Statement on the work of the Committee during the Autumn and Winter
sittings
During the present sittings the Committee scrutinised the usual large
number of disallowable legislative instruments tabled in the Senate, made
under the authority of scores of enabling Acts administered through virtually
every Department of State. Almost every legislative scheme relies on delegated
legislation to provide the administrative details of programs set out
in broad policy in enabling Acts which authorise such delegated legislation.
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 invariably 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.
During the sittings the Committee scrutinised 964 instruments. Of these,
167 were statutory rules, which are generally better drafted and presented
than other series of delegated legislation. The other 797 instruments
were the usual heterogeneous collection of different series.
Each of the 964 instruments was scrutinised by the Committee under its
four principles, or terms of reference, which are included in the Standing
Orders. There were 104 prima facie defects or matters worthy of comment
in those 964 instruments. The defects are described below under each of
the four principles.
Principle (a): Is delegated legislation in accordance with the statute?
The Committee interprets this principle broadly. Together with the Committee’s
fourth principle, it covers not only technical validity, but also every
other aspect of parliamentary propriety. The Committee noted that there
may have been problems with instruments for the following reasons.
Validity
It is a fundamental requirement of legislative instruments that they
should be validly made. Three instruments were expressed to commence before
gazettal and were therefore invalid under the relevant statutory safeguards
if they adversely affected any person other than the Commonwealth. Two
of these instruments appeared to do this and in the third it was not apparent
whether it did or not. Three other instruments appeared to exceed the
statutory power under which they were made. One of them gave power to
the CEO of an agency to make declarations in relation to two matters although
the enabling Act expressly required these matters to be prescribed by
regulation. Another instrument purported to exercise enabling powers to
fix charges by providing merely that charges will cover costs. Another
provided that the CEO may exempt in advance conduct which has not yet
been declared to be subject to sanctions and in effect to amend the regulations.
Another general statutory safeguard provides that legislative instruments
may only incorporate material apart from Acts and other instruments which
is in existence at the time when the instrument comes into effect. This
may have caused problems in relation to one instrument which provided
for criteria established by the Prime Minister for performance bonuses
for departmental secretaries. Another instrument provided for performance
remuneration in accordance with criteria to be established by guidelines.
Parliamentary propriety
The Committee ensures that legislative instruments do not breach parliamentary
propriety. A legislative instrument providing for radiation protection
and nuclear safeguards provided for a number of important reports with
no express requirement that these must be tabled in Parliament. The same
instrument provided for declarations which were subject only to gazettal
and not to tabling. Another instrument provided for material which should
have been subject not only to tabling but also to disallowance.
The Explanatory Statement for one instrument advised that prior to the
instrument certain international airline capacity was allocated de facto
by the departmental secretary, which implied that it had been done without
legislative authority. Another instrument reduced from six months to four
the period within which certain superannuation funds must lodge annual
returns. Three weeks later another instrument generally restored the six
months period as a transitional measure. Later another instrument extended
the transitional period for 12 months. The Committee questioned the need
for this constant legislative change.
One instrument provided for the members of a statutory council and committee
to be appointed for any period of no longer than three years. The Committee
asked whether these relatively short spans of membership may be an impediment
to independent advice being provided to the Minister. Another instrument
provided not only for appointment of members to the Complementary Medicine
Evaluation Council for any period of up to three years, no matter how
short, but also for the Minister to nominate expert advisers to the CMEC.
This latter power appeared to be undesirable because another provision
permitted the CMEC itself to seek advice from any person. These measures
may have affected the independence of the CMEC.
One set of regulations made by the Governor-General was printed with
an error of 10 months in the making date. A proclamation by the Governor-General
was notified in two separate gazettes. One instrument provided for people
to be authorised to exercise significant functions but gave no indication
of the qualifications or attributes which such people should possess.
One instrument provided for the Secretary to delegate important powers
to any officer of the department or any staff member of an agency, no
matter how junior.
Seven principal regulations were amended on the same day by two, and
in one case three, sets of amending regulations. The Committee asked about
this apparently unnecessary legislative duplication. In a similar case
a consolidating instrument was made less than three weeks after an amendment.
Delay
The Committee questions any apparent unjustified delay in making a legislative
instrument. The enabling Act required Plans of Management for National
Parks to be gazetted as soon as practicable after they have come into
operation, so that any interested person may inspect or purchase a copy
of the Plan. The Plan for one Marine Park came into operation on 25 June
1996 but it was not gazetted until 31 March 1999, one year before
it is to cease. The gazettal of a heritage protection declaration was
delayed for seven weeks. One instrument was not made until eight months
after an Act had come into effect although it appeared that it should
have been made as soon as possible after that date.
The Explanatory Statement for one instrument advised that it replaced
outdated instruments but it gave no indication of how long the earlier
provisions had been outdated; research by the Committee indicated that
this was 10 years. Another instrument corrected an anomaly which had existed
for three years. Many instruments with beneficial provisions operate retrospectively,
which is acceptable as long as there are justifiable reasons for the delay.
The Committee questioned two instruments where there appeared to be no
pressing reasons why they could not have been made at the earlier date.
One instrument prohibited the supply or possession of mobile telephone
jammers. The Explanatory Statement advised that this was because such
devices are likely to disrupt substantially and have serious adverse consequences
for public mobile telephone services. The Committee asked the Minister
about how long the authorities had known of these devices and whether
there was any delay in making the instrument.
Drafting
The Committee believes that the quality of drafting of legislative instruments
should not be less than that for Acts. The provisions of one instrument
were at variance with their intention as expressed in the Explanatory
Statement. Another instrument provided that something "should"
be controlled, which is different to providing, as it was apparently intended,
that it "is" controlled. Another instrument included mere drafting
surplusage. The Committee questioned imprecise drafting in another instrument.
Several instruments included cross-reference errors. A number of instruments
did not provide unique numbering or citation. Several instruments were
numbered out of order. The Committee did not write to the Minister about
a reference in an instrument to 31 April 1999, because it only raises
serious issues.
Explanatory material
Due to the efforts of the Committee it is now accepted that every legislative
instrument should be accompanied by proper explanatory material. All instruments
were in fact accompanied by an Explanatory Statement, but unfortunately
some of these explained very little or were incomplete or inadequate in
some way. One Explanatory Statement made statements which had no statutory
basis. Another gave wrong references to provisions in the instrument.
The Explanatory Statement for another was only a modified version of the
Explanatory Memorandum for the Bill. The Explanatory Statement for an
instrument providing for extradition with Estonia gave a detailed summary
of diplomatic relation with that country but neglected to mention that
in the early 1970s Australia recognised de jure the annexation of Estonia
by the Soviet Union.
Numbers of instruments include Notes, which are included in the body
of the instrument itself but do not form part of it. The Committee questioned
several inadequacies and inaccuracies in these Notes. The Regulation Impact
Statement for one instrument advised that it was made because the previous
arrangements were either invalid or at least open to challenge. The Explanatory
Statement, however, did not mention this.
Principle (b): Does delegated legislation trespass unduly on personal
rights and liberties?
The Committee interprets this principle broadly, to include every aspect
of personal rights. During the sittings the Committee noted the following
possible defects in the legislative instruments which it scrutinised.
Protection of the rights of individuals
The Committee questions any instrument which gives powers to Ministers
or officials which may be too broad or which does not include adequate
safeguards for their exercise. One instrument provided for an official
to decide whether to remove a person’s name from a professional register
after application from the person, although it was more appropriate for
the person to decide this as of right. A similar instrument provided that
an official "may" do something beneficial to a person, when
"must" would have been the better formulation. Another instrument
provided for an official to exercise power in relation to individuals
with no criteria to limit its exercise and without appropriate safeguards.
One instrument gave the Minister power to cancel the appointment of a
member of an advisory panel without giving notice of intention or reasons
or giving the person affected the opportunity to respond to any adverse
material.
The Committee also writes to the Minister about any aspect of legislative
instruments which may operate unfairly upon individuals. The Explanatory
Statement for one instrument advised that medical insurance arrangements
were being changed for local employees at an Australian embassy because
of a marked deterioration in service by the previous insurer over the
last 12 months. In this case, the Committee wished to be assured that
no staff were out of pocket and that the agency had done everything possible
to remedy or ameliorate this deterioration. Another instrument provided
for trained volunteer staff operating in remote areas to be covered by
the compensation provisions of the enabling Act; the Committee asked whether
people carrying out volunteer services in the post were disadvantaged
by not coming within the Act. One instrument included a discrepancy in
allowance provisions for certain Commonwealth employees. Another instrument
provided for a beneficial right in one clause but appeared to take away
this right in another. Another exempted discriminatory conduct from the
ambit of the Act.
One instrument defined security officer as a member of a uniformed security
force; such officers could exercise significant powers. There were no
further criteria and the Committee asked why a member of these forces
acquired special powers merely by donning a uniform. The same instrument
also provided that a person who ceased to be an authorised officer must
return his or her identity card, but there was no safeguard that this
should be done as soon as possible.
Unreasonable burdens on business
The Committee ensures that legislative instruments which affect business
include appropriate safeguards and operate fairly. One instrument did
not provide for notification of possible sanctions for failure to comply
with an official demand, while another did not provide for notification
of a right of review. Another did not provide for notification that a
person in a certain position had rights in relation to self-incrimination
and to be assisted by a legal representative. One instrument did not make
it clear that a person must comply with official demands only if they
were reasonable and necessary. One instrument did not require reasons
to be given for official action although this appeared appropriate to
protect personal rights. Another instrument did not include the usual
reasonability safeguard to limit and control actions of officials. One
instrument gave a discretion to an agency to invite public comments and
engage in other consultation, with no criteria to guide the exercise of
this power. One instrument provided for an agency to give notice before
it cancels a licence, but not to give notice if it varies a licence. Two
instruments expressly provided for agencies to take into account subjective
rather than objective criteria when making decisions.
Other instruments included unexplained provisions which could have affected
business adversely. One provided for matters to which an agency must have
regard before coming to a decision, with other matters to which the agency
merely may have regard. Another provided for strict compliance with forms,
with no explanation. Another exempted marine pilots from liability for
the consequences of their negligence, thus placing all responsibility
on the master and owner of the ship.
Fees and charges
Many legislative instruments provide for fees and charges and the Committee
questions any aspect of these which appears unusual or unexpected. One
instrument increased a levy by 82% in one case and by 58% in another,
without explanation. The Explanatory Statement for another advised that
it increased fees by 10% although the instrument itself increased a fee
by 30%. One instrument provided what the Explanatory Statement described
as complex arrangements for refunds of overpaid levy, but gave no indication
of how many people were affected by the error in calculation or of the
amounts of money involved, either as an average for each levy payer or
a total. The Explanatory Statement also did not advise whether the refund
included interest or why it took more than a year for the error to be
rectified. Another instrument provided for a change in measuring the length
of a boat, which was the basis on which fees are set, with no explanation
of the effect of the change. The same instrument set new fees but did
not indicate either the amount or the percentage of the increase.
Offence provisions
The Committee ensures that offence provisions are fair and include the
usual safeguards. One instrument provided for an administrative penalty
notice to be imposed on a person up to 12 months after the alleged infringement.
Two instruments included power for an official to determine subjectively
whether matters relating to offences were relevant, without even a requirement
that the official must act reasonably. One of these instruments did not
provide for review of a decision to withdraw an infringement notice, even
though withdrawal may expose the alleged offender to court prosecution
and despite the fact that a decision to refuse to withdraw a notice is
subject to review.
Privacy
The Committee ensures that legislative instruments do not breach the
fundamental personal right to privacy. One instrument provided for an
agency to distribute reports addressing sensitive matters to any person
who asks for a copy, regardless of the privacy of any person mentioned
in the report. One instrument which provided for the release in certain
circumstances of personal information did not indicate that the Privacy
Commissioner was consulted before it was made.
Principle (c): Does delegated legislation make rights unduly dependent
upon administrative decisions which are not subject to independent review
of their merits?
Legislative instruments often provide for public officials to exercise
discretions. The Committee considers that such discretions should be as
narrow as possible, include objective criteria to limit and control their
exercise and be subject to review of the merits of decisions by an independent,
external tribunal such as the Administrative Appeals Tribunal.
The Committee noted a number of instances of unreviewable discretions
which could have considerable adverse effects on individual business operations.
One provided for a discretion to permit the export of radioactive waste
to countries in the Pacific. Another made for the purpose of medical charges
and Medicare benefits gave a discretion to decide when certain equipment
was first installed and used in Australia. Another discretion related
to licences for radiation protection and nuclear safeguards. Another gave
an agency the unfettered power to impose conditions on the surrender of
a transmitter licence. One instrument provided for review of a decision
to withdraw a civil aviation grounding notice when review of a decision
not to withdraw a notice may have been appropriate. Another instrument
provided for an agency to determine its own costs and then charge for
them. One instrument provided for numbers of discretions to be subject
to review, but did not provide this for one other important discretion.
In a number of instruments it was unclear whether review provisions in
the enabling Act covered decisions made under legislative instruments.
In such cases the Committee asked the Minister to confirm that this was
the case or to amend the instrument to provide expressly for review.
Two apparently unreviewable discretions related to recognition of qualifications
essential to earn a livelihood in a particular area.
Principle (d): Does delegated legislation contain matter more appropriate
for parliamentary enactment?
The Committee does not raise this principle as often as its other three
principles. Nevertheless, it is a principle which goes to the heart of
parliamentary propriety and complements the first principle, that an instrument
should be in accordance with the statute.
Other developments
During the sittings the Committee presented the following reports:
- 106th Report: Annual Report 1997-98 (10 March 1999)
- 107th Report: Report on scrutiny by the Committee of
Orders made under the Financial Management and Accountability Act
1997 (27 May 1999)
The Committee made the following special statements to the Senate on
28 June 1999:
- Scrutiny of Great Barrier Reef Marine Park Zoning Plans;
- Regulation Impact Statements;
- Ministerial undertakings.
The Committee agreed that it would present a paper entitled "Explanatory
material for legislative instruments – the Commonwealth experience"
to the Seventh Australasian and Pacific Conference on Delegated Legislation
to be held in Sydney 21-23 July 1999.
The Committee secretary reviewed "Delegated Legislation in Australia"
by Professor Dennis Pearce and Stephen Argument, Butterworths, Sydney,
1999, for the Australian Institute of Administrative Law Forum.
Copies of the Annual Report 1997-98 were mailed to 150 delegates to the
Australian Institute of Administrative Law Conference 1999, Canberra,
29-30 April 1999.
The Committee is grateful for the support which it has received from
Senators during the present sittings.