheme legislation unless
adequate opportunity to scrutinise it and negotiate amendments, if they are considered
necessary, is provided.
The committee recommends that where there is a proposal for uniform
legislation, amendments to uniform legislation or delegated legislation and the
nature of the proposal means that the ability of the Senate and its committees
to effectively scrutinise and amend the relevant proposal is limited, exposure
drafts should be provided as soon as practicable to this committee, the
relevant legislative and general purpose standing committee, and the Senate
Regulations and Ordinances Committee if the proposal includes delegated
legislation. All relevant information about the proposal, including any formal
agreements or correspondence should also be provided to the committees to
assist in their consideration of the exposure drafts.
That standing order 24 be examined to confirm whether the Scrutiny of
Bills Committee is empowered to consider, advise and report on exposure drafts
and associated information and, if it is not, that standing order 24 be amended
to allow the committee to do so.
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