Statement on the first meeting of the Committee of the 39th Parliament

On behalf of the Standing Committee on Regulations and Ordinances I would like to report on the first meeting of the Committee for the present Parliament, held on 26 November 1998. The Committee scrutinises all disallowable legislative instruments for compliance with its principles, set out in the Standing Orders, which protect parliamentary propriety and personal rights. The Committee operates in a non-partisan fashion and does not deal with policy issues.

Between its last meeting of the previous Parliament and the first meeting of this one, the Committee received 48 letters from Ministers in reply to concerns which it raised. This indicates the active nature of the Committee and the variety of issues which it raises. The Ministers undertook to amend nine separate instruments to meet our concerns, with some multiple amendments. Ministers also undertook to take other action in relation to seven other instruments, such as to provide numbering or to improve Explanatory Statements. The Committee was not satisfied with a further six letters and agreed to write back to the Ministers for further advice.

Set out below are summaries of some of the replies from Ministers, which are intended to illustrate the more significant matters of concern to the Committee. The Committee trusts that it will also demonstrate to the Senate that the Committee is ensuring that the quality of legislative instruments in relation to parliamentary propriety and personal rights is not less than that of Acts.

Parliamentary propriety

One significant action in this regard was the discovery by the Committee that three proclamations signed personally by the Governor-General commencing three separate Acts and numbers of sets of regulations made under those Acts, were totally void for prejudicial retrospectivity. This was a fact apparently not known to the Minister or the Department prior to inquiries by the Committee. After these inquiries, however, the Parliamentary Secretary obtained legal advice from the Attorney-General’s Department that the Governor-General’s personal instruments were a nullity. The Committee also obtained advice that this was the view of the Executive Council secretariat. The Committee sought and obtained advice from the Parliamentary Secretary that all of the provisions of statutory rules made on the basis that the proclamations were valid would be made again, that no person was adversely affected and that all administrative action taken in reliance on the putative proclamations was legally authorised. At its meeting the Committee decided that the reply from the Parliamentary Secretary was not entirely satisfactory and decided to seek further assurances. It is a serious matter that the Governor-General was advised to sign proclamations which were of no effect and the Committee wished to ensure that everything was now in order.

The Committee is also concerned that legislative instruments respect the rights of Parliament. On 30 June 1998 the Committee made a special statement to the Senate on its continuing scrutiny of three Great Barrier Reef Marine Park Zoning Plans, which gave the GBRMP Authority the power to close and open large areas of the reef to fishing and other activities for periods of up to five years. The Committee asked about invalid subdelegation of legislative power. In reply the Minister attached advice from one unit of the Attorney-General’s Department that if legislative then the powers certainly and properly should be provided in the Plans themselves and thus be subject to parliamentary scrutiny and possible disallowance, but in fact they were merely administrative. The Committee was surprised at this conclusion and asked the Minister for advice from another unit of the Attorney-General’s Department, which was that they were clearly legislative. Further advice from that source, however, was that although legislative they were likely to survive a challenge. The Committee does not accept this view, but whether or not the delegations are void it is a clear breach of parliamentary propriety that these important instruments, which are now accepted by everyone as legislative, are not subject to parliamentary scrutiny. The Committee considered further advice from the Attorney-General at its meeting and resolved to continue to pursue this matter and to report in due course.

Similar although less serious questions of parliamentary propriety arose in relation to an instrument which provided for significant administrative notices relating to the ethnic press to be published in the Gazette. The Committee asked the Minister if notices could be tabled as well, because they appeared to address maters which would be of interest to Senators. The Minister in this case advised that copies of notices would be sent to the Committee. In another case of notices extending exemptions for tertiary institutions from certain requirements the Minister advised that these would be tabled.

Many legislative instruments provide for the composition, powers and operations of boards and authorities. The Committee is careful to ensure that these include all the usual safeguards. In one case the Minister undertook to make multiple amendments relating to the Compliance Committee established under the Sydney Airport Demand Management Act 1997, which the Committee believes will enhance the open operation of the Committee. The Minister undertook to amend some provisions and review others relating to the Professional Standards Board for Patent and Trade Mark Attorneys, which will align them with contemporary standards of propriety.

Parliamentary propriety also dictates that legislative instruments must be valid under the provisions of its enabling Act or some other Act. One instrument purported to subdelegate a decision-making power in the Act, with no apparent power to do so. The Minister advised that the subdelegation would be removed. Another instrument provided for fees which appeared to go beyond cost recovery and to be taxes, with consequent invalidity. The Act under which the instrument was stated to be made did not provide any such power and the Explanatory Statement did not refer to this question. The Minister advised that the taxing power was in another Act and that it was unfortunate that the head of power was not advised.

It is also a breach of parliamentary propriety if a legislative instrument provides for matters more appropriate for inclusion in an Act. In this context the Committee considered a reply from the Minister about an insurance operation which was established by a legislative instrument the substantive part of which was six lines long. The Explanatory Statement provided little information about the operation, apart from the information that it appeared to cover all Commonwealth insurable risks, apart from those covered by Comcare, which the Committee noted was established by detailed provision in an Act. The letter from the Minister raised further issues of parliamentary propriety and the Committee decided to write again to the Minister, asking for further advice on a number of aspects of the instrument. The Committee advised the Minister that the enabling Act did not appear to contemplate such a substantial operation and the second reading speech made no mention of it. Indeed, the second reading speech advised that this type of legislative instrument would be used for the day-to-day application of the Act, not to establish major financial bodies. In particular, the Committee asked for full advice on the transparency and accountability to Parliament to which the instrument expressly refers. The Chairman has been in contact with the Minister with a view to expediting a reply so that the Committee may deal with this matter as soon as possible. Once again this is a matter upon which the Committee will report again to the Senate.

Personal rights

The other main function of the Committee is to protect personal rights. Here also the meeting considered a number of replies which illustrate the nature and scope of its concerns. In this context one instrument made under the Telecommunications Act 1997 provided that a service provider must not allow a person to use a number for an anonymous pre-paid digital mobile service if, among other things, a senior officer of a criminal law-enforcement agency has asked that the service not be provided because the officer suspects on reasonable grounds that the person is likely to use the service to engage in serious criminal conduct. The Regulation Impact Statement advised that the reason for the provision was that the product was available in considerable quantities in criminal circles within one month of its introduction, law enforcement and national security agencies found that previously productive avenues of investigation were closed and there was a sharp decrease in the number of lawful telecommunications interceptions because of the untraceable nature of the telecommunications. The instrument included among other safeguards the requirement that the service provider must tell all applicants and users of its pre-paid carriage services of the effect of the provision, but given the sensitivity of the matter the Committee asked the Minister for further advice. In particular the Committee asked for confirmation that the different safeguards were cumulative and for information on how the provision would actually operate. In this instance the Minister’s reply and the RIS satisfied the Committee that the instrument was reasonable, advising that without it millions of dollars spent or committed by government agencies would be wasted and ASIO and other national security organisations would be less able to perform their functions, with especial reference to the Sydney 2000 Olympics.

Other replies from Ministers to matters raised by the Committee in relation to personal rights illustrate the breadth and diversity of its activities. For instance, the Committee was concerned that refunds of hearing fees in the Family Court required 20 days notice although earlier provisions for the High Court and the Federal Court prescribed only 10 days notice. In this context the Committee noted that clients of the Family Court would usually need the refund more than litigants in the other courts. The Minister advised, however, that 20 days was needed because of the way that resources are allocated in the Family Court. Another instrument required a public official to consider an application which could have important commercial consequences, but did not provide a time limit for the official to come to a decision or at least be deemed to have done so. Also, the official could have regard to matters which were wholly subjective. In this case the Minister agreed to amend the instrument to correct these deficiencies. In a case which involved delays in paying benefits the Minister advised that departmental procedures were being reviewed. In another case related to benefits the Minister assured the Committee that no person was disadvantaged because of defective drafting of an instrument. Another instrument increased from two to 13 the number of types of investigations for which a statutory authority could recover its costs from the body being investigated. Here the Minister assured the Committee that no new investigations had been commenced before the instrument was gazetted.

Many legislative instruments provide for aspects of civil aviation operations and safety and the Committee looks carefully at these. Two almost identical detailed instruments provided authorisation for activities by the Australian Parachute Federation and by the Australian Sky Diving Association, but although parachuting incidents had to be reported there was no such requirement for sky divers. In reply to the Committee’s inquiry about safety supervision the Minister advised that this reflected differences in the scale of operations of the two bodies and the difference in operational surveillance.

Another instrument provided for what the Committee suggested were intrusive provisions which may not have been justified. Applicants for a licence were required to divulge whether they or any person in management or control of the relevant business had been charged or convicted of any offence at all. The Committee suggested to the Minister that this should be limited to more serious offences. Another provision required a licence holder to provide the date of birth of the licensee’s nominee, even though the licence holder did not have to provide this information. The Minister has now advised that the offence provisions would be amended in accordance with the Committee’s suggestion. The omission of the date of birth for the applicant was a mistake which would be corrected, because the information is necessary for integrity checks. Another instrument provided for strict liability for all persons on a fishing boat, even though the offence may have occurred before a deck hand had come on board. Here the Minister advised that an amendment would limit liability to the master of a boat.

It is also a breach of personal rights and of the Committee’s principles if decisions made by Ministers or officials are not guided and controlled by suitable criteria and are not subject to appropriate external review of their merits, usually by the Administrative Appeals Tribunal or a similar specialist review body. In this context the Committee noted that one instrument had provided for exemption from prohibition on navigation through a closed fishery, with no criteria for the decision maker and no right of review. In reply the Minister advised that guidelines for the exercise of the discretion would be developed. In relation to review, the Minister advised that an exemption is usually required at short notice and there would not be time for a full AAT review. However, expeditious internal review by a senior officer not involved in the original decision would be provided. The Committee agreed that this was reasonable and would provide an adequate paper trail.

Future activities

This report has addressed the 48 replies which the Committee has received from Ministers for its first meeting of this Parliament. The Committee will also shortly make its usual end of sittings statement setting out a summary of the dozens of letters which the Committee has sent to Ministers and to which it is waiting replies. As indicated above there are a number of matters upon which the Committee will make further special statements to the Senate and there will certainly be other matters which will also justify a special statement. The Committee reports in detail on its scrutiny of individual instruments in its Annual Report and the report for 1997-98 is now being finalised. There are also indications that another Legislative Instruments Bill may be introduced and the Committee will give the same exacting attention to this as it did to the previous Bills.