Statement on Provisions in Legislative Instruments which may have been more appropriate for inclusion in an Act

The Standing Committee on Regulations and Ordinances scrutinises all disallowable legislative instruments to ensure compliance with personal rights and parliamentary propriety. An important aspect of parliamentary propriety, and one recognised by standing order 23, which establishes the terms of reference of the Committee, is that legislative instruments should not contain matter more appropriate for parliamentary enactment. The Committee raises this issue less often than its other principles, but it is a fundamental part of Committee scrutiny.

During the present Autumn sittings the Committee has considered two cases where legislative instruments provided for material which may have been more suitable for inclusion in a Bill, which is subject to all the rigours of parliamentary passage.

Four sets of amendments of the Therapeutic Good Regulations, Statutory Rules 1997 Nos 398-401, were all made on the same day. The Committee scrutinised these in the usual way and found numbers of defects. These included fees of up to $5,600, the basis of which was not explained; absence of a time limit within which a public official must make a decision; unclear drafting; strict liability offences; unfair provisions affecting business operators; and duplication in making the four sets of regulations on the same day. The Committee had considerable and detailed correspondence with the Parliamentary Secretary responsible for the regulations and obtained explanations and a number of undertakings in relation to these problems, including an undertaking to amend before the end of this financial year.

This statement, however, will describe our correspondence about another possible deficiency raised by the Committee, which was that the amendments, or at least some of them, may have been more appropriate to be addressed through an amendment of the enabling Act, where the changes would be subject to full parliamentary debate. One reason for the Committee’s concern was the number and intensity of representations which Senators were receiving about one set of regulations in particular, the sole purpose of which was to prohibit the advertising of natural remedies as "drug free".

The Committee wrote to the Parliamentary Secretary, who replied that this set of amendments had been intentionally separated out from the pre-existing provisions but that it would not be appropriate to amend the enabling Act because these are amendments of existing regulations.

The Committee replied to the Parliamentary Secretary suggesting that, with great respect, the Committee did not share her view. For the purpose of the Committee’s terms of reference it is irrelevant whether the regulations are principal or amending regulations. The Committee’s mandate to ensure that legislative instruments do not contain matter more appropriate for an Act is an important safeguard for parliamentary propriety and one which the Committee is vigilant to enforce. The Committee pointed out that its very first Report in 1932 dealt with this aspect of its terms of reference and the Committee has received undertakings since that date from Ministers to include matters, initially included in legislative instruments, in Acts. These included amending instruments. The Committee further advised that the subject matter in the present regulations was contentious and the subject of considerable public disquiet. The Committee noted the advice of the Parliamentary Secretary that she had established a committee of review to examine the issues in this regulation and would table the results of the review in Parliament. The Committee would, however, appreciate advice that following this review the material in the regulation would be included in an Act. The Committee concluded its letter by advising that its actions in relation to the Therapeutic Goods Regulations, like its actions in respect of all legislative instruments, are directed to protect personal rights and parliamentary propriety. The Committee did not deal with policy and did not have a view on the policy aspects of the regulations. It aim was to protect the rights of Parliament.

The Senate disallowed Statutory Rules 1997 No.401 on 31 March 1998 on policy grounds.

The second case presented a somewhat different problem in relation to material included in a legislative instrument which may have been more appropriate for inclusion in an Act. The Public Service Regulations (Amendment-Interim Reforms), Statutory Rules 1998 No.23, made on 18 February 1998, provided for important matters affecting the Australian Public Service at a time when far-reaching reforms for the APS had already been put into legislative form, in the Public Service Bill 1997. That Bill was first introduced into the House of Representatives on 26 June 1997 and , after being passed in the Senate with amendments, was introduced into the House of Representatives again on 5 March 1998. The Committee wrote to the Minister suggesting that it may be appropriate for the Regulations to be delayed until the fate of the Bill has been determined and for the Bill alone to deal with some of the matters also included in the Regulations.

As an aside, to illustrate the breadth of matters which the Committee addresses, the Committee also wrote to the Minister about two other aspects of the Regulations. One regulation provided that the Public Service Commissioner must report to the Minister on the state of the service and that the Minister must present that report to the Parliament. There was, however, no provision specifying the time within which the Minister must present the report after it has been received. The Committee suggested that the Minister should be required to do this within seven sitting days of receipt. The Minister advised the Committee that the Regulations would be amended to include this requirement. Also, the Committee asked about apparent delay in bringing the regulations up to date, with some provisions obsolete for more than a decade. The Minister advised that the delay was unfortunate and should not occur again.

In relation to including the material in the Bill the Minister advised that he agreed with the Committee that the preferable course would have been to include in the Act the substantive parts of the Regulations in relation to APS values, the Code of Conduct, public interest whistleblowing, the state of the service report and mobility arrangements. However, the House of Representatives had now rejected the Senate amendments and resolved that the Bill be laid aside. The Minister advised that, in the absence of the Bill, it was essential that these important issues are dealt with, to improve the efficiency, effectiveness and ethics of the APS.

The Committee accepted this advice, but in the meantime, in order to protect its options, had given a notice of disallowance of the regulations. The Public Service and Merit Protection Commission, which administers the Regulations, then issued a circular to all Departments and agencies in the APS, advising that the notice had been given and of its effect. After the Committee withdrew the notice the PSMPC sent out a further circular. The Committee congratulates the Public Service Commissioner on this appropriate action, which represents an understanding of the role of the Committee and a commitment to parliamentary propriety.

The Committee is grateful for the cooperation which it has received in its scrutiny in these two cases from the Parliamentary Secretary to the Minister for Health and Family Services, the Hon Trish Worth MP, and from the Minister Assisting the Prime Minister for the Public Service, the Hon David Kemp MP.