ADMINISTRATIVE REVIEW COUNCIL

REPORT TO THE ATTORNEY-GENERAL

RULE MAKING BY COMMONWEALTH AGENCIES

Report No. 35

Australian Government Publishing Service Canberra

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© Commonwealth of Australia 1992 ISBN 0 644 24574 3 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without written permission from the Director, Publishing and Marketing, ALPS. Inquiries should be directed to the Manager, AGPS Press, Australian Government Publishing Service, GPO Box 84, Canberra ACT 2601.

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ADMINISTRATIVE REVIEW COUNCIL PROFESSOR C.A. SAUNDERS 5th FLOOR, AMP BUILDING PRESIDENT HOBART PLACE CANBERRA ACT 2601 TEL (06) 247 5100 FAX (06) 257 6121 26 March 1992 The Hon Michael Duffy MP Attorney-General Parliament House CANBERRA ACT 2600 Dear Attorney-General I have pleasure in submitting to you a report by the Administrative Review Council entitled Rule Making by Commonwealth Agencies. Yours sincerely

Professor Cheryl Saunders President

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The members of the Administrative Review Council at the time of this report’s adoption were: Professor C A Saunders (President) Mr AJ Cameron The Hon Justice EA Evatt AO The Hon Justice DF O’Connor Mr SP Charles QC Mr C Conybeare Mr SA Hamilton Mr DA Hollway Mr JF Muir AO Ms CP Petre Mr AD Rose Mr IJK Ross Ms HF Vorrath The members of the committee responsible for overseeing the final stages of the report were Professor Saunders (Chair), Justice Evatt, Mr Hamilton, Justice O’Connor, Professor D C Pearce, Mr Rose and Ms Vorrath. The Council expresses its gratitude to Professor Dennis Pearce who was Chairman of the committee until his membership of the Council ended in January 1991 and remained with the project as consultant, to its Director of Research, Mr Bert Mowbray, and to Mr Stephen Bourke who had responsibility for this project.

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CONTENTS

Paragraph Page SUMMARY ix RECOMMENDATIONS x INTRODUCTION 1 Origin of the report 1 The project 1 A lay person’s guide to the report 2 CHAPTER 1 : BACKGROUND 3 Delegation in early times 1.4 3 Delegation today 1.6 3 Power to delegate 1.7 3 Safeguards 1.9 4

Scrutiny of excessive delegation 1.10 4 Choice of delegate 1.11 4 Publication 1.12 5 Tabling and disallowance 1.13 5 Scrutiny of delegated instruments 1.15 5

Judicial review 1.15 5 New forms of instruments 1.16 5 Current problems 1.23 7 A new regime for the Commonwealth 1.25 7 CHAPTER 2 : DISTINCTION BETWEEN PRIMARY AND DELEGATED LEGISLATION

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Introduction 2.1 9 Existing guidelines 2.3 9

The Legislation Handbook 2.5 9 Guidelines of the Senate Standing Committee on Regulations and Ordinances

2.6

10

Guidelines of the Senate Standing Committee for the Scrutiny of Bills

2.7

10

Application of the guidelines 2.10 11 Proposed criteria 2.14 11

Questions of policy 2.16 12 Rights and liberties 2.19 12 Offence and penalty provisions 2.21 12 Taxation provisions 2.25 13 Fees and charges 2.26 13 Appropriation 2.27 13 Procedural matters 2.29 14 Amendments to Acts 2.33 14

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Paragraph Page

CHAPTER 3 : THE AMBIT OF THE LEGISLATIVE INSTRUMENTS ACT

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Characteristics of legislative instruments 3.2 15 Legislative instruments determine the content of the law 3.5 15 Legislative instruments contain binding rules rather than mere Guidelines

3.7

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Legislative instruments usually have general application 3.10 16 Ambit of the Act 3.12 16

Identification of instruments by class or maker 3.13 17 Instruments expressly subjected to the Act 3.15 17 Application to all instruments of a legislative character unless expressly excluded

3.17

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CHAPTER 4 : DRAFTING AND PREPARATION OF DELEGATED LEGISLATIVE INSTRUMENTS

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Responsibility for drafting 4.1 19 Arrangements with agencies 4.12 20 Report to Parliament 4.13 21 Rationalising the classes of instruments 4.15 21 CHAPTER 5 : CONSULTATION 23 Introduction 5.1 23 Consultation in the early period of Federation 5.5 23 Current Commonwealth position on consultation 5.7 23 Consultation in Victoria 5.10 24

Assessment of the Victorian procedures 5.17 26 Consultation in New South Wales 5.24 27 A new consultation regime for the Commonwealth 5.27 28 Exceptions to the consultation regime 5.31 28

Increases or decreases in charges or fees in line with the Budget

5.33

28

Minor machinery rules 5.34 29 Statutory consultation already required 5.35 29 Advance notice provides an advantage 5.36 29 Higher public interest 5.37 29 Public interest and rules of court 5.39 29

Second round consultation 5.40 30 Procedure for consultation 5.42 31

Notification 5.42 31 ‘Rule Making Proposal’ 5.44 31 Form of consultation 5.47 31 Memorandum to Parliament 5.48 32

‘Macklin’ clauses 5.49 32

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Paragraph Page CHAPTER 6 : SCRUTINY OF LEGISLATIVE INSTRUMENTS 34 Introduction 6.1 34 Instruments subject to scrutiny 6.3 34 Tabling 6.5 34 Nature of parliamentary control 6.9 35 Role of the Senate Standing Committee on Regulations and Ordinances

6.16

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Adequacy of consultation 6.23 38 Review on policy grounds 6.24 38

Procedures for scrutiny 6.28 39 Timetable for tabling and disallowance 6.32 40 Standing referral of instruments 6.36 41 Ministerial undertakings 6.39 41

Deferred disallowance 6.42 42 Partial disallowance 6.44 42 Documents incorporated by reference 6.49 43 CHAPTER 7: SUNSETTING OF DELEGATED LEGISLATION 45 Introduction 7.1 45 New South Wales 7.4 45 Victoria 7.6 46 Proposals for the Commonwealth 7.9 46 CHAPTER 8: ACCESS TO DELEGATED LEGISLATION 49 Introduction 8.1 49 Publication requirements 8.4 49

Statutory rules 8.4 49 Other statutory publication requirements 8.13 50 Non-statutory publication 8.14 51 Conclusions 8.18 51

Legislative Instruments Register 8.20 52 US Federal Register 8.20 52 An Australian register 8.21 52

Instruments to commence on publication 8.27 53 Definitive text of legislative instruments 8.30 53 Documents incorporated by reference 8.32 54 CHAPTER 9: RULES OF COURT 55 Power to make rules 9.2 55 Rules of court today 9.5 55

High Court 9.6 56 Federal Court 9.11 56 Family Court 9.12 56 Summary 9.14 57

Distinctive characteristics of rules of court 9.15 57 Made by courts 9.16 57 Alternative inherent source of power 9.18 58 Character of rules of court 9.22 58

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Paragraph Page

Views of the courts 9.24 59 Consultation and sunsetting in New South Wales and Victoria 9.27 59 The Legislative Instruments Act and rules of court 9.31 60

Parliamentary scrutiny and publication 9.32 60 Consultation and sunsetting 9.35 61 Threat to independence 9.40 61 Expedition 9.44 62 Value of consultation 9.47 62 Resource requirements 9.49 63 Conclusions 9.53 63

CHAPTER 10: NATIONALLY UNIFORM REGULATIONS 64 Making of national food standards 10.3 64 Rule making issues 10.7 65

The legislative character of national food standards 10.7 65 Legislative instruments requirements 10.8 65

Drafting 10.10 65 Consultation 10.11 65 Parliamentary scrutiny 10.16 66 Access 10.19 66 Sunsetting 10.20 67

Conclusions 10.21 67 APPENDIXES 69 Appendix 1: List of submission makers 69 Appendix 2: Diversity of instruments: agency responses to issues paper

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Appendix 3: Terms of reference of delegated legislation committees 92 INDEX 96

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SUMMARY The Australian system of government is premised on the existence of a distinction between legislative, executive and judicial functions, with the legislative function involving the making of legally binding rules, usually of wide or general application. It has long been recognised that it is impracticable for all rules to be made by Parliament. Thus, Parliament has delegated legislative powers to others, principally members of the executive. The traditional form of delegated instrument has been the statutory rule, most commonly the regulation, made by the Governor-General in Council, for which a framework for making, publication and scrutiny has developed over time. However, in recent years there has been a vast growth in the volume and diversity of delegated legislative instruments. Different and often inconsistent practices for drafting, consultation, scrutiny and publication apply. The extension of some of the procedures associated with statutory rules has overcome some anomalies but significant problems still remain. In particular, the framework of principles and procedures for the making of delegated legislative instruments is patchy, dated and obscure. In this report the Council examines these principles and recommends significantly improved procedures. They should apply to all delegated instruments that are legislative in character, here called ‘rules’. The Council proposes a new regime for the Commonwealth, the principal elements of which are: • better guidance on matters appropriate for inclusion in Acts of Parliament and matters

on which can be included in delegated legislation; • improved practices to ensure high quality drafting for all Commonwealth rules; • mandatory consultation with the community prior to the making of important rules; • procedures for parliamentary scrutiny and control which should apply to all rules; • sunsetting of all rules on a ten-year rotating basis; • the establishment of a Legislative Instruments Register in which all rules should be

published, with rules unenforceable if not published in this way; and • special adaptations of these general procedures for rules of court and rules made under

intergovernmental schemes for nationally uniform regulations. As a vehicle for this new regime, the Council believes it is desirable to enact a new statute to be called the Legislative Instruments Act. This Act should apply to all rules except those expressly exempted by their own parent Acts of Parliament. The Council anticipates that the recommendations included in this report will provide the basis for an efficient rule making regime with enhanced public participation in the making of rules, quality drafting, effective scrutiny, and easy access.

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RECOMMENDATIONS∗ Recommendation 1 (1.30) (1) A new Act to be called the Legislative Instruments Act should be enacted to prescribe procedures for the making, publication and supervision of delegated legislative instruments in accordance with this report. (2) Section 46A and Part XII of the Acts Interpretation Act 1907 and the Statutory Rules Publication Act 1903 should be repealed. Recommendation 2 (2.33) The following criteria for the division of content between primary and other forms of legislation should be incorporated into the Legislation Handbook: ‘The following matters should be implemented only through Acts of Parliament: • significant questions of policy including new policy or fundamental changes to existing

policy; • rules which have a significant impact on individual rights and liberties; • provisions creating offences which impose significant criminal penalties (imprisonment

or fines of more than $1 000 for individuals or more than $5 000 for corporations); • administrative penalties for regulatory offences; • provisions imposing taxes; • significant fees and charges (more than $1 000); • procedural matters that go to the essence of the legislative scheme; and • amendments to Acts of Parliament.’ Recommendation 3 (3.23) (1) The Legislative Instruments Act should apply to every delegated instrument that is legislative in character, unless expressly excluded by its enabling provision. (2) The definition of ‘legislative’ should not be set out in the Act. (3) To assist agencies in deciding whether an instrument is legislative, the essential characteristics of legislative instruments should be set out in the Legislation Handbook. Recommendation 4 (4.11) The Office of Legislative Drafting should be given responsibility under the Legislative Instruments Act for ensuring that delegated legislation is prepared to an appropriate standard. Recommendation 5 (4.12) (1) Where an instrument is legislative in character, it should be drafted by the Office of Legislative Drafting or arrangements for drafting should be made with that Office. (2) Better drafting in agencies should be encouraged by: • ‘settling’ arrangements where the agency undertakes primary drafting and then sends it

to the Office of Legislative Drafting for clearance; ∗ The paragraph number in brackets after each recommendation is that of the paragraph immediately preceding the recommendation.

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• the supply of drafting precedents by the Office of Legislative Drafting; • temporary placement of agency drafters in the Office of Legislative Drafting; and • temporary placement of drafters from the Office of Legislative Drafting in agencies. Recommendation 6 (4.14) The memorandum to be prepared in accordance with recommendation 12 should include a statement on how each instrument was prepared, including: • whether the instrument was drafted by the Office of Legislative Drafting; • whether the instrument was drafted by the agency and settled with the Office of

Legislative Drafting; or • whether the instrument was drafted by the agency pursuant to arrangements approved

by the Office of Legislative Drafting. Recommendation 7 (4.17) The Office of Parliamentary Counsel, in consultation with the Office of Legislative Drafting, should seek to reduce the number of classes of legislative instruments authorised by statute and to establish consistency in nomenclature. Recommendation 8 (4.18) (1) The Legislative Instruments Act should apply to all ‘rules’. A ‘rule’ should be defined in the Act as any delegated instrument which is legislative in character. (2) The word ‘rule’ should be used generally in this and other Acts to describe any delegated legislative instrument. Recommendation 9 (5.39) The Legislative Instruments Act should provide for mandatory public consultation before any delegated legislative instrument is made, subject to the following exceptions: • where the instrument provides for an increase or decrease in fees or charges and the

increase or decrease does not exceed the amount set by the Budget; • where the instrument is of a minor machinery nature, including savings and transitional

provisions, and it does not fundamentally alter the existing arrangements; • where the Attorney-General certifies that an Act empowering the making of delegated

legislation provides for consultation comparable to that required by the Legislative Instruments Act;

• where advance notice of a particular legislative rule would enable individuals to gain advantage that would otherwise not accrue;

• where the Attorney-General certifies that the public interest requires that consultation should not be undertaken in a particular case. Any certificate so issued should be tabled in the Parliament with the instrument and should state the grounds of public interest relied on; and

• where the instrument contains rules of court which in accordance with recommendation 30 the court has determined in the public interest should be made without consultation.

Recommendation 10 (5.41) The Legislative Instruments Act should require agencies to undertake ‘first round’ consultation only. Any further consultation should be at the discretion of the agency.

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Recommendation 11 (5.48) Under the Legislative Instruments Act, the procedure for consultation prior to the making of a legislative instrument should be as follows: • notification of intention to make the instrument by advertisement in appropriate national

daily newspapers and, where appropriate, trade or professional and local journals; • publication of a draft instrument accompanied by a ‘Rule Making Proposal’; • the ‘Rule Making Proposal’ would contain two parts:

- part 1 would summarise the proposal and contain a statement of its objectives; - part 2 would;

- analyse the alternative ways of achieving the proposal, including whether it can be achieved by non-regulatory means;

- provide an estimated cost of the proposal, covering both the financial and social costs and the benefits to government and the affected public, and of its alternatives; and

- set out the reasons for the preferred approach; • any person to be given at least twenty-one days in which to make a submission; • public hearings to be held for controversial or sensitive proposals; and • agencies to be required to take all submissions into account. Recommendation 12 (5.48) (1) Under the Legislative Instruments Act, agencies should be required to prepare a memorandum setting out the consultation procedures followed for the legislative instrument, attaching a copy of the ‘Rule Making Proposal’ and including a statement on drafting prepared by the Office of Legislative Drafting in accordance with recommendation 6. (2) Where consultation was not undertaken as required by the Legislative Instruments Act, the memorandum should state the reasons for not so consulting. (3) Where an instrument is exempt from consultation under recommendation 9, this should be stated in the memorandum. (4) The Office of Legislative Drafting should be required to send the memorandum to the Parliament when the instrument is forwarded for tabling. Recommendation 13 (5.52) The length of time set in ‘Macklin’ clauses for commencement of legislation should allow for adequate public consultation for delegated legislation. Recommendation 14 (6.4) All instruments to which the Legislative Instruments Act applies should be subject to parliamentary scrutiny and control. Recommendation 15 (6.8) (1) All instruments to which the Legislative Instruments Act applies should be subject to tabling in Parliament. An instrument which is not tabled within six sitting days should cease to have effect.

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(2) The Office of Legislative Drafting should be required to forward all instruments to which the Legislative Instruments Act applies to the Tabling Offices of Parliament. Recommendation 16 (6.15) (1) All instruments to which the Legislative Instruments Act applies should be subject to control by the Parliament. (2) Disallowance by either House of Parliament rather than approval should remain the norm for parliamentary control of delegated legislation and should be prescribed by the Legislative Instruments Act. Recommendation 17 (6.22) The Senate should give consideration to elaborating the terms of reference of its Standing Committee on Regulations and Ordinances having regard to the experience set out in the Legislative Scrutiny Manual and the developments in other jurisdictions. Recommendation 18 (6.23) The terms of reference of the Senate Standing Committee on Regulations and Ordinances should be expanded to include failure by an agency to consult in accordance with the procedures set out in the Legislative Instruments Act as an additional matter to which the Committee may have regard. Recommendation 19 (6.35) The period within which legislative instruments should be tabled in each House of Parliament should be six sitting days from publication in accordance with the Legislative Instruments Act. Recommendation 20 (6.43) The Legislative Instruments Act should permit a deferral of the effect of a disallowance motion for up to six months. Recommendation 21 (6.48) The proposed Legislative Instruments Act should provide for partial disallowance of delegated legislative instruments by either House of Parliament. Recommendation 22 (6.56) (1) The Legislative Instruments Act should require the text of any document applied, adopted or incorporated by reference to be tabled with the delegated legislation. Failure to table the incorporated document with the legislative instrument should mean that the incorporating provision should cease to have effect. (2) The document that is applied, adopted or incorporated by reference should be scrutinised to allow the Parliament to determine whether the provision allowing for the application, adoption or incorporation should be disallowed. Recommendation 23 (7.18) All existing principal instruments of a legislative character and all instruments subject to the Legislative Instruments Act should be sunsetted as follows: Date prior to Date of sunsetting 1 Jan 1992 of last change to the principal instrument Before 1 Jan 1980 1 Jan 1995

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1 Jan 1980 to 31 Dec 1986 1 Jan 1997 1 Jan 1987 to 31 Dec 1991 1 Jan 2000 Date of first making Date of sunsetting of principal instrument After 1 Jan 1992 Ten years after commencement of the principal instrument Recommendation 24 (8.19) The Statutory Rules Series should be replaced by a new series to cover all delegated legislative instruments that are subject to the Legislative Instruments Act. Recommendation 25 (8.26) Under the Legislative Instruments Act, a Legislative Instruments Register should be established in which all delegated legislative instruments covered by the Act should be published. Recommendation 26 (8.26) (1) Responsibility for the establishment and maintenance of the Legislative Instruments Register, including publication of instruments, should be with the Office of Legislative Drafting. (2) The possibility of computer-based publication and storage of the Register, and access to the Register, should be investigated by the Office of Legislative Drafting. Recommendation 27 (8.29) (1) Under the Legislative Instruments Act, a delegated legislative instrument should commence from the date on which it is published in the Legislative Instruments Register and take effect immediately unless a different time is specified in the instrument. (2) Where a delegated legislative instrument is expressed to take effect from a date earlier than its date of publication in the Legislative Instruments Register the instrument should be of no effect where: • it affects a person’s rights existing at the date of publication in a manner prejudicial to

that person; or • it imposes liabilities in respect of anything done or omitted to be done before the date of

publication. (3) A legislative instrument should be unenforceable until it is published in the Legislative Instruments Register. Recommendation 28 (8.31) Under the Legislative Instruments Act, a person shall not be subjected to any prejudice by reason of their reliance on the text of a legislative instrument as published in the Legislative Instruments Register where that text differs from that in the original instrument made by the relevant authority. Recommendation 29 (8.34) (1) Under the Legislative Instruments Act, the text of any document, other than an Act, applied, adopted or incorporated in a legislative instrument by reference should have no effect until published in the Legislative Instruments Register.

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(2) Changes to any material, apart from Acts and other legislative instruments, applied, adopted or incorporated from time to time should be placed on the Legislative Instruments Register and to the extent that they are not, they should be unenforceable. Recommendation 30 (9.54) (1) Subject to recommendation 30(2), rules of court should be covered by the comprehensive regime for making, publication and review of delegated legislation proposed for the Legislative Instruments Act, including the consultation in the circumstances identified in this report and sunsetting requirements. (2) Consultation need not be undertaken in a particular case for rules of court if the court determines that the public interest so requires. In such a case, the court should be required to explain its reasons and the grounds of public interest relied upon in its Annual Report. Recommendation 31 (10.26) (1) Where possible, the procedures recommended in this report for making, publication and review of delegated legislation should apply to legislative instruments made under intergovernmental schemes for nationally uniform regulation. (2) Where this is not possible, the following minimum standards should apply: • the instruments should be drafted by or be settled with professional drafters; • there should be mandatory consultation along the lines of that set out in the National

Food Authority Act when a new instrument is made or when an existing instrument is revoked or varied;

• this consultation should include notice to the parliament for each participating jurisdiction;

• the instruments should be published in the Legislative Instruments Register; and • the instruments should be subject to a sunsetting requirement ten years after the

principal instrument is first made.

INTRODUCTION Origin of the report The Administrative Review Council’s interest in the topic of rule making by Commonwealth agencies was originally prompted by specific issues arising directly from its work on administrative review. The most important issues were: the nature of a general power to give binding directions to tribunals, which had appeared in different forms in several Commonwealth Acts; the circumstances in which review arrangements should be prescribed in subordinate rather than primary legislation; and the application of judicial review to decisions of a legislative character. As the project got under way, however, the Council quickly encountered a more broad-based concern about subordinate legislation, caused partly by the considerable increases in its diversity and volume in recent years. Particular issues raised included the number of delegated legislative instruments, the different forms they take, the difficulties of obtaining access to some of them and the limited opportunities for public and parliamentary consultation and scrutiny of rules of this kind. The project The Council decided to conduct a project examining the full range of current issues relating to the making of rules by Commonwealth agencies following a conference on rule making that it sponsored on 31 August 1989. The conference was attended by representatives of government agencies, the Parliament, universities, welfare rights and business organisations and law publishers. The views expressed at the conference were included in an issues paper which formed the basis for public consultation on the project. The issues paper, which was released on 30 June 1990, sought comment from agencies and interested members of the public on a range of matters grouped under five broad terms of reference. Agencies were asked in particular, to provide information on the types of instruments made by them, the number of each type of instrument made in a year, and the name given each type of instrument, with reasons why the name was chosen. Statistical information was sought where relevant to the issues raised. The terms of reference were: (1) To examine the distinction between primary and other forms of legislation and what

should form the prima facie division of content between them. (2) To review the nature and forms of legislative instruments to produce uniformity of

terminology and common content in the various forms of instruments. (3) To review the Acts Interpretation Act and the Statutory Rules Publication Act to

designate the different forms of subordinate legislation and the making and review processes appropriate to each.

(4) To review procedures for making subordinate legislation with regard being paid to

notice and consultation procedures and the impact that the Victorian Subordinate Legislation Act procedures have had.

(5) To review the method of publication of subordinate legislation with attention being

paid to the need for consolidation of instruments and their publication in accessible

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form, and to consider in this context the possibility of the establishment of a Federal register.

Following receipt of the responses to the issues paper from agencies and other interested parties, the Council conducted a series of open consultations in Melbourne, Sydney and Canberra in April and May of 1991. These consultations were used by the Council to report on the submissions received and to seek reactions to some preliminary proposals for change. At the same time, the Council had discussions with the Regulation Review Committee of the New South Wales Parliament and the Legal and Constitutional Committee of the Victorian Parliament, where new procedures for the making and scrutiny of subordinate legislation have been introduced in recent years. This report takes into account the information received and views expressed from all these sources. The Council greatly appreciates the assistance it has received from all of them.

A lay person’s guide to the report

The making of delegated legislation is an area of the law that usually does not attract much public attention. Yet its operation can have a significant effect on the way individuals or businesses conduct their affairs. The relative obscurity of the delegated legislation process can make it appear to be a very technical area. This brief guide aims to assist those with little knowledge of this area of the law to understand the existing system and to set the context for the changes proposed in this report. Parliament may enact legislation itself or it may authorise another body to make legislation. This authorisation, appearing in almost every Act of Parliament, allows the making of delegated or subordinate legislation. It is this type of legislation with which this report is concerned. The authorisation may take a variety of forms. It may allow the Governor-General to make regulations or it may confer power on some other body, such as a Minister of the Crown or a public servant, to make a rule in another form with another name. Whatever form it takes delegated legislation has the force of law just as if it were an Act of Parliament. Rules made by delegated legislation have some common features: • they must be authorised by Parliament; • they usually, but not always, deal with the procedural details, rather than the broad

framework of a legislative scheme; • their making often must be notified in the Commonwealth Gazette; • some rules can be disallowed by Parliament if it does not approve of them; and • most rules are required to be available to the public, but in a variety of ways. However, over the years Commonwealth delegated legislation has fallen into a parlous state. Different procedures for drafting, consultation, publication and parliamentary scrutiny apply. In this report the Council has made proposals to rationalise this area of law making. The chapters of this report are arranged so that the reader may follow the process of making delegated legislation sequentially. Current practices and proposed changes are described in greater detail in the chapters.

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CHAPTER 1 BACKGROUND

1.1. The Australian system of government is premised on the existence of a distinction between legislative, executive and judicial functions, however difficult the line may be to draw at the margins. This report is primarily concerned with the legislative function. 1.2. In broad terms the legislative function involves the making of legally binding rules, usually of wide or general application. Legislation is required if rights and duties are to be affected, existing law altered, taxation imposed, or moneys appropriated. The contrast is with executive power, which typically involves the application of law to particular cases. An exercise of power which is not judicial is assumed to be either legislative or executive. 1.3. The potential significance of legislation and the usual generality of its effect justify the requirement for it to be made or at least authorised by Parliament. The procedures of Parliament mean that proposed new laws are publicly exposed before they are made. In theory, this provides an opportunity for a wider range of views to be brought to bear on a proposal before it becomes law. After enactment, new laws are printed and published in a regular series and are available for purchase by the public. Delegation in early times 1.4. It has long been realised that it is impracticable for all legally binding rules to be made by Parliament itself. In Great Britain, the practice of delegating rule making power can be traced back at least to the Statute of the Staple of 1385. The reign of Henry VIII also produced some striking examples of delegated legislation. One of these, the Statute of Wales of 1542, allowed Henry VIII to ‘alter the laws of Wales and to make ordinances for Wales, such alterations and new laws and ordinances to be published under the great seal and to be of as good strength, virtue and effect as if made by the authority of Parliament’. 1.5. While delegated legislation has been a familiar phenomenon since early times, concern at its increasing use began to emerge early in the present century. The Donoughmore Committee on Ministers’ Powers of 1932 was appointed to investigate claims made by the then Lord Chief Justice of England, Lord Hewart. His book, The New Despotism, was a forthright attack on delegation of legislative power to the executive, which Lord Hewart attributed to a bureaucratic conspiracy. While rejecting the more extreme claims, the Donoughmore Committee nevertheless recommended the establishment of a parliamentary committee to scrutinise delegated legislation. The Australian Senate established such a committee in 1932, although the United Kingdom Parliament did not act until 1943. Delegation today 1.6. Today, the practice of rule making by means of delegated legislation is widely accepted. Pressures to delegate rule making power come from various quarters. The most common include: • Scarcity of parliamentary time. The volume and complexity of legislation is such that

Parliament has neither the time nor the resources to enact all rules directly and to deal with their amendment;

• Flexibility and responsiveness. Some rules must be changed more often and/or more quickly than is feasible with Acts of Parliament. This may be the case where the

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environment in which rules are operating is uncertain and rapidly changing, particularly where the rules are specific and prescribe matters of detail; and

• Complexity of legislation. It may be argued that it is undesirable for Acts of Parliament to be cluttered with matters of detail. This argument assumes that principal rules are more readily comprehensible if expressed more concisely.

Power to delegate 1.7. Despite the apparent three-way separation of power under the Commonwealth Constitution, the High Court in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan1 held that the Parliament could validly delegate legislative power. By way of rationale, Mr Justice Dixon pointed out that Parliament retained ultimate control of an exercise of delegated legislative power through its ability to repeal the enabling statute. Individual judges also considered the circumstances in which a delegation would be invalid. Two mentioned by Mr Justice Evatt have particular relevance for present purposes: • the relationship between the delegate and Parliament, with implications for the power of

Parliament to control the exercise of the delegation; and • the scope of the power delegated, at least in the sense that too broad a delegation might

not fall within a head of Commonwealth constitutional power. 1.8. While as a matter of law Mr Justice Dixon’s rationale is correct, it would be unrealistic for the sole means of control of the exercise of delegated legislative power to be by withdrawal of the delegated power by the Parliament. Additional, more practical, mechanisms have in fact been developed. Safeguards 1.9. Various constraints on the making or authorisation of delegated legislation have been developed over time to safeguard against its abuse. A framework of law and practice at the Commonwealth level now applies to the making, publication and scrutiny of at least some forms of delegated legislation. Its principal components are set out below. Scrutiny of excessive delegation 1.10. The Senate Standing Committee for the Scrutiny of Bills examines and reports to the Senate on clauses of Bills which, among other things, inappropriately delegate legislative powers. Adverse reports may result in amendments to a Bill to bring a delegation within proper limits or to subject instruments made under a delegation to tabling and disallowance by the Parliament. Choice of delegate 1.11. The Governor-General in Council traditionally makes delegated legislation, usually in the form of regulations. The process requires preparation of an explanatory statement and involves ministers and officers in the rule making process. The use of these instruments relative to other forms of delegated legislation is decreasing, however. Other instruments outside the Statutory Rules Series may be made by other officers of executive government. Many are also subject to tabling and disallowance in the Parliament (`disallowable instruments’). These now outnumber the traditional form of delegated instruments by two to one. These other forms of delegated rule making avoid the formal procedures and whatever opportunity for additional scrutiny the Executive Council offers.

1 (1931) 46 CLR 73.

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Publication 1.12. The Statutory Rules Publication Act 1903 requires all statutory rules to be numbered, printed and sold by the Government Printer. Statutory rules are defined in the Act as rules, regulations and by-laws made by the Governor-General, a Minister, the Inter-State Commission or a government department. They also include rules of court. A statutory rule must be available for purchase at the time the rule is notified or as soon as practicable thereafter. This requirement also extends to disallowable instruments.2 Tabling and disallowance 1.13. The Acts Interpretation Act 1901 requires instruments to which it applies to be tabled within fifteen sitting days of their making and allows a further fifteen sitting days within which a motion for disallowance may be made. If the motion is not called upon within another fifteen sitting days, the instrument is deemed to have been disallowed. An instrument ceases to have effect from the date of its disallowance or deemed disallowance. Part XII of the Acts Interpretation Act applies this procedure to regulations and section 46A applies it to other instruments which are designated as disallowable under their enabling Acts. Scrutiny of delegated instruments 1.14. The Senate Standing Committee on Regulations and Ordinances scrutinises delegated legislative instruments by reference to specified criteria and reports to the Senate on them. Principal criteria are whether the delegated legislation is in accordance with the statute, trespasses unduly on personal rights and liberties, unduly relies on administrative discretions without the safeguard of merits review, and includes matter more appropriate for parliamentary enactment. Adverse reports by the Committee may result in disallowance of the instrument. Judicial review 1.15. Judicial review of delegated legislative instruments is also available. While there are numerous instances of the invalidation of instruments which exceed the literal terms of a power, historically the grounds and scope of judicial review have been more limited for delegated legislation than for executive discretion. Nevertheless, there has been some expansion in the principles of judicial review of delegated legislation in recent times. For example in R v Toohey; ex parte Northern Land Council3, an application for review of delegated legislation on the grounds of improper purpose was granted.

New forms of instruments

1.16. The traditional form of delegated legislative instrument is the regulation, the most common type of statutory rule, made by the Governor-General in Council. The parliamentary scrutiny regime originally applied primarily to regulations, although some others were subjected to similar requirements on an individual basis. The publication regime was somewhat wider. However, in recent times this approach, relying as it does on the name of an instrument, has become increasingly less satisfactory. 1.17. There has been vast growth in the volume of delegated legislative instruments. This is illustrated by Table 1 which shows the numbers of statutory rules and disallowable 2 Section 46A(1)9c) Acts Interpretation Act 1901 applying section 5(3)-(3C) of the Statutory Rules Publication Act 1903. 3 (1981) 151 CLR 170.

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instruments made since 1982-83. The trend is evident. The number of instruments has more than doubled, the main contribution coming from the growth in disallowable instruments, with the number of statutory rules remaining relatively constant. By 1990-91, the Senate Standing Committee on Regulations and Ordinances reported 484 statutory rules and 1 161 other disallowable instruments made in that year.

Table 1: Statutory rules and disallowable instruments from 1982-83 to 1990-91 Year Statutory Disallowable Total Rules instruments 1982-83 553 150 703 1984-85 445 276 721 1985-86 429 426 855 1986-87 322 335 657 1987-88 345 493 838 1988-89 398 779 1177 1989-90 411 820 1231 1990-91 484 1161 1645 Source: Reports of the Senate Standing Committee on Regulations and Ordinances. 1.18. In addition, an unknown number of instruments which are legislative in character are made each year, but are not subject to tabling and disallowance requirements. These instruments are made by a variety of persons and bodies in the executive branch including ministers, secretaries to departments, heads of statutory authorities and others. 1.19. There is a wide variety of classes of disallowable and other instruments. Some classes relate to the function of the instrument, for example the plan of management for a fishery. Others offer a more generic description, including determination, direction, order, notice or declaration. The variety of classes is limited only by the imagination of the sponsoring agency. In 1988, the Senate Standing Committee on Regulations and Ordinances reported 115 different categories of disallowable instruments.4 1.20. To a degree, the publication and parliamentary scrutiny requirements applicable to statutory rules have been adapted to cover the new forms of instruments. Section 46A of the Acts Interpretation Act 1901 picks up and applies the tabling and disallowance provisions of the Acts Interpretation Act and the notification and purchase requirements of the Statutory Rules Publication Act to instruments subjected to the regime by their enabling Act. In consequence, the Regulations and Ordinances Committee now scrutinises not only statutory rules but also the great variety of disallowable instruments. The existence of the Senate Standing Committee for the Scrutiny of Bills, with terms of reference directed to procedures for the exercise of delegated legislative power, assists to ensure that the parliamentary scrutiny regime is applied. 1.21. On one view, the requirements for publication, printing and sale apply more broadly still. Regulation 3 of the Rules Publication Regulations, promulgated in 1913, provides:

Every exercise of a statutory power... which is of a legislative and not executive character, shall constitute the making of a statutory rule within section 5 of the Act and these regulations.

4 Senate Standing Committee on Regulations and Ordinances, Eighty-Sixth Report, May 1990 at page 9.

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1.22. On its face, the regulation encompasses all delegated legislative instruments whether or not they are acknowledged as such.5 It could be argued that failure to comply with section 5 of the Statutory Rules Publication Act means the relevant instrument does not take effect until it is available in accordance with that section.6 If this is correct, some instruments of a legislative character, which hitherto have been assumed not to be subject to printing and publication requirements, may be inoperative.

Current problems

1.23. The extension of some of the procedures applicable to statutory rules has overcome some of the anomalies caused by the new forms of delegated legislative instruments. Significant problems remain, however. They are increasing with the proliferation of instruments. They are not resolved by the existence of regulation 3 of the Rules Publication Regulations which has been ignored. The problems include: • the absence of any clear view of the distinction between matter appropriate for delegated

and for primary legislation; • the absence of any view of the reasons why different forms of delegated legislative

instruments are used; • the poor quality of drafting of some delegated legislative instruments; • the anomaly that primary legislation receives wide public exposure before enactment, at

least in theory, whereas delegated legislation does not; • an element of chance in the application of the tabling and disallowance procedures of

Parliament to delegated legislative instruments which are not statutory rules; • the inaccessibility of delegated legislation; and - the existence of instruments that under

present arrangements are not treated as being either legislative or executive in character. 1.24. In addition to these gaps in the existing Commonwealth regime, the Commonwealth has failed to keep pace with developments in procedures for the making and scrutiny of delegated legislation that have occurred in other jurisdictions around Australia. In particular, New South Wales, Queensland, South Australia and Victoria have introduced general arrangements for ‘sunsetting’ existing and new delegated legislation. Another important development at State level, again in New South Wales and Victoria, is the requirement for public consultation in the making of significant delegated legislative instruments. In a general review of procedures for delegated legislation, it is appropriate to examine these developments at State level as well.

A new regime for the Commonwealth

1.25. Clearly the framework of principles and procedures for the making of delegated legislative instruments at the Commonwealth level is patchy, dated and obscure. The contrast with the comprehensive, integrated and modern regime introduced by the Commonwealth in the 1970s for the exercise and scrutiny of executive power is stark. The three central components of the administrative law system, the Administrative Appeals Tribunal, the Administrative Decisions (Judicial Review) Act (‘AD(JR) Act’) and the Ombudsman, apply to decisions of an administrative character. It is timely now to develop a complementary regime for decisions of a legislative character made under authority delegated by statute. The Council foreshadowed its intentions to consider legislative instruments separately in its report Review of the Administrative Decisions (Judicial Review) Act:

5 See the discussion by P. Bayne ‘The Publication of Delegation Legislation’ (1989) 63 ALJ 355. 6 Watson v Lee (1979) 144 CLR 374.

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the Ambit of the Act7, in which it decided not to recommend the extension of the ambit of the AD(JR) Act to decisions of a legislative character at that stage.

7 Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, Report No. 32, March 1989 at page 97.

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1.26. This report is concerned with the principles and procedures for the making, publication and parliamentary scrutiny of delegated instruments that are legislative in character. The underlying rationale of these principles and procedures suggests that they should apply to any legislative instrument. A similar approach is taken in the AD(JR) Act with respect to administrative decisions. Under this approach, the class of a legislative instrument is no longer the controlling factor. While the Council suggests that attempts be made to rationalise the classes of delegated legislative instruments, the mere assignment to a particular class should not affect the application of a new regime. 1.27. The Council recognises that the new regime that it proposes for the making, publication and scrutiny of delegated legislation, particularly the consultation and sunsetting requirements, will impose some additional costs on government agencies. These costs should, however, be weighed against: • the significant improvement in the quality of delegated legislation; • the value of public consultation; • the benefits from the periodic updating of the law; and • the improvement in access to the law. 1.28. Nevertheless, the Council accepts that inevitably there would be additional costs and would expect that acceptance by the Government of the recommendations would carry with it a commitment to adequately resource agencies to meet their new obligations. 1.29. As a vehicle for the new regime, it is desirable to enact a new statute, which might be called the Legislative Instruments Act, to cover the making, publication and supervision of all instruments of a legislative character. The Council so recommends. It follows that the Statutory Rules Publication Act and section 46A and Part XII of the Acts Interpretation Act should be repealed. 1.30. While the ordinances of the external Territories and some ordinances relating to the self-governing Territories are technically delegated legislation authorised by the Commonwealth Parliament, the proposals in this report do not extend to these instruments because they fall within a discrete and separate area of Commonwealth activity. Nevertheless, the principles and practices proposed in this report could usefully be applied to this area of delegated legislation. Recommendation 1 (1) A new Act to be called the Legislative Instruments Act should be enacted to prescribe procedures for the making, publication and supervision of delegated legislative instruments in accordance with this report. (2) Section 46A and Part XII of the Acts Interpretation Act 1901 and the Statutory Rules Publication Act 1903 should be repealed.

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CHAPTER 2

DISTINCTION BETWEEN PRIMARY AND DELEGATED LEGISLATION

Introduction

2.1. This chapter is concerned with the distinction between rules which should be made by the Parliament itself and matters which can properly be delegated to a subordinate law maker. 2.2. The procedures for the making of an Act of Parliament mean that a proposed new law receives some public exposure during its passage through both Houses. Delegated legislation is made quite differently. There is no requirement that measures be exposed publicly before they become law. Notice of the making of delegated legislation, if provided at all, is generally contained only in the Government Gazette. Where required, tabling in Parliament can take as long as three months. Despite this, most delegated legislation takes effect on notification that it has been made. These points of distinction make it desirable for there to be clear guidelines about the matters appropriate for delegated legislation.

Existing guidelines

2.3. The view that the general role of delegated legislation is to fill in details in a legislative scheme is well established. It assumes that once Parliament has debated and approved general principles in primary legislation the executive might properly be authorised to supply the details in accordance with those principles. There would be no need for Parliament to debate the matters but it could check whether the executive was acting in accordance with the established principles by requiring the tabling of delegated legislation and disallowing that which it did not approve. This remains the starting point for the distinction between primary and delegated legislation. 2.4. At the level of Commonwealth Government in Australia, guidance on the appropriate division of content between primary and other forms of legislation comes from at least three separate sources. They are the Legislation Handbook1 and the sets of guidelines used by the Senate Standing Committee on Regulations and Ordinances and the Senate Standing Committee for the Scrutiny of Bills in applying their terms of reference.

The Legislation Handbook

2.5. The Legislation Handbook is prepared by the Department of the Prime Minister and Cabinet for use by agencies in the development of legislation. The relevant passage in the Handbook states:

5.33. Matters of detail, or matters liable to frequent change should be dealt with by regulation, for example - (a) prescribing fees to be paid for various services; (b) prescribing forms for use in connection with legislation; (c) addresses where applications should be lodged; and

1 Legislation Handbook, AGPS, Canberra, 1988.

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(d) time within which certain steps should be taken.

5.34. The Office of Parliamentary Counsel needs to be aware of the general scope of any intended regulations so that a sufficiently wide regulation making power is included in the legislation. For example, where regulations are to confer judicial power, require the charging of fees or require the furnishing of a statutory declaration, express provision conferring power for these purposes must be included in the Act.

Guidelines of the Senate Standing Committee on Regulations and Ordinances 2.6. The Senate Standing Committee on Regulations and Ordinances is required by its terms of reference to examine delegated legislation to determine whether it contains matter more appropriate for parliamentary enactment (paragraph (d) of the terms of reference). The Seventy-Seventh Report of the Committee set out the following guidelines for this term of reference:

15. The Committee will look carefully at delegated legislation, including any ordinance, which - • manifests itself as a fundamental change in the law, intended to alter and redefine

rights, obligations and liabilities; • is a lengthy and complex legal document; • introduces innovation of a major kind into the pre-existing legal, social or financial

concepts; • impinges in a major way on the community; • is calculated to bring about radical changes in relationships or attitudes of people in a

particular aspect of the life of the community; • is part of a major uniform, or partially uniform, scheme which has been the subject of

debate and analysis in one or more of the State or Territory Parliaments but not in the Commonwealth Parliament; and

• takes away, reduces, circumscribes or qualifies the fundamental rights and liberties traditionally enjoyed in a free and democratic society.

16. Where any of these characteristics are present the Committee may recommend to the Senate that it disallow the delegated legislation. It will invite the Minister to introduce a Bill for debate and analysis. The more of these criteria that are present, the greater the likelihood that such a recommendation will be made.

Guidelines of the Senate Standing Committee for the Scrutiny of Bills 2.7. A third set of guidelines may be derived from the operations of the Senate Standing Committee for the Scrutiny of Bills. Principle (iv) of the Committee’s terms of reference requires it to identify any inappropriate delegation of legislative power. In its Annual Report 1987-88, the Committee stated that principle (iv) concentrates on ‘definitions which can be altered or, in some cases, established by regulations; and provisions which enable exemptions to be granted by regulation, or other legislative schemes which can be varied by regulation’.2 This principle has been frequently invoked by the Committee to draw attention to provisions which permit amendment of the empowering Act by delegated legislation, commonly known as Henry VIII provisions. 2.8. The Legislative Scrutiny Manual published by the Senate Procedure Office provides further guidance on the interpretation of this principle.3 It states that the Committee will examine closely any clauses where the delegation of legislative power: • is vague or imprecise; 2 Senate Standing Committee for the Scrutiny of Bills, Annual Report 1987-88, paragraph 3.40. 3 See the following extracts in the Legislative Scrutiny Manual: (a) The Operation of the Australian Senate Standing Committee for the Scrutiny of Bills 1981-85, Parliamentary Paper 317/1985, and (b) Chapter 2 of the Standing Committee’s Annual Report 1986-87.

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• goes beyond the mere filling of details; or • deals with matters which are not in principle suitable to be dealt with otherwise than by

parliamentary enactment. 2.9. These three sets of guidelines broadly reflect the traditional distinction between primary and other forms of legislation but are too vague in their present form to provide a reliable guide.

Application of the guidelines

2.10. Examination of the practices actually followed in the application of these various guidelines reveals considerable discrepancies in the nature of the rules implemented through primary and delegated legislation respectively. The point may be illustrated by comparing legislation administered by the Department of Social Security and the Civil Aviation Authority. The Social Security Act 1991 sets out fully the decision-making criteria for the grant or refusal of benefits in some 1 364 sections. By contrast, the regulatory provisions of the Civil Aviation Act 1988 are in effect only a shell, containing less than twenty sections. The Act is supplemented by nearly 400 regulations, some 20 000 pages of Civil Aviation Orders and thirteen other forms of delegated legislative instruments. 2.11. The inference from these and other examples is that the division of content between primary and secondary legislation does not presently follow standard criteria but is often haphazard, depending on such factors as the legislative history of the scheme in question. 2.12. This conclusion received support and some explanation in a submission from the Office of Parliamentary Counsel (`OPC’). OPC drew attention to evidence that agencies stray in both directions from the basic distinction between primary and delegated legislation in giving drafting instructions for new legislation. Some of the reasons it identified for the inclusion of excessive detail in Acts were: • in cases where the Act and regulations must commence together, it may be seen to be

quicker to put the detail in the Act; • for political reasons the detail has been thought more likely to be accepted as part of a

Bill than as regulations promulgated later; • after the use of the disallowance power to defeat the Australia Card scheme, some

departments have expressly asked for detail to be put in Acts so that it does not run the risk of disallowance; and

• some details, for example, transitional provisions affecting conditions of service have been regarded as too sensitive to be entrusted to regulations.

2.13. On the other hand, reasons given by OPC why substantial matters of principle have appeared in regulations were: • there was not enough time to include all matters of substance in the Act; the subject

matter was too large to cover in the Act; • there was need for flexibility to change the regulations quickly to meet changing

circumstances; or • the necessary policy decisions were not made by the time the Bill had to be introduced

into the Parliament.

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Proposed criteria

2.14. While the Council accepts that it will not be possible to develop criteria to guide law makers with precision for all occasions, it considers that efforts should be made to develop a distinction which is as clear as possible. In the Council’s view, refined criteria should be set out in the form of administrative guidelines in the Legislation Handbook. If possible, there should be a greater degree of consistency between these and the parliamentary standards. 2.15. The following criteria are suggested as the basis for a more useful distinction between primary and delegated legislation. A theme common to most of them is the presence or absence of significant policy. While implementation of significant policy is suggested as a separate criterion, the Council recognises that it underlies other specific criteria as well. Questions of policy 2.16. Where the substance of a proposed new rule involves a significant question of policy, including the introduction of new policy or a fundamental change to existing policy, the change should be accomplished by an Act of Parliament. Lesser details may be spelt out in delegated legislation, although all essential elements of a legislative scheme should be contained in the Act. 2.17. Commonwealth employees’ compensation provides a useful model. The Guide to the Assessment of the Degree of Permanent Impairment is made under the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 and is used to assess the level of disability for the purposes of Commonwealth employees’ compensation. The primary legislation establishes the policy that a benefit will be paid where a disability is suffered. It also establishes a minimum level of disability before the benefit is paid. Provision is made for the tabling of the Guide, and the disallowance provisions in Part XII of the Acts Interpretation Act are applied. The Guide is a complex document inappropriate for an Act of Parliament but the statement of policy under which the Guide operates is spelt out in the Act. 2.18. During its public consultations, the Council heard complaints, mainly from the business sector, that too often all significant elements are not included in the primary enactment. The result is that the business sector must wait until the delegated legislation is made before the full impact of the entire regulatory scheme is known. A recent example of this was the Therapeutic Goods Act 1989. In this instance, the Senate was concerned that the Bill did not contain sufficient information to enable a person seeking to establish the state of the law to arrive at a clear understanding of the scheme. In consequence, the Senate amended the Bill to delay the date of operation of the Act until the making of the regulations. Rights and liberties 2.19. Laws which have a significant impact on individual rights and liberties should be enacted in primary legislation. Examples of measures which affect rights and liberties and might not be covered by other criteria suggested by the Council include powers of arrest, entry, search, seizure and forfeiture. 2.20. The Council is aware that there are instances where powers of arrest, entry and search are found in delegated legislation. Nevertheless, it remains of the view that delegated legislation should not be used for the implementation of rules of this kind. In exceptional cases, where delegated legislation is used for this purpose, there should be clear and specific authorisation in the enabling Act.

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Offence and penalty provisions 2.21. Rules which create serious offences should be laid down in Acts of Parliament. The Attorney-General’s Department suggested in its submission that serious offences might be defined as those involving imprisonment or fines of more than $1 000 (more than $5 000 for corporations). The Council accepts this definition. It follows that, in the Council’s view, where Parliament delegates power to create an offence and/or set penalties, the empowering statute should set clear limits on the exercise of the power, including monetary limits. If departures are necessary in exceptional circumstances they should be justified at the point of the drafting of the enabling provision and to Parliament in the explanatory memorandum. 2.22. On occasion, offence provisions allow for variations of the ambit or application of the offence as a means of providing for unforeseen eventualities. For example, a principal Act may create an offence proscribing the use of certain equipment leaving it to delegated legislation to specify exactly the type of equipment proscribed. As technology changes, the administering agency is therefore able to respond quickly by adjusting the list of proscribed equipment. The Council again believes that variations of this nature by delegated legislation should be subject to clear limitations in the enabling provision, 2.23. As a general rule, the Council considers that administrative penalties for regulatory offences should only be imposed by Act of Parliament. Administrative penalties are a relatively recent innovation enabling the executive to receive payment of a monetary sum without determination of the issues by a court. Payment of the penalty avoids criminal prosecution. An administrative penalty can operate in a variety of ways, the most common being a set monetary penalty. A penalty can also be calculated by reference to, for example in taxation or customs matters, a factor of the amount avoided. 2.24. The Council understands that the Australian Law Reform Commission is currently examining the whole question of administrative penalties in the context of the customs legislation. Pending the results of that investigation, at least, the Council recommends that administrative penalties should not be included in delegated legislation. Taxation provisions 2.25. Any provision imposing a tax should be contained in an Act of Parliament. Delegated legislative instruments may be used for setting the level of the tax subject to an upper limit prescribed in the Act of Parliament. Fees and charges 2.26. Significant fees and charges should be imposed by primary legislation. Consistently with the Council’s recommendation on provisions creating offences (see paragraph 2.21 above), a significant fee should be defined as one involving payment of more than $1 000. Where power to impose a fee or charge is delegated, the empowering Act should set an upper limit of no more than $1 000 and allow the delegated legislation to operate within it. Appropriation 2.27. Section 83 of the Constitution requires that no money be drawn from the Consolidated Revenue Fund except under appropriation made by law. An appropriation therefore requires a distinct authorisation from Parliament itself. Section 56 of the Constitution provides that a vote, resolution or proposed law for the appropriation of revenue or money shall not be passed unless the purpose of the appropriation has been recommended by message of the Governor-General to the House in which the proposal

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originated. The appropriation of money, therefore, can not be achieved through delegated legislation. 2.28. In its submission to the Council, the Department of Finance stated that provisions dealing with the appropriation of money should as a matter of principle always be included in an Act of Parliament. It would seem that this is also the position as a matter of law.

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Procedural matters 2.29. Where procedural requirements are so significant that they constitute the essence of the legislative scheme, they should be set out in an Act of Parliament. 2.30. Examples of procedural requirements which are essential parts of the legislative scheme are the time limits in section 13 of the Administrative Decisions (Judicial Review) Act 1977. Section 13 of the Act gives a person a right to obtain reasons for a decision of an administrative character. Failure to comply with the time limits in that section, particularly those for requesting or furnishing a statement of reasons, may have serious consequences for an applicant, including placing in jeopardy any opportunity for judicial review of the decision in question. It is appropriate therefore that these time limits, although essentially procedural matters, should be set out in the Act. 2.31. Provisions that reverse the onus of proof or allow certification of matters that would otherwise have to be proved are other examples of procedural matters which go to the very essence of a scheme and should not be included in delegated legislation. 2.32. An exception to this general rule concerns rules of court which are treated separately in Chapter 9. Amendments to Acts 2.33. The amendment of an Act of Parliament should only be made by another Act of Parliament. As noted earlier (see paragraph 2.7 above), the Senate Standing Committee for the Scrutiny of Bills draws attention to provisions which permit amendment of the empowering Act by delegated legislation. These provisions, called Henry VIII provisions, are defended on the basis that it would be impractical to return to Parliament with changes to the Act that are relatively minor in nature. However, it is clearly inappropriate for a body subordinate to Parliament to amend or alter an Act made by Parliament. This is particularly so when changes affect the essential elements of a scheme, alter the ambit of legislation, place restrictions on rights, or alter obligations. Recommendation 2 The following criteria for the division of content between primary and other forms of legislation should be incorporated into the Legislation Handbook. `The following matters should be implemented only through Acts of Parliament: • significant questions of policy including new policy or fundamental changes to

existing policy; • rules which have a significant impact on individual rights and liberties; • provisions creating offences which impose significant criminal penalties

(imprisonment or fines of more than $1 000 for individuals or more than $5 000 for corporations);

• administrative penalties for regulatory offences; • provisions imposing taxes; • significant fees and charges (more than $1 000); • procedural matters that go to the essence of the legislative scheme; and • amendments to Acts of Parliament.’

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CHAPTER 3

THE AMBIT OF THE LEGISLATIVE INSTRUMENTS ACT 3.1. In Chapter 1, the Council recommended that all delegated instruments of a legislative character should be subject to the same broad regime for making, publication and parliamentary scrutiny irrespective of their class. This chapter examines the manner in which instruments should be brought under the proposed Legislative Instruments Act. A preliminary issue is the definition and characterisation of instruments of this kind.

Characteristics of legislative instruments

3.2. In broad terms, legislative action involves the formulation of general rules of conduct, usually operating prospectively. Executive or administrative action, by contrast, applies general rules to particular cases. 3.3. While this distinction is a useful starting point, it does not hold in all cases. Thus, a recent Act of the Victorian Parliament was directed to `the care or treatment and the management’ of a named individual.1 It was unquestionably legislative in character because it altered pre-existing law. Similarly, executive action may have a wider effect than the particular case for which it was originally made. An example is the power under the Customs Act 1901 to make a Commercial Tariff Concession Order at the request of an importer for a particular act of importation. The order can then be applied to other like cases. 3.4. Three characteristics might be used to distinguish legislative action from executive action - determination of the content of the law; the binding quality of the rules; and the generality of their application. The first is likely to be conclusive. The presence of the second and third in combination is also a very strong indicator that an instrument is legislative in nature. Legislative instruments determine the content of the law 3.5. The first characteristic of a legislative instrument is that it has the effect of changing or determining the content of the law rather than applying the law. In Commonwealth v Grunseit,2 Chief Justice Latham stated:

The general distinction between legislation and the execution of legislation is that legislation determines the content of the law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases.

3.6. The application of this test may vary from one situation to another and there are difficulties where the legislative shades into the administrative. Nonetheless, the distinction remains. Where it can be shown that an instrument will make new law or change existing law rather than simply apply criteria to a set of facts, the instrument is legislative in character.

1 Community Protection Act 1990 (VIC). 2 (1943) 67 CLR 58 at page 82.

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Legislative instruments contain binding rules rather than mere guidelines 3.7. The binding quality of a rule is also an indication of its legislative character. The contrast here is with rules which are not binding in law but which are designed to provide guidance, usually to the way in which a decision-maker may or should act. 3.8. For example, section 11 of the National Food Authority Act 1991 allows the Minister to `give written directions to the [National Food] Authority as to the performance of its functions and the exercise of its powers’ and provides that `the Authority must comply with those directions’. Because the Authority is bound to comply with ministerial directions given under the section, they are legislative in character. The same is true of directions given by the Minister under section 179 of the Migration Act 1958. That section provides that persons or bodies ‘having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions...’. 3.9. Several provisions in the Broadcasting Act 1942 provide a contrast. Section 83D requires the Australian Broadcasting Tribunal to have regard to a range of matters, including government policy statements, when assessing applications for the grant of a remote licence. Section 86F is of the same effect for the renewal of a remote licence and section 89CA for the transfer of a remote licence. The wording of these provisions suggests that they are not intended to create binding rules of conduct but merely to require decision-makers to have regard to the government policy statement. A government policy statement made under one of these provisions would be used for structuring the exercise of a discretion. It may well be that the effect of such an instrument will often be the same, from the standpoint of individuals, as an instrument that has a more binding quality. Nonetheless, government policy statements of this type are not legislative in character. Legislative instruments usually have general application 3.10. The third characteristic is whether the instrument is one of general application or applies only in a particular case. Thus in Minister for Industry and Commerce v Tooheys Ltd,3 the Full Court of the Federal Court said:

The distinction [between legislative and administrative acts] is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases.

3.11. As was pointed out earlier, this distinction does not hold for all cases. Nor has the outcome in the courts, applying this test, always been consistent.4

Ambit of the Act

3.12. The object of the Legislative Instruments Act proposed in this report is to apply the same broad regime for making, publication and parliamentary scrutiny to all instruments that are legislative in character. As indicated in Chapter 1, the Council has decided that the proposed Legislative Instruments Act should apply to all delegated instruments of a legislative character (see paragraph 1.28). In reaching this conclusion, the Council considered three broad options for bringing instruments of a legislative character within the ambit of the Act: • the Act might identify instruments by class or maker; 3 (1982) 42 ALR 260 at page 265. 4 See for example, de Smith, Judicial Review of Administrative Action, 4th 3d. 1980, at page 69 and the cases cited Arnold v Hunt (1943) 67 CLR 429 and Arthur Yates and Co Pty Ltd v Vegetable Seeds Committee (1946) 72 CLR 37.

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• the Act might apply only to those instruments which are expressly subjected to it; or • the Act might apply to all instruments of a legislative character unless expressly excluded

from it. Identification of instruments by class or maker 3.13. Under the first option, the Act would state that all instruments in a particular class or made by a particular official are to be regarded as legislative instruments. As an optional extra a discretion to bring other instruments within the ambit of the Act might also be provided. This approach is adopted in Victoria, although the Council understands this discretion is rarely used.5 3.14. The major disadvantage of this option is that it perpetuates reliance on nomenclature as the principal method of bringing instruments within the ambit of the Act. The coverage of the Act will inevitably be incomplete and it is likely that many instruments will fail to be included in it. For these reasons, the Council does not recommend adoption of this approach. Instruments expressly subjected to the Act 3.15. A second option for bringing instruments within the ambit of the Act would rely upon the enabling provisions in the primary legislation to state whether the Legislative Instruments Act applies. This is the approach adopted under existing arrangements to decide whether an instrument is a disallowable instrument. 3.16. An advantage of this option is that it would be clear which instruments fell within the ambit of the Act. Its disadvantages are manifest, however. Coverage of the Act would be incomplete because Parliamentary Counsel would still be likely to come under pressure from some instructing agencies to decline to designate an instrument as ‘legislative’ or to draft a provision so as to avoid the operation of the Act. It would also be difficult to ensure that legislative instruments made under the authority of other instruments would come within the ambit of the Act. The Council, therefore, does not favour this option. Application to all instruments of a legislative character unless expressly excluded 3.17. Under the third option, which is preferred by the Council, the Legislative Instruments Act would provide that all delegated instruments that are legislative in character would be automatically covered by that Act unless specifically excluded. Agencies would be required to make decisions about exemptions at the time of drafting of the enabling Act. In the absence of an express statutory exemption, any instrument would be covered by the Legislative Instruments Act.

5 The Subordinate Legislation Act 1962 (VIC) defines ‘Statutory Rule’ to mean: (a) any regulation or rule made by the Governor in Council; (b) any regulation made by any body corporate or unincorporate the making of which is subject to the consent or

approval of, or subject to being disallowed by, the Governor in Council; (c) any rule order form scale or regulation which relates to any court or to the procedure practice or costs of any

court; and (d) any instrument of legislative character made pursuant to the provisions of any Act which is an instrument of

a class which has been declared by notice in writing under the hand of the Attorney-General published in the Government Gazette to be statutory rules-

but does not include any regulation or rule that is made by a local authority or by a person or body of person having jurisdiction limited to a district or locality unless it is a statutory rule by virtue of the operation of paragraph (d) of this subsection.

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3.18. The major advantage of this approach is the comprehensive coverage it gives the Legislative Instruments Act and the consequent simplicity of the scheme. 3.19. If an enabling provision expressly excluded the operation of the Legislative Instruments Act, it could be expected that the Senate Standing Committee for the Scrutiny of Bills would look closely at that provision, and agencies might be required to justify their decision to exclude. If not satisfied that the instruments authorised by the Bill warranted exemption, the Parliament could omit the exemption when considering the Bill. 3.20. One potential difficulty could be uncertainty at the margin over whether instruments are legislative or administrative in character. A comparable issue presently arises under the Administrative Decisions (Judicial Review) Act 1977 (‘AD(JR) Act’) which applies to all decisions of an administrative character. The meaning of the term, `administrative character’, has been partly elucidated by case law dealing with the ambit of the AD(JR) Act. By extension that case law has also helped to develop the meaning of the corresponding term ‘legislative character’. 3.21. Under this model, failure to recognise that a particular instrument is legislative and to comply with the procedures of the Legislative Instruments Act where the Act was not expressly excluded would have substantive consequences. Any action taken under the instrument would be rendered ineffective. The instrument would never have commenced operation because it would not have been published in the Legislative Instruments Register.6 3.22. The Council would not expect this difficulty to be significant in practice. In cases of doubt, it is likely that agencies will clarify the status of instruments by exempting them from the Act and justifying the exemption to the Scrutiny of Bills Committee. One justification may be that the agency considers the instrument to be administrative in character and subject to the AD(JR) Act, but that it is seeking exemption from the Legislative Instruments Act to remove any lingering doubt. In making their initial assessment of instruments, agencies would derive guidance from the characteristics of legislation set out earlier in this chapter. In the interests of accessibility those guidelines should be published in the Legislation Handbook. 3.23. The Council favours this option as the mechanism for bringing instruments within the ambit of the Legislative Instruments Act. It will provide a comprehensive and straightforward regime for the making, publication and parliamentary scrutiny of delegated legislative instruments. The Legislative Instruments Act will complement the other central measures of the Commonwealth review system. It will be open to agencies to exclude instruments from the regime where there is doubt about their legislative character or there are good reasons why in any event the regime should not apply. The Council so recommends. Recommendation 3 (1) The Legislative Instruments Act should apply to every delegated instrument that is legislative in character, unless expressly excluded by its enabling provision. (2) The definition of `legislative’ should not be set out in the Act. (3) To assist agencies in deciding whether an instrument is legislative, the essential characteristics of legislative instruments should be set out in the Legislation Handbook.

6 See Chapter 8, paragraphs 8.27-8.29.

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CHAPTER 4

DRAFTING AND PREPARATION OF DELEGATED LEGISLATIVE INSTRUMENTS

Responsibility for drafting

4.1. The quality of and the responsibility for drafting of delegated instruments were issues commonly raised in the submissions and the additional consultations held by the Council throughout the course of this project. The Council takes the view that instruments that are of a legislative kind must meet high drafting standards in presentation, expression and consistency. They should be drafted so that they are clear, concise and unambiguous. 4.2. The Office of Legislative Drafting in the Attorney-General’s Department presently drafts almost all of those instruments that are part of the Statutory Rules Series (mostly regulations). It is also available to advise and ‘settle’ the drafting of other legislative instruments. There is, in addition, a vast array of legislative instruments that are drafted within agencies. 4.3. However, not all drafting of statutory rules is done by the Office of Legislative Drafting. For example, in October 1989 the Civil Aviation Authority was given approval by the Attorney-General’s Department to draft the Civil Aviation Regulations. The Authority set up its own drafting branch with professional drafters from the Office of Parliamentary Counsel and the Attorney-General’s Department. The primary drafting is undertaken by the Authority and the drafts are then sent to the Office of Legislative Drafting for `settling’. The Council understands that this arrangement has proved most satisfactory. 4.4. The Council requested that agencies provide copies of instruments for which the agency was responsible. It received a range of instruments, some prepared by the Office of Legislative Drafting and others prepared by the agencies. An examination of the instruments prepared by the agencies revealed that the standard of drafting varied markedly from agency to agency. 4.5. The submission from the Attorney-General’s Department saw the drafting process as involving a partnership between the drafter and the instructing officer from the sponsoring agency. The drafter contributes drafting skills and may provide legal advice during the course of drafting, while the instructing officer advises on the policy objectives and any background to the subject matter to assist the drafter. 4.6. One objection to the use of professional drafters is that they are not familiar with all areas of human endeavour and, in particular, are not well equipped to draft legislation that involves scientific or other technical matters. However, drafters often play a `devil’s advocate’ role to ensure that the scientific or technical material is legally effective. Thus, it was suggested that the most satisfactory drafts of technical material were often obtained where the technical matters were initially drafted by the sponsoring agency and then settled by the professional drafters.

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4.7. There was some concern that the drafting process through the Attorney-General’s Department was a more cumbersome procedure than when the drafting was done in-house. It was pointed out, however, that the drafting branches of the former Commercial and Drafting Division of the Attorney-General’s Department have now been replaced by the Office of Legislative Drafting. The Council was told that the service offered by that Office has vastly improved and there is also a degree of flexibility in the way the service operates. 4.8. On the other hand, a number of submissions, including that from the Senate Standing Committee on Regulations and Ordinances, suggested that the only way to achieve desirable drafting standards is to have professional drafters responsible for the preparation of all instruments. It was argued that delegated legislative instruments are no less law than Acts of Parliament which are all drafted by professional drafters in the Office of Parliamentary Counsel, generally to a high standard. 4.9. The Council agrees that the standard of delegated legislative instruments should not be less than that for Acts of Parliament. This should be the case whether the instrument is prepared by a drafter in the Attorney-General’s Department or prepared by a drafter in the agency itself. However, having regard to the numbers of instruments involved, while it may be possible to centralise the drafting of Acts of Parliament, it is not so easy to centralise the drafting of delegated legislative instruments. In the 1990 calendar year, for example, there were 144 Commonwealth Acts and 1 424 delegated legislative instruments, of which 474 were statutory rules. 4.10. The Council does not believe that the drafting of all delegated legislative instruments can be centralised in the Office of Legislative Drafting. The resources are not presently available to cope with such a drafting load, although they could be developed in time. Nor is it necessarily desirable that drafting be centralised. Delegated instruments are not uniform. They comprise a diverse range of instruments covering subject matters of widely differing kinds. Their preparation needs an extensive contribution from the agencies themselves. 4.11. However, even if the Office of Legislative Drafting does not itself draft all delegated legislation, the Council is of the view that the Office should be responsible for ensuring that all delegated legislative instruments are prepared to an appropriate standard. This should be a statutory responsibility. Recommendation 4 The Office of Legislative Drafting should be given responsibility under the Legislative Instruments Act for ensuring that delegated legislation is prepared to an appropriate standard.

Arrangements with agencies

4.12. In carrying out its statutory responsibility, the Office of Legislative Drafting may undertake the drafting of instruments itself or allow agencies to prepare instruments. To ensure the instruments meet the required standards, the Office of Legislative Drafting could introduce further settling arrangements, prepare precedents for agencies and undertake officer exchanges for training or special projects. Ultimately, the methods employed by the Office to meet its statutory responsibility would be determined by the Office itself. Obviously, consultation with agencies sponsoring delegated legislation will be necessary and workloads will be a major influence on the methods adopted.

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Recommendation 5 (1) Where an instrument is legislative in character, it should be drafted by the Office of Legislative Drafting or arrangements for drafting should be made with that Office. (2) Better drafting in agencies should be encouraged by: • `settling’ arrangements where the agency undertakes primary drafting and then sends it

to the Office of Legislative Drafting for clearance; • the supply of drafting precedents by the Office of Legislative Drafting; • temporary placement of agency drafters in the Office of Legislative Drafting; and • temporary placement of drafters from the Office of Legislative Drafting in agencies.

Report to Parliament

4.13. The way the Office of Legislative Drafting is to discharge its statutory responsibility would not be set out in the proposed Legislative Instruments Act. However, the Council believes that the Office should prepare a statement at the time each instrument is published in accordance with the Legislative Instruments Act on whether it was drafted: • by the Office of Legislative Drafting; • by the agency and settled by the Office of Legislative Drafting; • following an approved precedent; or • by the agency pursuant to arrangements approved by the Office of Legislative Drafting. 4.14. The statement would not be a detailed document but simply a mechanism to inform the Parliament how an instrument was prepared. It should, therefore, be sent to the Parliament when the instrument is being tabled. In the Council’s view, it would be most efficient to incorporate the statement in the memorandum to be prepared by agencies on the consultation process (recommendation 12 - see paragraph 5.48). Recommendation 6 The memorandum to be prepared in accordance with recommendation 12 should include a statement on how each instrument was prepared, including: • whether the instrument was drafted by the Office of Legislative Drafting; • whether the instrument was drafted by the agency and settled with the Office of

Legislative Drafting; or • whether the instrument was drafted by the agency pursuant to arrangements approved

by the Office of Legislative Drafting.

Rationalising the classes of instruments

4.15. The Council is concerned at the astonishing range of classes of legislative instruments presently in use, apparently without any particular rationale. Attempts have been made in other jurisdictions to standardise the nomenclature for instruments. The Victorian Legal and Constitutional Committee recommended a system involving particular classes of delegated legislation for particular exercises of power.1 The suggested regime was not accepted. 4.16. The even greater array of names in use at the Commonwealth level makes the task of rationalising delegated legislative instruments by name even more daunting. Nevertheless, the Council is strongly of the view that it is possible to reduce the number of categories of instruments and obtain greater consistency in nomenclature.

1 Legal and Constitutional Committee, Report on the Subordinate Legislation (Deregulation) Bill (1984) at page 249.

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4.17. The Council suggests that primary responsibility for this task should be conferred on the Office of Parliamentary Counsel. In consultation with the Office of Legislative Drafting, it should exercise control over terminology used to describe delegated legislation in authorising Acts. The Office of Parliamentary Counsel should develop guidelines and adopt practices that ensure that there are fewer categories and greater consistency in the designation of types of instruments for particular purposes. Recommendation 7 The Office of Parliamentary Counsel, in consultation with the Office of Legislative Drafting, should seek to reduce the number of classes of legislative instruments authorised by statute and to establish consistency in nomenclature. 4.18. To assist in changing the general culture in this area, the Council suggests that the word `rule’ should be used in the Legislative Instruments Act to describe all instruments falling within the ambit of the Act. A ‘rule’ should then be defined in the interpretation provisions as any delegated instrument which is legislative in character. Using this term in the Act in this way will enable it to gain wide acceptance over time as the appropriate description for delegated legislative instruments. Recommendation 8 (1) The Legislative Instruments Act should apply to all `rules’. A `rule’ should be defined in the Act as any delegated instrument which is legislative in character. (2) The word `rule’ should be used generally in this and other Acts to describe any delegated legislative instrument.

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CHAPTER 5

CONSULTATION Introduction

5.1. Any new law, whether an Act of Parliament or other form of legislation, is improved by obtaining a variety of views, especially from members of the community likely to be affected by it. 5.2. Moreover, consultation prior to law making is consistent with the principles of procedural fairness as it enables individuals and groups with a particular interest to put their views. It serves the public interest by enabling decisions to be made in the light of competing interests and requires government to account for its proposals. In the final analysis, rules made following consultation are likely to be more considered and better for having been exposed to the community before being made. 5.3. Mandatory consultation, at least for significant rules, is particularly important for delegated legislation, in the absence of the opportunity which the parliamentary legislative process provides for contrary views to be put publicly. Accordingly, in recent years several other Australian jurisdictions have adopted requirements for mandatory consultation prior to the making of some delegated legislative instruments. 5.4. This chapter discusses the existing requirements for consultation prior to the making of delegated legislation at the Commonwealth level and then examines the procedures that have been adopted in Victoria and New South Wales. Against this background, recommendations are made for significant changes to the procedures followed by Commonwealth agencies in making delegated legislation to allow greater public contribution to its content.

Consultation in the early period of Federation

5.5. Consultation on delegated legislation is not a new phenomenon in the Commonwealth sphere. Soon after Federation, the Commonwealth Parliament passed the Rules Publication Act 1903. Section 3 required sixty days notice to be given of the intention to make a statutory rule and copies of a draft of the rule to be available to the public. Any person was entitled to make representations or suggestions to the authority proposing to make the rule and these were to be taken into consideration by the authority before finally settling the rule. 5.6. This section was repealed in 1916 because of little apparent public interest. However, the volume and nature of delegated instruments today is very different and the Council considers it likely that the public would avail itself more readily of such a provision.

Current Commonwealth position on consultation

5.7. There is now no general statutory requirement for consultation prior to making Commonwealth delegated legislative instruments, but individual Acts may require some form of consultation. For example, the Australian Broadcasting Tribunal is required to conduct a full inquiry with public notice, and may conduct hearings, before making

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significant rules such as program standards.1 Zoning plans for the Great Barrier Reef Marine Park require consultation with ‘interested persons’.2 Often consultation is required only with sectional interests. For example, some primary industry legislation requires consultation with producers’ representatives before regulations are made. 5.8. Other agencies carry out a form of mandatory consultation in the sense that representatives of organisations likely to be affected by legislative instruments are appointed as members of the agency board. There are, for example, employer and employee representatives on the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees and a wide range of groups are represented on the National Occupational Health and Safety Commission. 5.9. Most agencies in submissions to the Council claimed that, even where not obliged by law to do so, they consulted extensively with identified interest groups. The Council has no reason to doubt that such consultation often occurs. In practice, however, in the absence of a more general requirement, consultation tends to take place with sectional interests. Probably also, in these circumstances, agencies will hear what they want to hear from the bodies they choose to consult. It is for reasons of this kind that Victoria and New South Wales adopted general requirements for public consultation before making delegated legislation.

Consultation in Victoria

5.10. Comprehensive procedures exist in Victoria for public consultation on delegated legislation as defined by the Subordinate Legislation Act 1962 (Vic) made after 1 July 1985. 5.11. Consultation is carried out in conjunction with the publication of a regulatory impact statement which must be prepared where the proposed statutory rule would impose an appreciable burden, cost or disadvantage on any sector of the public. These include financial, economic and social burdens, costs, and disadvantages, whether tangible or intangible. 5.12. The procedure for consultation involves: • publication of a notice in the Victorian Government Gazette, a daily newspaper and,

where appropriate, a relevant trade, professional, business or public interest journal stating:

- the reasons for the proposed rule and the objective to be achieved; - the results of the impact statement; and - where copies of the impact statement may be obtained;

• provision of comments and submissions within such time, not being less than twenty-one days, as is set out in the notice;

• ministerial responsibility for consideration of the comments and submissions which are then to be forwarded together with the regulatory impact statement to the Legal and Constitutional Committee of the Victorian Parliament and the Department of Small Business;

• examination of the impact statement by the Regulation Review Branch, Department of Small Business, to determine whether it adequately assesses the likely impact of the proposed rule; and

1 Section 17A of the Broadcasting Act 1942. 2 Section 32 of the Great Barrier Reef Marine Park Act 1975.

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• submission of the proposed rule to the Governor in Council only if there is a certificate from the Regulation Review Branch.

5.13. A regulatory impact statement is not required: • where the Premier certifies that in the public interest there should be no regulatory

impact statement; • for statutory rules (not imposing a fee) that relate to a court or to the procedure, practice

or costs of a court or tribunal; • for fee increases in connection with the State Budget and prescribed by amendment to a

statutory rule that was made within the preceding ten years; • for statutory rules required to be made under the Cooperative Companies and Securities

Scheme; • for re-made statutory rules or consolidated rules first made no more than ten years

previously where they are not being substantially amended; and • for statutory rules which prescribe an equalisation factor for the purposes of the Land Tax

Act 1958 (Vic). 5.14. In addition to these exceptions, the primary legislation authorising the making of regulations can provide for an exception to the regulatory impact statement process. 5.15. In the view of the Legal and Constitutional Committee these exemptions strike a suitable balance between giving effect to the requirement of public consultation and minimising the burdens placed on agencies in the consultation process. 5.16 The following table gives the Victorian statistics on rule making from 1985 to 1990.

Table 2: Statistics (Subordinate Legislation Act 1962 (Vic)) 1985 1986 1987 1988 Regulatory impact statement 1 (1%) 23 (6%) 62 (15%) 113 (21%) Premier’s Certificate 10 (6%) 31 (8%) 27 (7%) 22 (4%) Exempt court rules 11 (7%) 26 (7%) 22 (5%) 22 (4%) Exempt fee increases 26 (16%) 101 (25%) 114 (28%) 131 (25%) Formal inter-governmental 1 (1%) 16 (4%) 7 (2%) 1 .. agreements Proclamations (s133A - - 3 (1%) 3 (1%) - - Drugs, Poisons & Controlled Substances Act 1981) Other statutory exemptions - - - - 1 .. 1 .. (s63A Food Act 1984) Rules prescribing salaries & 31 (19%) 78 (20%) 44 (11%) 78 (15%) allowances (not imposing an appreciable burden) Other rules not imposing an 71 (44%) 114 (29%) 126 (31%) 158 (30%) appreciable burden Rules that required a 11 (7%) 8 (2%) - - - - regulatory impact statement but did not have one Total 162 400 406 526 Source: Legal and Constitutional Committee, Parliament of Victoria

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* One hundred and sixty-two statutory rules were made after 1 July 1985 and were therefore subject to the requirements of the Subordinate Legislation (Review and Revocation) Act 1984 (Vic).

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Assessment of the Victorian procedures 5.17. The consultation requirements of the Subordinate Legislation Act have been in place since 1985. Initially, the Legal and Constitutional Committee was concerned about instances of agencies failing to prepare a regulatory impact statement when they were required to do so. However, no statutory rule has been disallowed because of the failure to prepare an impact statement since 1986. The focus of the work of the Committee is now aimed at monitoring the extent to which regulatory impact statements adequately explain and justify the need for regulatory change. Where an impact statement does not meet the statutory requirements, the Committee draws the matter to the attention of the relevant Minister. 5.18. The regulatory impact statement procedure has had critics, particularly in the public service on which the burden of preparing the impact statement falls. Complaints have been made that the requirements are unduly onerous and costly and do not yield benefits commensurate with the cost of compliance. The process is said to be cumbersome and to impede the efficient operation of government by slowing the process for the making of necessary statutory rules. Some have complained that the criterion for the application of the regulatory impact statement, the appreciable burden, cost or disadvantage test, is too vague and agencies cannot predict when an impact statement is required. Agencies say that, on occasions, they have prepared impact statements when they were not required to do so. Agencies also assert that the response from the public is so limited on occasions that the expense of an impact statement is not justified. 5.19. The Legal and Constitutional Committee advised that at this stage there is little definitive evidence to support assertions of this kind. On the available information, the cost of preparing an impact statement varies according to the importance of the proposal. As might be expected, an impact statement for a major statutory rule which is the result of a marked change in government policy takes longer to prepare and is a more extensive document than that for a small, but nonetheless significant, change in government policy. The consultation process will take longer and be a more expensive process. Some agencies also put greater effort into the preparation of impact statements than others. 5.20. As shown in Table 2, however, in 1989 and 1990 only 10-12 per cent of statutory rules required a regulatory impact statement. The Committee has told the Council that this percentage is likely to be indicative of the future level of regulatory impact statements. 5.21. The main advantage of the impact statement process is that the rule that emerges at the end of the process is a better rule. The Legal and Constitutional Committee advised the Council that a significant number of proposed rules are altered following the consultation process. The comments result in clarification of the rule but the greatest benefit is that the rule is exposed to interested groups with different points of view. 5.22. On some occasions the impact statement process may result in the statutory rule not being made at all. The Regulation Review Branch advised that some 15 per cent to 20 per cent of proposals for rules do not proceed because they cannot be justified. 5.23. In summary, the Victorian procedures have gained acceptance and agencies are now working with the process rather than against it. While there appear to be many benefits from the process, the lack of hard statistical information makes any assessment somewhat subjective. Nonetheless, the Council is impressed with the overall approach to rule making in Victoria.

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Consultation in New South Wales

5.24. The Subordinate Legislation Act 1989 (NSW) sets out the requirements for the making of statutory rules in New South Wales. These requirements came into operation on 1 July 1990. A regulatory impact statement is required for each principal statutory rule unless it is expressly excluded by the Act or it falls within the list of exemptions in schedule 4 (see paragraph 5.25 below). The making of an impact statement requires the responsible Minister to ensure the following procedures are complied with: • publication of a notice in the New South Wales Gazette and in a State daily newspaper

and, where appropriate, in a relevant trade, professional, business or public interest journal or similar publication:

- stating the objects of the proposed rule; - advising where a copy of the impact statement may be obtained or inspected; - advising where a copy of the proposed rule may be obtained or inspected; and - inviting comment and submissions within a specified time being not less than

twenty-one days from the date of the notice; • consultation with affected parties before the making of the statutory rule; and • consideration of all comments and submissions received. 5.25. All written comments and submissions, together with a copy of the regulatory impact statement, are then forwarded to the Regulation Review Committee of the NSW Parliament. The Subordinate Legislation Act 1989 (NSW) provides for exemptions from the entire operation of the Act (schedule 4) and also provides for certain exemptions from regulatory impact statement requirements where: • the responsible Minister certifies that, on the advice of the Attorney-General or

Parliamentary Counsel, the statutory rule relates to: - matters of a machinery nature; - direct amendments or repeals, savings or transitional provisions; - NSW legislation that is part of a uniform Commonwealth-State scheme of

legislation; or - international or Australian standards or codes of practice where a cost benefit

assessment has already been made; • the Attorney-General certifies that the public interest requires that a regulatory impact

statement should not be made; or • the responsible Minister certifies that the proposed rule is to be made by a statutory

agency and in the circumstances it is not practicable to comply with the regulatory impact statement requirement.

5.26. The experience with regulatory impact statements in New South Wales is limited because to date the making of regulatory impact statements has been mostly confined to those statutory rules covered by the first part of the staged repeal of delegated legislation in that State (see paragraph 7.4). It has been suggested by some people that the requirement for such statements and the associated scrutiny may discourage the use of regulations and matter that should be in regulations may be put into an Act or relegated to an administrative instrument. As noted later in this report at paragraph 7.5, the re-making of a large number of statutory rules immediately before the impact statement requirements came into operation on 1 July 1990 has maximised the time before an impact statement is required. The Regulation Review Committee reports that this ‘small victory for Sir Humphrey’ has been partly reversed by an undertaking from the Premier, yet to be met by the agencies involved,

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that those agencies will nevertheless be required to make a regulatory impact statement. In the short term, however, this action has further delayed any experience in New South Wales with impact statements.

A new consultation regime for the Commonwealth

5.27. The submissions to the Council from agencies argued against the establishment of formal consultation arrangements in statutory form. It was claimed that the present arrangements for consultation were sufficient. Agencies argued that because of current informal practices, general consultation requirements enshrined in statute would be counterproductive. Any formal requirements to consult would be resource intensive and the benefits of consultation would not outweigh the costs. 5.28. The Council, however, has come to the view that there should be statutory provision for consultation. In most cases under present arrangements there is no guarantee of an opportunity for all interested parties to participate in an agency’s rule making activities. Informal mechanisms tend to depend on the sponsoring agency contacting known groups. This runs the risk of `captured consultation’. The groups known to the agency expect to be consulted and the agency will anticipate and seek their responses. Both parties develop an expectation about being consulted and the likely content of that consultation. Other points of view, however legitimate, are excluded by these arrangements. 5.29. Evidence from Victoria suggests that the cost burdens are offset by better instruments. In any case, if the consultation ,under current arrangements is as wide as agencies assert, a requirement to consult will in many ways be formalising the existing arrangements. 5.30. The Council, therefore, considers that the proposed Legislative Instruments Act should provide general consultation requirements for the making of all delegated legislative instruments.

Exceptions to the consultation regime

5.31. The Council considers that the exceptions to the consultation requirements should be limited. In Victoria, most exceptions arise because the proposed rule imposes no appreciable burden, cost or disadvantage. Other exceptions relate to budget-linked fee increases, court procedures, Commonwealth-State arrangements, re-made statutory rules and exemptions in specific Acts. In New South Wales, the exceptions cover machinery matters, direct amendments or repeals, savings and transitional provisions, Commonwealth-State arrangements, national or international codes of practice where a cost-benefit analysis has already been done, rules of court and rules made under a number of other Acts of Parliament. There is also a provision in both States for exemption by ministerial certificate. 5.32. In the Council’s view, there should be six exceptions to consultation at the Commonwealth level. Increases or decreases in charges or fees in line with the Budget 5.33. The Budget strategy sets out the financial plan for the nation for a twelve-month period. The strategy contains interlocking parts and should not be disturbed except by further government decision. Any consultation mechanism about fee increases or decreases set by the Budget would be of little benefit. However, where a fee increase or decrease is

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proposed outside the Budget strategy, there seems no reason to provide an exemption from the consultation process. Minor machinery rules 5.34. Consultation on instruments of a minor machinery nature would be of little benefit. The Statutory Rules Series contained 488 instruments in 1991. A preliminary survey of these showed that approximately 188 (39 per cent) contained amendments of a minor machinery nature with about 72 (15 per cent) where it seemed a ‘Rule Making Proposal’ might be warranted. The remaining instruments would not require consultation because they fall into one of the exceptions discussed below. Specifically, the proportion of instruments falling into each exception was: fee increase (26 per cent); alternative scheme of statutory consultation (13 per cent); public interest (3 per cent); advance notice (3 per cent); and rules of court (2 per cent). A survey of the disallowable instruments made in 1990 was not possible given the difficulty in gaining access to these instruments. Statutory consultation already required 5.35. Imposing another consultation requirement on agencies where general public consultation procedures are already required by statute would be an additional burden and may not yield any greater benefit provided that the consultation requirements are comparable to those to be specified in the Legislative Instruments Act. The Legislative Instruments Act should provide the minimum standard. Advance notice provides an advantage 5.36. This exception concerns those areas where advance notice of a change to a legislative instrument would enable certain individuals to gain an advantage that would not otherwise accrue. For example, advance notice of taxation changes may enable some individuals to alter their affairs to avoid the impact of the changed rule. Similarly, in the area of migration, the Government may not always wish it known that changes to visa or entry permits are to be made. This exception would allow agencies to bypass the consultation process in these limited circumstances. Higher public interest 5.37. The next exception should be where the public interest in not having consultation is greater than the public interest in exposing the proposal to the community generally. This should be determined by way of a certificate from the Attorney-General. As delegated legislation is supposed to serve only a detail-filling function, the occasions when a certificate would be warranted should be infrequent. Examples of recent delegated legislation that might have warranted such a certificate are the regulations promulgated at the outbreak of the Gulf war to prohibit the export of goods to Iraq and Kuwait.3 5.38. To ensure accountability, any certificate granted by the Attorney-General should be tabled in the Parliament at the same time as the instrument is tabled. The certificate should give the reasons for exempting the proposal from consultation and state the grounds of public interest relied upon. Dissatisfaction with the reasons given in the certificate may result in disallowance of the instrument. Public interest and rules of court 5.39. The final exception concerns the making of some rules of court. In Chapter 9 of this report, the Council recommends that rules of court should be covered by the regime

3 Customs (Prohibited Exports) Regulations (Amendment), Statutory Rule No. 24 of 1991.

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provided by the Legislative Instruments Act. Under this regime, consultation would not be necessary where the Attorney-General certifies that the public interest requires that consultation should not take place, subject to reasons being provided to Parliament (see paragraph 5.37 above). The Council proposes a variation of this exemption for the courts. In cases where a court decides that the public interest so requires, consultation need not be undertaken. However, in the few cases where this might be necessary, the court should be required to explain its reasons and the grounds of public interest relied upon in its Annual Report to the Parliament. Recommendation 9 The Legislative Instruments Act should provide for mandatory public consultation before any delegated legislative instrument is made, subject to the following exceptions: • where the instrument provides for an increase or decrease in fees or charges and the

increase or decrease does not exceed the amount set by the Budget; • where the instrument is of a minor machinery nature, including savings and

transitional provisions, and it does not fundamentally alter the existing arrangements; • where the Attorney-General certifies that an Act empowering the making of delegated

legislation provides for consultation comparable to that required by the Legislative Instruments Act;

• where advance notice of a particular legislative rule would enable individuals to gain advantage that would otherwise not accrue;

• where the Attorney-General certifies that the public interest requires that consultation should not be undertaken in a particular case. Any certificate so issued should be tabled in the Parliament with the instrument and should state the grounds of public interest relied on; and

• where the instrument contains rules of court which in accordance with recommendation 30 the court has determined in the public interest should be made without consultation.

Second round consultation

5.40. Agencies should not be required to undertake `second round’ consultation, although on occasion in practice they may decide to do so. The Victorian Legal and Constitutional Committee drew attention to this issue which arises where an instrument is substantially redrafted after initial consultation. Some have argued that there should be another round of consultation because the instrument has changed so much that it can be considered a new instrument. The difficulty, of course, becomes one of definition. How much should an instrument change before it is considered to be a new instrument? The danger is that it can result in endless redrafting and consultation, with the process becoming circular. 5.41. A principal function of the consultation process is to allow all interested parties the opportunity to put forward views on proposed legislation. It is to be expected that some views will be taken up in a redraft of the legislation and others not. The parliamentary disallowance mechanism is available to deal with any concern that consultation has been a sham (see recommendation 18). If the agency sees benefit in further consultation, it may do so. However, the Council considers that to avoid the problem of circularity, only ‘first round’ consultation should be required. Recommendation 10 The Legislative Instruments Act should require agencies to undertake `first round’ consultation only. Any further consultation should be at the discretion of the agency.

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Procedure for consultation

Notification 5.42. The first step in the consultation process should be public notification of a proposal to make a legislative instrument or substantially amend an existing instrument. Notification should appear in at least one national daily newspaper and any appropriate trade or professional journals. Depending on the proposal, other forms of publication may be appropriate. For example, the making or amendment of a plan of management for a particular fishery may also require a notice in a newspaper circulating in the locality of the fishery. 5.43. The purpose of the notice would be to advise interested parties that it is proposed to make or amend an instrument. The notice should, therefore, state where copies of the draft instrument and any other relevant documents may be obtained, advise the procedure for consultation and whether there will be any open hearings, provide an address where written comments may be sent, and state the time limit within which the comments must be made. ‘Rule Making Proposal’ 5.44. As part of the consultation process there should be available a document that explains the proposed rule and includes a draft of it. In Victoria and New South Wales the regulatory impact statement fulfills this function. However, to avoid confusion with the present Commonwealth regulation impact statement4, the Council considers that the Commonwealth document should be called a ‘Rule Making Proposal’. 5.45. The ‘Rule Making Proposal’ should be in two parts. The first should contain a clear and concise explanation of the content of the proposed instrument and what it is intended to achieve. It would also need to address the policy issues including any change in policy that will be effected by the making of the instrument. Where the proposed instrument is to be made by the Governor-General, this part of the document could become the explanatory memorandum for Executive Council. 5.46. Part two of the ‘Rule Making Proposal’ should analyse the proposal. This would involve a statement of the methods available to achieve the desired goal, including whether it could be achieved by non-regulatory means. Where possible, the analysis would also involve an estimate of the costs of the proposal in both economic and social terms. The benefits and advantages of the preferred approach should be considered and compared with those for other options. The method of analysis would be a matter for the agency and would be open to scrutiny in the consultation process. Form of consultation 5.47. The method of consultation itself would be a matter for the agency and would depend on the complexity of the proposal. The minimum requirement should be that the agency will accept written submissions, with a minimum period of twenty-one days being allowed for the making of submissions. A longer period should be provided for more complex proposals. More controversial or sensitive proposals should be the subject of open consultation with public hearings.

4 Agencies may be required by the Office of Regulation Review to draft a regulation impact statement for the Government when proposals for new, or changes to existing, business regulations are being considered.

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Memorandum to Parliament 5.48. Agencies should be required to indicate the consultation procedures that were followed for each legislative instrument in a memorandum to the Parliament. That memorandum should also contain a copy of the `Rule Making Proposal’. The memorandum should be sent to the Parliament at the same time that the legislative instrument is sent for tabling and include a statement on drafting prepared by the Office of Legislative Drafting (recommendation 6). Recommendation 11 Under the Legislative Instruments Act, the procedure for consultation prior to the making of a legislative instrument should be as follows: • notification of intention to make the instrument by advertisement in appropriate

national daily newspapers and, where appropriate, trade or professional and local journals;

• publication of a draft instrument accompanied by a `Rule Making Proposal’; • the `Rule Making Proposal’ would contain two parts:

- part 1 would summarise the proposal and contain a statement of its objectives; - part 2 would

- analyse the alternative ways of achieving the proposal, including whether it can be achieved by non-regulatory means;

- provide an estimated cost of the proposal, covering both the financial and social costs and the benefits to government and the affected public, and of its alternatives; and

- set out the reasons for the preferred approach; • any person to be given at least twenty-one days in which to make a submission; • public hearings to be held for controversial or sensitive proposals; and • agencies to be required to take all submissions into account. Recommendation 12 (1) Under the Legislative Instruments Act, agencies should be required to prepare a memorandum setting out the consultation procedures followed for the legislative instrument, attaching a copy of the `Rule Making Proposal’ and including a statement on drafting prepared by the Office of Legislative Drafting in accordance with recommendation 6. (2) Where consultation was not undertaken as required by the Legislative Instruments Act, the memorandum should state the reasons for not so consulting. (3) Where an instrument is exempt from consultation under recommendation 9, this should be stated in the memorandum. (4) The Office of Legislative Drafting should be required to send the memorandum to the Parliament when the instrument is forwarded for tabling.

‘Macklin’ clauses

5.49. A ‘Macklin’ clause is a provision inserted into an Act of Parliament to ensure that where any provision of the Act has not commenced operation within a prescribed time, usually six months, after Royal assent, that provision automatically commences six months from assent. The clause is a mechanism to prevent lengthy delays in the commencement of enactments and is named after the Senator who originally introduced the device.

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5.50. Six-month ‘Macklin’ clauses may cause some problems for preparation of delegated legislation where consultation is required. The Office of Legislative Drafting does not commence any serious drafting of delegated legislation until the Act has been passed by Parliament. Bills may be amended in their passage through Parliament and it is a more efficient management of resources to wait until their final form is settled before commencing drafting of the delegated legislation. However, when the Act contains a ‘Macklin’ clause, the delegated legislation which may be required for the operation of the entire legislative scheme, must be drafted within six months. With the added requirement for consultation proposed in this report, this would pose significant strains on the Office of Legislative Drafting. 5.51. Where delegated legislation is an integral part of the overall legislative scheme, the use of a six-month ‘Macklin’ clause may well be counterproductive. It is often not possible to gain a clear picture of a legislative scheme until all elements, including delegated legislation, are known. Completing a complex scheme of delegated legislation, including consultation, within six months often would result in rushed and poorly thought out legislation. 5.52. The Council therefore believes that in many instances six-month ‘Macklin’ clauses will be inappropriate. Commencement provisions must be set to allow significant instruments of delegated legislation to be the subject of public consultation. The length of time required for the preparation of any delegated legislation should be considered when the Bill is being drafted and the period set accordingly. Where the period is longer than six months, reasons should be provided in the explanatory memorandum accompanying the Bill. Recommendation 13 The length of time set in ‘Macklin’ clauses for commencement of legislation should allow for adequate public consultation for delegated legislation.

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CHAPTER 6

SCRUTINY OF LEGISLATIVE INSTRUMENTS

Introduction

6.1. It has long been accepted that as a matter of constitutional principle delegated legislation should be tabled in each House of the Parliament and may be disallowed by either House1. The recommendations in this report would retain this procedure and apply it to all instruments that are legislative in character. 6.2. This chapter considers: • the instruments which should be subject to scrutiny; • the nature of parliamentary scrutiny and control; • the role of the Senate Standing Committee on Regulations and Ordinances; • the procedures followed in parliamentary scrutiny; and • the implications for documents incorporated into delegated legislation by reference.

Instruments to be subject to scrutiny

6.3. Regulations are presently made subject to parliamentary scrutiny by the operation of section 48 of the Acts Interpretation Act 1901. Section 46A of this Act also provides a mechanism for designating other instruments for parliamentary review. Where an enabling law provides that an instrument is a disallowable instrument for the purposes of section 46A, that instrument automatically becomes subject to the scrutiny regime of the Acts Interpretation Act. Section 46A simply provides a shorthand means for achieving this. A third way to subject an instrument to parliamentary scrutiny is through the provisions of the parent Act itself. While section 46A has reduced the incidence of this, there are still some Acts which use this means. 6.4. It is unnecessarily confusing to use different routes to subject delegated legislative instruments to parliamentary review. The Legislative Instruments Act should set out the procedure for parliamentary scrutiny and apply it to all instruments within the ambit of the Act. Recommendation 14 All instruments to which the Legislative Instruments Act applies should be subject to parliamentary scrutiny and control.

Tabling

6.5. The opportunity for scrutiny of delegated legislation by the Parliament is provided by the tabling of instruments in both Houses. This is the current practice for regulations and disallowable instruments. Under the proposed Legislative Instruments Act, the opportunity for scrutiny would be extended to all legislative instruments.

1 Section 6(1) of the Subordinate Legislation Act 1962 (VIC) requires that a disallowance motion must be passed by both Houses of Parliament in Victoria. This requirement is now varied in a number of individual statutes to permit disallowance by either House.

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6.6. Failure to table an instrument within fifteen sitting days under the Acts Interpretation Act means that the instrument ceases to have effect2. This sanction should also be applied by the Legislative Instruments Act, although it will be proposed that the time for tabling be reduced to six sitting days (see paragraph 6.35). 6.7. Under existing arrangements, the Office of Legislative Drafting delivers instruments in the Statutory Rules Series to the Parliamentary Tabling Offices. The sponsoring agency is responsible for tabling any other instruments. On occasion this has caused problems. For example, in Thorpe v Minister for Aboriginal Affairs and Others3, disallowable instruments called Regional Council Election Rules under the Aboriginal and Torres Strait Islander Commission Act 1989 were tabled in the House of Representatives but not in the Senate. The rules therefore ceased to have effect from the last sitting day on which they should have been tabled in the Senate. 6.8. The Office of Legislative Drafting currently maintains a register of statutory rules and external Territories legislation which are delivered to Parliament for tabling. The Council agrees with the suggestion of the Attorney-General’s Department that the function of sending delegated legislative instruments to the Tabling Offices should be centralised to avoid the difficulty that arose with the Regional Council Election Rules. Recommendation 15 (1) All instruments to which the Legislative Instruments Act applies should be subject to tabling in Parliament. An instrument which is not tabled within six sitting days should cease to have effect. (2) The Office of Legislative Drafting should be required to forward all instruments to which the Legislative Instruments Act applies to the Tabling Offices of Parliament.

Nature of parliamentary control

6.9. Two general mechanisms for the control of delegated legislation are known to the Commonwealth Parliament. The first, and more familiar, is the disallowance procedure exercised by either House. The second requires approval by both Houses. Either can be varied for particular cases. 6.10. Under the disallowance procedure, an instrument once made is effective until it is disallowed. Section 48 of the Commonwealth Acts Interpretation Act provides that regulations take effect from the date of notification in the Gazette, from a specified date or time, or from the date or time of commencement of an Act. They must, however, be tabled within fifteen sitting days after making. Either House of Parliament may then disallow the regulations on a motion that is moved within a further fifteen sitting days. If no such motion is moved, the regulations continue in force. A similar approach is followed in State parliaments, with some variations.4 6.11. Approval also requires the delegated instrument to be laid before each House of Parliament. However, the instrument does not come into operation until a resolution affirming it has been passed by both Houses. This procedure is relatively rare in Australia 2 Section 48(3) of the Acts Interpretation Act 1901. 3 (1990) 97 ALR 543. 4 See endnote 1 above.

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but it is used more frequently in the United Kingdom. An example is provided by the Commonwealth Therapeutic Goods Act 1989 which was prescribed to commence only after the regulations made under the Act were approved in the same form by both Houses of Parliament. 6.12. The disallowance procedure has the advantage that the operation of a legislative instrument is not delayed pending parliamentary approval. This enables the executive to respond quickly to urgent situations and generally allows it to get on with the day-to-day business of government. As Parliament does not sit continuously and has a heavy program, the adoption of an approval procedure would result in extensive delays in the commencement of delegated legislation. 6.13. The Council notes that it is possible for the disallowance procedure to be undermined, if delegated legislation is made during a parliamentary recess, thereby ensuring an extended period of operation of the legislation before it is considered by the Parliament. The fact that the legislation has been in force for some time can also act as a constraint on the members or senators moving its disallowance. 6.14. In the Council’s view, this does not outweigh the problems associated with the approval procedure. In any event, the Council’s proposal (recommendation 19) that the time between the publication and tabling of an instrument be shortened will go some way towards rectifying problems caused by the period of operation of an instrument before it can be considered by the Parliament. Also, it should be noted that it is permissible for any member or senator to table an instrument thereby making it available for scrutiny (see paragraph 6.31). It is not necessary to await government action. 6.15. In view of the practical difficulties mentioned above, the Council is not persuaded that there should be any change in the present procedures. The disallowance procedure should remain the norm. The approval procedure would still be available for use by Parliament if considered desirable in a particular case. Recommendation 16 (1) All instruments to which the Legislative Instruments Act applies should be subject to control by the Parliament. (2) Disallowance by either House of Parliament rather than approval should remain the norm for parliamentary control of delegated legislation and should be prescribed by the Legislative Instruments Act.

Role of the Senate Standing Committee on Regulations and Ordinances

6.16. The existence of a specialist parliamentary committee examining delegated legislation is essential to the effectiveness of the regime proposed in this report. This role is presently performed by the Senate Standing Committee on Regulations and Ordinances. The role of the Committee becomes even more significant under the Council’s recommendations because all delegated legislation within the ambit of the Legislative Instruments Act will come before it. In view of this, there is a question whether the name of the Committee should be changed to reflect its broader role. 6.17. The Council’s Issues Paper queried whether the terms of reference of the Senate Standing Committee on Regulations and Ordinances were broad enough to encompass all

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the grounds on which delegated legislative instruments should be reviewed. The Committee scrutinises delegated legislation to ensure: (a) that it is in accordance with the statute; (b) that it does not trespass unduly on personal rights and liberties; (c) that it does not unduly make the rights and liberties of citizens dependent upon

administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal; and

(d) that it does not contain matter more appropriate for parliamentary enactment. 6.18. Since the Committee was established in 1932, these four terms of reference have been amended on only one occasion. In 1979, principle (c) was altered to reflect the establishment of the Administrative Appeals Tribunal. Although it could be said that the general nature of the terms of reference may create problems for an agency in knowing when the Committee will contemplate disallowance, those agencies that commented on this aspect of the project were generally satisfied with the work of the Committee under the current terms of reference. One exception was the Attorney-General’s Department where concern was expressed about the application of the principles by the Committee in the area of criminal law policy. It was thought that an emphasis on the rights of the individual at the expense of the interests of the community at times limited the effectiveness of law enforcement initiatives. 6.19. In its submission to the Council, the Regulations and Ordinances Committee argued against amendment of its terms of reference. During the Council’s consultations, it was claimed that a change could result in a more restrictive interpretation of the terms of reference. It was suggested that the effectiveness of the Committee may be impaired, even though any rewording of the terms of reference would not reduce the grounds for possible disallowance but simply assist in educating those who have contact with the Committee about its work. It was argued that for those who wish to know more about the grounds for disallowance, especially agencies sponsoring delegated legislative instruments, the Legislative Scrutiny Manual5 provided sufficient explanation. 6.20. The Legislative Scrutiny Manual explains some of the terms of reference in greater depth and expands others simply by way of example from the Committee’s work. This use of examples of previously disallowed instruments provides some assistance to agencies in understanding the Committee’s requirements. However, the Council questions whether this is sufficient to inform agencies adequately and accurately of the standards the Committee sets for delegated legislation. Furthermore, when compared with the terms of reference of scrutiny committees from other jurisdictions, the four principles that comprise the Committee’s terms of reference are stated in language that is very general.6 6.21. The terms of reference of the Senate Committee seem to be broad enough to cover all appropriate bases for disallowance. The Council is concerned, however, that the current wording may not give agencies and members of the public a clear understanding of the grounds for disallowance. A restatement of the wording could serve a useful educative function without either broadening or narrowing the grounds for disallowance. 6.22. On the other hand, the existing system works reasonably well. There may be a risk that in setting out the terms of reference in greater detail the change may be seen as

5 Procedure Office, Department of the Senate, Legislative Scrutiny Manual, February 1989. 6 See Appendix 3.

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narrowing the grounds for disallowance when the intention of the change was merely educative. Nonetheless, when balancing this risk against the opportunity of advance notice of the grounds of disallowance afforded those who deal with the Committee, the weight of argument falls in favour of providing greater detail. Furthermore, having regard to the material in the Legislative Scrutiny Manual and the greater detail in the terms of reference of scrutiny committees in New South Wales, Victoria and the Northern Territory, the Council considers that there is scope for more detail in the terms of reference of the Regulations and Ordinances Committee. Recommendation 17 The Senate should give consideration to elaborating the terms of reference of its Standing Committee on Regulations and Ordinances having regard to the experience set out in the Legislative Scrutiny Manual and the developments in other jurisdictions. Adequacy of consultation 6.23. There is in any event one addition to the Senate Committee’s basis for review of delegated legislation that will have to be made if the recommendations in this report are adopted. The proposed Legislative Instruments Act will contain a requirement for agencies to consult widely in making significant delegated legislative instruments. Failure to comply with this requirement should be grounds for scrutiny and possible disallowance of the instrument by either House of Parliament. The terms of reference of the Senate Committee do not contemplate this at present and the Council considers they should be expanded accordingly. Recommendation 18 The terms of reference of the Senate Standing Committee on Regulations and Ordinances should be expanded to include failure by an agency to consult in accordance with the procedures set out in the Legislative Instruments Act as an additional matter to which the Committee may have regard. Review on policy grounds 6.24. The Council considered whether the terms of reference of the Committee should expressly refer to the substantive merit, or policy, of a delegated instrument. The examination of instruments from a policy viewpoint, however, was generally not favoured in submissions to the Council. Concern was expressed that it could lead to the politicisation of the scrutiny process. It was also pointed out that the success of the Regulations and Ordinances Committee has been the bipartisan nature of its deliberations and an explicit expansion of its role into policy could lead to partisan positions being taken by individual members of the Committee. This would detract from the effectiveness of the review process. 6.25. The same point was made about the Victorian procedures in a submission from the Victorian Parliamentary Legal and Constitutional Committee:

The Committee attributes its ability to scrutinise the subordinate instruments in this way, with a minimum of conflict to the executive, to the bipartisan approach it takes to its scrutiny function. Members deliberately work to exclude party politics from the review of statutory rules. While government policy is noted during the review process, members have not disallowed a statutory rule on the basis of disagreement with government policy, even though some of the grounds for review under s.14 of the Victorian Subordinate Legislation Act would appear to allow the Committee to do so. Members consider it would be inappropriate to review subordinate instruments from a policy perspective.

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6.26. The dividing line between policy and technical considerations in the scrutiny of delegated legislation is not in fact as clear as is here asserted. The inclusion of any provision in a legislative instrument involves a policy decision of some kind. For example, criticism by the Committee of a provision that allowed an official to enter premises without a warrant, is a criticism of the policy to which the provision gives effect. Be that as it may, the Senate Committee and committees from State parliaments regularly deny an interest in government policy when looking at delegated legislation. 6.27. Despite this, the Council acknowledges the importance of the non-partisan operation of the Senate Standing Committee on Regulations and Ordinances. In the Council’s view, no change should be made to its terms of reference in this regard. In any event, the review of delegated legislative instruments from a policy viewpoint is one which is in the hands of the Houses of the Parliament themselves. There are examples of instruments being disallowed on policy grounds without the intervention of the Regulations and Ordinances Committee.

Procedures for scrutiny

6.28. Section 48 of the Acts Interpretation Act 1901 allows fifteen sitting days of each House of the Parliament after the making of a regulation (or any disallowable instrument under section 46A) within which it must be tabled in each House of Parliament. There then is a further fifteen sitting days within which a notice of motion may be given to disallow it. If the notice of motion has not been withdrawn or the motion has not been called on within a further period of fifteen sitting days, the instrument is deemed to be disallowed. 6.29. Some submissions claimed that fifteen sitting days for tabling and up to a further thirty sitting days before a decision is taken on disallowance may be too generous as the actual time for the procedure could take many months. In’ the meantime, an instrument that was a cause of concern could continue to operate. This problem can be further exacerbated by reductions in the number of parliamentary sitting days. 6.30. It is, of course, possible for any member or senator to seek leave to table a delegated instrument and then to move for its disallowance. For example, in December 1989 Senator Patterson sought and was granted leave to table the National Health (Pharmaceutical Benefits) Regulations Amendment. They were subsequently disallowed by the Senate on 22 December 1989. Had they not been tabled before the last sitting day in December, Parliament would have not been able to examine them for a considerable time as it did not resume for some five months due to the election in 1990. 6.31. Without drawing any conclusions about the particular case, the example does illustrate that at the very least senators believe that the executive can manipulate the capacity of the Parliament to review delegated legislation by delaying its tabling. If the legislation were made during a period when the Parliament is sitting, it is possible for a member or senator to table the instrument, if he or she is aware of its existence. If this were not done or if the instrument were made during a recess, it can be many months before the Parliament has the opportunity to scrutinise the instrument. One possibility for rectifying this situation is to shorten the time between making and tabling. Timetable for tabling and disallowance 6.32. The time for tabling and disallowance in all Australian parliaments is shown in Table 3.

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Table 3: Time for Tabling and Disallowance in all Australian Parliaments

State Disallowance Period New South Wales 14 sitting days (Tabling of Notice of Making a Rule) 15 sitting days (Notice of Motion) Victoria 6 sitting days (Tabling) 18 sitting days (Notice of Motion) 12 sitting days (To Deal With Motion) Queensland 14 sitting days (Tabling) 14 sitting days (Notice of Motion) South Australia 14 sitting days (Tabling) 14 sitting days (Notice of Motion) Western Australia 6 sitting days (Tabling) 14 sitting days (Notice of Motion) Tasmania 10 sitting days (Tabling) 15 sitting days (Notice of Motion) Northern Territory 3 sitting days (Tabling) 12 sitting days(Notice of Motion) Australian Capital 15 sitting days (Tabling) Territory 15 sitting days (Notice of Motion) 15 sitting days (To Deal With Motion) Commonwealth 15 sitting days (Tabling) 15 sitting days (Notice of Motion) 15 sitting days (To Deal With Motion) 6.33. It can be seen that the time within which the Commonwealth Parliament must move to disallow an instrument is comparable to that in other parliaments. Given that there is an increasing number of instruments being made which are subject to disallowance, there is not a compelling argument to shorten the period. Instruments may not receive adequate scrutiny if the statutory requirement for disallowance were shortened. The Council concludes therefore that the period for notice of motion to disallow should remain at fifteen sitting days. 6.34. However, the Council is not persuaded that the fifteen sitting day period within which an instrument must be tabled is appropriate. The table shows that the time for tabling varies considerably between jurisdictions but that for the Commonwealth and the ACT, it is the longest. The time was determined in a period when the printing turnaround was slower, but even then it contemplated a very leisurely attitude to informing the Parliament of the making of delegated legislation. Fifteen sitting days can involve a period of three calendar months or possibly longer. There seems to be no practical reason why the Parliament should have to wait so long for an instrument. Indeed, most are currently tabled within a few days

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of making.

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6.35. The Statutory Rules Publication Act requires copies of regulations to be available to the public at the date of notification in the Gazette or as soon as practicable thereafter. There seems to be no reason why a comparable period could not apply to the tabling of instruments in the Parliament. For the purposes of certainty, the Council recommends a maximum of six sitting days within which rules should be tabled in each House. Recommendation 19 The period within which legislative instruments should be tabled in each House of Parliament should be six sitting days from publication in accordance with the Legislative Instruments Act. Standing referral of instruments 6.36. Concern has been expressed that because of the increasing number of delegated instruments being made the scrutiny of those instruments may not be effective. One solution is to have delegated instruments stand referred to the scrutiny committee at any time. Currently, no Australian parliament has a provision of this type. 6.37. The submissions that commented on this issue generally concluded that because of the need for certainty in legislation, it was preferable that there be a fixed period within which disallowance can occur. However, such certainty is in fact illusory as the executive may revoke or amend a legislative instrument at any time. 6.38. The idea of having delegated instruments stand referred at any time, in so far as it is based on the argument of the need to provide more time for review, should not be taken up at this time. For a variety of reasons, including micro-economic and regulatory reform, and the Council’s proposals on consultation, the growth in the number of delegated instruments can be expected to slow down over the next few years. The Council considers that if a legislative instrument is not having its desired effect or is causing unexpected disadvantage, the preferable way for this to be rectified is through action by the sponsoring agency rather than by the use of the somewhat blunt instrument of parliamentary disallowance. Ministerial undertakings 6.39. An interesting feature of the work of the Senate Standing Committee on Regulations and Ordinances is that it is seldom obliged to press any notice of motion for disallowance. Where the Committee has concerns with a particular instrument and notice of motion is given, the concerns are taken up initially with the appropriate Minister. In the majority of cases this results in the Minister giving an undertaking to correct the instrument. Where this is done the Committee will withdraw any notice of motion for disallowance. While this is the usual position, the Committee may pursue an issue through to disallowance if necessary.7 6.40. There are occasions, however, when the undertakings given by a Minister are not carried through, either because of a change in the holder of the office or because outside

7 For example, see the Eighty-Fourth Report of the Committee which describes the action of the Committee to secure the disallowance of the Freedom of Information (Miscellaneous Provisions) Regulations (Amendment) which would have exempted the Australian Bicentennial Authority from the ambit of the Freedom of Information Act 1982.

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circumstances overtake events. It has, therefore, been suggested that the disallowance power should be able to be revived where a ministerial undertaking is not honoured.8 6.41. The Council is of the view that failure to implement ministerial undertakings to the Senate Committee is essentially a political matter for the Committee to resolve. The Council recognises that it may be a source of concern and irritation for the Committee but, nonetheless, it is a matter that goes to the operation of the Committee and not to the formalities of the disallowance power itself.

Deferred disallowance

6.42. An alternative way of enforcing ministerial undertakings is by deferred disallowance. There can also be times when a disallowance motion may not proceed because removal of the offending regulation may affect the overall operation of a legislative scheme. The network of provisions in a delegated legislative instrument and its parent Act may be so interrelated that disallowance of the objectionable provision may create a gap in the scheme, or render it ineffective. 6.43. Rather than allowing the objectionable provision to survive, an alternative which the Council supports would be to proceed with the disallowance motion but defer its effect to allow the sponsoring agency to correct the provision. Six months should be sufficient time for this. Recommendation 20 The Legislative Instruments Act should permit a deferral of the effect of a disallowance motion for up to six months.

Partial disallowance

6.44. Section 48(4) of the Acts Interpretation Act permits a House of Parliament to disallow a single regulation in a set of regulations, but probably not part of that one regulation, that is not a sub-regulation, paragraph, sub-paragraph, item in a schedule, et cetera.9 6.45. In contrast, the Seat of Government (Administration) Act 1910 allows either House of Parliament to disallow an ordinance or regulation made under an ordinance in whole or in part10. Similar powers also exist in other jurisdictions.11 6.46. The Senate Regulations and Ordinances Committee has raised the issue of partial disallowance on a number of occasions. In its Seventy-Third Report (December 1982), the Committee reported discussions with the then Attorney-General where it was proposed to

8 On 9 April 1991, Senator Powell introduced the Acts Interpretation (Ministerial Undertakings) Amendment Bill 1991. This Bill is intended to ensure the prompt implementation of ministerial undertakings using a certification procedure. The Council understands this Bill remains on the notice paper. 9 Thomas Borthwick and Sons (Pacific) Pty Ltd v Kerin and Others (1988) 16 ALD 725 (application for interlocutory relief) and Thomas Borthwick and Sons (Pacific) Pty Ltd v Kerin and Others (1989) 87 ALR 527. 10 Section 12(4) and 12(9) of the Seat of Government Administrative Act 1910. 11 See for example, section 6(2A) of the Subordinate Legislative Act 1962 (VIC), section 42(2) and 42(8) of the Interpretation Act 1984 (WA) and section 41(6) of the Interpretation Act 1987 (NSW).

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amend the Acts Interpretation Act to permit partial disallowance. This was endorsed by the Committee but the proposal has not been taken up.12 6.47. The fact that disallowance is permissible only for a discrete, individually numbered regulation can be used to exert influence not to proceed with a disallowance motion. It is claimed that, for the sake of removing some objectionable provision, much that is good for the community will be lost. On the other hand, it may be said that permitting partial disallowance may result in ambiguities being introduced into an instrument because it may not be realised that the offending part may not be severable from the rest of the instrument. 6.48. The Council is of the view that the complexity of delegated instruments drafted today makes it anachronistic not to permit partial disallowance of such an instrument by either House. The mechanism operates under the Seat of Government (Administration) Act and should also be permitted for all Commonwealth delegated legislation. Recommendation 21 The proposed Legislative Instruments Act should provide for partial disallowance of delegated legislative instruments by either House of Parliament.

Documents incorporated by reference

6.49. Section 49A of the Acts Interpretation Act allows regulations to apply, adopt or incorporate, with or without modification, the provisions of any Act or regulations in force at a particular time or as in force from time to time or any matter contained in any other instrument existing at the time the regulations took effect. The provision does not allow incorporation of material from other documents as they exist from time to time unless the empowering Act expressly permits. 6.50. A type of document commonly incorporated by reference is a code of practice. Section 49A on its current wording will allow the incorporation of a code of practice only as it exists at the time the regulation was made. If the code were subsequently changed, an amendment to the regulations would be required to incorporate the code in its altered form. 6.51. The mechanism in section 49A is designed as a shorthand form for including material that is often of a highly technical nature. It is incorporated by reference simply to avoid rewriting what has already been written. However, the practice of using this mechanism to make rules creates three general problems. 6.52. First, the incorporated document may not be readily available. The regulation that incorporates the other material is published in accordance with the Statutory Rules Publication Act. But incorporated documents, apart from Acts and other regulations, are not required to be made available in this way. The problem can be further exacerbated when changes are made either to the regulation or to the incorporated document. It can be quite difficult to establish the state of the law at a particular time. This problem is dealt with in Chapter 8.

12 On 20 June 1991, Senator Harradine introduced a Bill entitled the Acts Interpretation (Delegated Legislation) Amendment Bill 1991 to provide, among other things, for partial disallowance of delegated legislation. The Council understands the Bill has not yet been debated.

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6.53. The second problem is that where the incorporated material is not an Act of Parliament or a regulation the Parliament does not examine it. In effect, this means that material that is part of the law escapes parliamentary scrutiny. This raises problems concerning the standard of the instrument and the fact that laws are being made without any reference to Parliament. 6.54. The third problem, related to the second, is that the precise effect of the incorporated material is not always clear. Where the incorporated material is not prepared by a skilled drafter, it can give rise to an instrument that is ambiguous and unclear in its effect. If the incorporated material has the status of being part of the law, it should be expressed as clearly and with as much precision as possible.

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6.55. Codes of practice have recently been the subject of a report by the Law Reform Commission of Victoria which recommended that codes or other documents that are given legal effect by subordinate legislation should be tabled in Parliament and subject to disallowance. It also recommended that up-to-date copies be available with the adopting legislation.13 6.56. The Council believes that similar requirements should exist at the Commonwealth level. Where a delegated legislative instrument incorporates material by reference to another document, the incorporated material should be tabled in Parliament with the legislative instrument. The Parliament would not have power to disallow the incorporated material unless it had been made in the exercise of a delegated legislative power. However, if dissatisfied with the content, the Parliament may wish to disallow the provision that provides for its incorporation. Provision should also be made for the Parliament to scrutinise the incorporated material to determine whether all or part of the material is more appropriate for inclusion in the text of the legislative instrument than simply being incorporated by reference. Recommendation 22 (1) The Legislative Instruments Act should require the text of any document applied, adopted or incorporated by reference to be tabled with the delegated legislation. Failure to table the incorporated document with the legislative instrument should mean that the incorporating provision should cease to have effect. (2) The document that is applied, adopted or incorporated by reference should be scrutinised to allow the Parliament to determine whether the provision allowing for the application, adoption or incorporation should be disallowed.

13 Law Reform Commission of Victoria, Codes of Practice, Report No. 39, July 1991.

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CHAPTER 7

SUNSETTING OF DELEGATED LEGISLATION Introduction

7.1. All legislation needs to be periodically reviewed to ensure that it is still achieving its aims and that it has not become outdated. ‘Sunsetting’ is the practice of providing for legislation to cease to have effect on a specified day or after it has been in force for a designated period of time. 7.2. Primary legislation may be reviewed through the normal parliamentary process1. The procedures for the making and supervision of delegated legislation currently do not contain a mechanism to ensure that it is kept up to date. The numbers of delegated instruments made annually2 mean that, without a means to review the instruments, they can quickly become outdated. 7.3. Four jurisdictions in Australia, New South Wales, Victoria, Queensland and South Australia, have responded to this by introducing legislation for general sunsetting of delegated legislation. Queensland and South Australia introduced a seven-year sunsetting period in 1986 and 1987 respectively as part of a general microeconomic reform process3. New South Wales and Victoria introduced sunsetting in 1990 and 1985 respectively in conjunction with broad reforms to the making of delegated legislation. The changes in New South Wales and Victoria will be examined more closely.

New South Wales

7.4. The Subordinate Legislation Act 1989 (NSW) sets out the requirements for making statutory rules and the process for their staged repeal. In an attempt to `clean up’ the statute book, all statutory rules in NSW published before the date specified are to be repealed according to the following timetable: Date of rule Date of repeal Prior to 1 Sept 1941 1 Sept 1991 1 Sept 1941 to 31 Aug 1964 1 Sept 1992 1 Sept 1964 to 31 Aug 1978 1 Sept 1993 1 Sept 1978 to 31 Aug 1986 1 Sept 1994 1 Sept 1986 to 31 Aug 1990 1 Sept 1995 1 Sept 1990 onwards 5 years after commencement 7.5. The New South Wales Regulation Review Committee has reported that prior to the commencement of the timetable for staged repeal on 1 July 1990, the Government published a Gazette in three separate parts and an appendix of four further parts, totalling 1 568 pages of delegated legislation. The Gazette contained twenty-four principal statutory rules, apparently re-made in an attempt to maximise their life. This drew adverse comment from 1 A Recent example is the Social Security (Rewrite) Act 1991. 2 See Chapter 1, paragraph 1.17. 3 Section 5 Regulatory Reform Act 1986 (QLD) and Part IIIa Subordinate Legislation Act 1987 (SA).

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the Committee which recommended that each of the Ministers concerned give an undertaking to deal with each statutory rule published in that Gazette as if it were subject to a temporary exemption only. Statutory rules subject to temporary exemption are generally required to be subjected to a regulatory impact statement within four months after their making. The Council understands that no action has been taken on this recommendation.

Victoria

7.6. Provision for sunsetting was introduced in the Subordinate Legislation (Review and Revocation) Act 1984 (Vic). This followed concerns expressed by the Legal and Constitutional Committee of the Victorian Parliament on the need for regular consolidation of delegated legislation. At the time many of the statutory rules were found to be no longer operative, mainly through the passage of time. The Committee therefore recommended a staged repeal of all existing statutory rules, subject to some limited exceptions, and an ongoing ten-year sunsetting period for all other statutory rules. The following table sets out the schedule: Date of rule Date of repeal Prior to 1 Jan 1962 1 July 1985 1 Jan 1962 to 31 Dec 1971 30 June 1988 1 Jan 1972 to 30 Jun 1982 30 June 1992 1 Jul 1982 onwards 10 years after commencement 7.7. The period of ten years was chosen as it allowed sufficient time for departments to gauge the effect of the rule. The Committee commented:

Ten years is a not inconsiderable time during which departments can review and, if necessary, revise their subordinate legislation. Indeed, as is evident from the submissions received by the Committee some departments and other bodies are already doing this in the normal course of operation. A department which left review of its subordinate legislation until, say, six months or six weeks before the expiration date would be administratively inept.

7.8. The Committee advised the Council that sunsetting to date has not been a problem. Departments had reviewed all earlier statutory rules in accordance with the statutory timetable and the first automatic sunsetting will come into effect in July 1992.

Proposals for the Commonwealth

7.9. The issue of automatic sunsetting evoked considerable debate at consultations conducted by the Council. There was concern that a five-year cycle as exists in New South Wales would be too short and agencies would simply be making and re-making all rules with little time for any other activities. A ten-year cycle similar to that in Victoria was somewhat more palatable. 7.10. The state of Commonwealth delegated legislation is not immediately clear because of the difficulty in gaining access to the many disallowable instruments. To obtain a definitive picture would require extensive research beyond the Council’s resources. Given the growth in the number of instruments outside the Statutory Rules Series and the Council’s proposal that all future delegated instruments be subject to consistent standards and be published in one series, the Council considers that a general sunsetting requirement should apply to all existing principal instruments. The community would thus be able to gain a clear picture of the state of the law contained in delegated legislation.

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7.11. It appears to the Council that Commonwealth delegated legislation can broadly be divided into three categories. To simplify the boundaries between the three categories, instruments will be taken to fall into the first two categories according to the date prior to 1 January 1992 when the last change was made to them. This will avoid any rush to re-make instruments to maximise their life. Instruments will fall into the third category according to the date the instrument was first made. For this category, subsequent amendments will not affect the date for sunsetting. 7.12. The first category should comprise those principal instruments where the last change to the instrument prior to 1 January 1992 was made before 1 January 1980. The second category should comprise those principal instruments for which the last change to the instrument prior to 1 January 1992 occurred between 1 January 1980 and 31 December 1991. The third category should consist of any principal instrument first made from 1 January 1992 onwards. 7.13. The delegated legislation in the first category may need extensive revision as it was made prior to the disciplines imposed by the new administrative law on the way rules were drafted. The changes to Commonwealth administrative law commenced after the passage in 1975 of the Administrative Appeals Tribunal Act. This was followed by the Ombudsman Act in 1976 and the Administrative Decisions (Judicial Review) Act in 1977. The terms of reference of the Senate Regulations and Ordinances Committee were also amended in 1979 to reflect the principles of the new administrative law. It took until about 1980 before these changes had time to have any substantial effect on the way delegated rules were drafted. 7.14. A general sunsetting provision relating to these first category rules would provide agencies with the opportunity to examine them to see whether they still have scope for operation and whether the drafting is consistent with the present requirements of administrative law. If an agency wishes to continue a rule, it will have to be re-made according to the new standards. The Council considers that two years after the introduction of the proposed Legislative Instruments Act will provide sufficient time for instruments in this category to be reviewed. 7.15. The instruments made in the period after 1980 are more likely to reflect the influence of the new administrative law. For example, the rules would be less likely to contain unfettered discretions. Where discretions are included, provision would have been made for their review on merits. 7.16. To sunset all instruments in this category at one time would pose enormous workload implications because of the extraordinary growth in instruments, particularly those outside the Statutory Rules Series. For this reason, this period should be divided into two sections, 1980 to 1986 and 1987 to 1991. The dates when these two groups of instruments would cease to have effect would be 1 January 1997 and 1 January 2000 respectively. 7.17. The final category of instruments, those made from 1 January 1992 onwards, should have a fixed automatic sunsetting provision of ten years after the principal instrument is first made. 7.18. The Council believes that it is sound administrative practice to have some mechanism to ensure instruments are reviewed. In general, all instruments should have a maximum life of ten years. They can then be reviewed to determine whether they are still required and, if

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so, whether they meet current drafting standards. Re-making will also ensure that the public will be able to gain access to instruments without having to search many years of the Legislative Instruments Register proposed by the Council in the next chapter. Recommendation 23 All existing principal instruments of a legislative character and all instruments subject to the Legislative Instruments Act should be sunsetted as follows: Date prior to Date of sunsetting 1 Jan 1992 of last change to the principal instrument Before 1 Jan 1980 1 Jan 1995 1 Jan 1980 to 31 Dec 1986 1 Jan 1997 1 Jan 1987 to 31 Dec 1991 1 Jan 2000 Date of first making Date of sunsetting of principal instrument After 1 Jan 1992 Ten years after commencement of the principal instrument

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CHAPTER 8

ACCESS TO DELEGATED LEGISLATION

Introduction

8.1. There is a presumption that a person is expected to know the law and ignorance of its terms does not excuse the citizen from conducting himself or herself in accordance with it. But if a person cannot find the law, the presumption may seem somewhat unfair. As Chief Justice Barwick said:

I regard the availability of the terms of the law to the citizen to be of paramount importance. No inconvenience in government administration can, in my opinion, be allowed to displace adherence to the principle that a citizen should not be bound by a law the terms of which he has no means of knowing.1

8.2. The Council was told that many delegated legislative instruments are very difficult to obtain. The material is not always physically available and, where it is, access is often impeded because the material is not kept in any systematic series. This unavailability is additional to any problems associated with lack of comprehension due to the quality of drafting.2 8.3. The growth in the number of delegated legislative instruments3 makes the issue of access increasingly important. This chapter discusses the current publication requirements imposed by statute and the practices within agencies for making instruments available. It also examines ways to improve access to all delegated legislation.

Publication requirements

Statutory rules 8.4. Section 48 of the Acts Interpretation Act 1901 requires the making of regulations to be notified in the Gazette. Section 5 of the Statutory Rules Publication Act 1903 provides:

3. Where any statutory rules are required by any Act to be published or notified in the Gazette, a notice in the Gazette of the rules having been made, and of the place or places where copies of them can be purchased, shall be sufficient compliance with that requirement.

8.5. In Watson v Lee, a majority of the High Court held that this provision was satisfied only if the instrument could be purchased at the designated place on the date of notification4. Justice Gibbs was prepared to allow some latitude in the availability of the instrument for purchase and stated that the instrument would operate at least from the date the instrument became available. 8.6. The Statutory Rules Publication Act was amended in 1978 to require that copies of a statutory rule should be available for purchase ‘at the time of publication of the notice or as

1 Watson v Lee (1979) 144 CLR 374 at page 381. 2 See Chapter 4, paragraph 4.4. 3 See Chapter 1, paragraph 1.117. 4 Watson v Lee (1979) 144 CLR 374.

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soon as practicable thereafter’5. If on the date of publication no copies were available for purchase, the Minister must explain the reason in Parliament. However, failure to comply with these new provisions is not to be taken as failure to comply with section 5(3). 8.7. This amendment appears to have qualified the requirements set out in Watson v Lee in that availability ‘as soon as practicable’ will be sufficient. A member of the public can thus be obliged to comply with the law, the text of which is not immediately available. Even under the requirements in Watson v Lee there was no obligation to maintain the availability of copies of the instrument. 8.8. The Statutory Rules Publication Act also covers such matters as the numbering, citation and reprinting of statutory rules. 8.9. All statutory rules are published as part of the Statutory Rules Series for which the Office of Legislative Drafting is responsible. The instruments included in the Series are printed by the Australian Government Publishing Service in pamphlet form as they are made and as an annual volume. There is also a general reprint program to consolidate all instruments in the Series. The Statutory Rules Series is accessible through all outlets of the Australian Government Publishing Service, although it may not always be possible to purchase copies of a particular rule. 8.10. The main shortcoming of the Statutory Rules Publication Act is that it has been understood to apply only to rules of court, regulations and by-laws made under an Act by the Governor-General, a Minister or any department6. Other legislative instruments are in general not required to comply with the provisions of the Act for numbering, printing and sale by the Government Printer. Access to these instruments is consequently dependent upon either other statutory requirements, including those imposed by the enabling Act, or the good graces of the administering agency. 8.11. Furthermore, instruments that might otherwise have fallen within the publication requirements of the Statutory Rules Publication Act may be removed from its ambit by a declaration in the enabling statute. Some statutes exempt instruments entirely from the provisions of the Statutory Rules Publication Act, for example, by-laws under the Customs Act 1901,7 while others exempt them in part, for example, by-laws under the Federal Airports Corporation Act 1976.8 8.12. Disallowable instruments are subject only to the notification and purchase requirements of the Act9. There is no obvious reason why they should not also be numbered, printed and sold by the Government Printer. Other statutory publication requirements 8.13. Some statutes, while providing that the Statutory Rules Publication Act does not apply to a particular instrument, include alternative publication requirements. For example, the Customs Act 1901 sets out the publication requirements for by-laws and determinations

5 Section 4 of the Statutory Rules Publication Amendment Act 1978. 6 For an alternative interpretation of the Act, see the discussion at Chapter 1, paragraphs 1.21-1.22. 7 Paragraph 273B(1)(c) of the Customs Act 1901. 8 Section 72(6) of the Federal Airports Corporation Act 1978. 9 Section 46A(1)(c) of the Acts Interpretation Act 1901 applying sections 5(3)-(3C) of the Statutory Rules Publication Act 1903.

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made under it. Again there is a question why separate regimes closely paralleling the Statutory Rules Publication Act should be provided separately.

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Non-statutory publication 8.14. Outside the statutory requirements set out above, there is little by way of formal requirements to ensure an instrument is accessible to the public. If an instrument is not covered by the Statutory Rules Publication Act or if it were not to have its own publication requirements, the access and publication arrangements would be the responsibility of the sponsoring agency10. 8.15. Agencies recognise that there are difficulties in gaining access to instruments and make efforts to remedy this situation. For example, consolidated Orders made by the Department of Primary Industries and Energy are reproduced in loose-leaf format with amending instruments deleting and re-inserting pages in the consolidation rather than textually amending each order separately. Proclamations are used extensively under the Quarantine Act and are published in full in the Gazette. To assist users, proclamations are repealed in full and replaced with completely new instruments. 8.16. The Senate Standing Committee on Regulations and Ordinances has also reported difficulty in tracking instruments after they are made, amended and updated. It has requested agencies to commence an internal numbering system to improve the accessibility of these instruments. For the few disallowable instruments made under the Social Security Act 1991, the Department of Social Security has responded to this by establishing a statutory instruments register which sequentially numbers its instruments on a yearly basis. 8.17. Another way in which some order is imposed on instruments outside the Statutory Rules Series is through the Office of Legislative Drafting. Where this Office is involved in the drafting of instruments outside the Statutory Rules Series, the Office discusses with the client agency a suitable numbering system, consistency in format and publication. Conclusions 8.18. The Council is concerned to see that consistent standards for access to delegated legislative instruments should apply irrespective of their class or existing arrangements for access. Currently, the publication requirements for delegated legislation vary according to whether the instrument is included in the Statutory Rules Series or whether it has partial or no coverage under the Statutory Rules Publication Act. 8.19. In the Council’s view, it would be preferable to establish a completely new series to cover all instruments that are legislative in character. This has the advantage of allowing some time to design the system and of starting the system with a ‘clean slate’. This approach would gather all instruments currently distributed or published by agencies into one series and be a single reference point for all delegated rules. It would also mean that with sunsetting, as recommended by the Council, all existing instruments would be brought within this series as they are reviewed and updated over a period of time. Recommendation 24 The Statutory Rules Series should be replaced by a new series to cover all delegated legislative instruments that are subject to the Legislative Instruments Act.

10 Section 9 of the Freedom of Information Act 1982 requires agencies, among other things, to make available for inspection and purchase a range of documents including ‘manuals or other documents containing interpretations, rules, guidelines, practices or precedents’.

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Legislative Instruments Register

US Federal Register 8.20. The United States publishes its legislative instruments in the US Federal Register. The Register is produced Monday to Friday and its main function is to give notice to the public about the making of a new rule. The documents that are required to be published in the Register are presidential documents, rules and regulations, notices to the public of the proposed issuing of rules and regulations, and notices of Sunshine Act meetings. An Australian register 8.21. On the basis of the current volume of delegated legislation, it is likely that the proposed legislative instrument series will contain in excess of 1 500 instruments per year. The majority of these will amend existing instruments but others will be new instruments. A comprehensive register would seem the best means for ensuring an orderly compilation of such a large number of instruments. 8.22. The Attorney-General’s Department stated in its submission that a loose-leaf format for production of delegated legislation may be costly and that the cost implications would require further consideration. In fact, its Office of Legislative Drafting is presently consolidating all legislation on its publishing system, known as CONSOL. This system allows the legislation to be updated electronically and prepared as ‘camera ready’ copy for the Australian Government Publishing Service. This has already streamlined the publishing of instruments for which the Attorney-General’s Department has responsibility. 8.23. The Council’s Issues Paper raised the possibility of electronic publication, storage and access to legislative instruments. Where a store of information is extensive and difficult to access, advances in computer technology have provided a range of solutions. In one recent initiative, the Commonwealth has joined with a private company in a joint venture to publish Commonwealth materials on Compact Disc Read Only Memory (CD-ROM). This allows the Commonwealth to recoup part of the cost of publishing statutes, statutory rules and the like, regardless of the demand for the information. 8.24. Given the problems in providing access to the existing delegated legislation, the Council believes that computer-based publication, storage and access should be investigated for all delegated legislative instruments. 8.25. The possibility of publication being undertaken by commercial publishers was mentioned in some submissions. Some companies publish consolidated materials on a range of subjects such as tax, family law and intellectual property. There is clearly a market for this type of material. There is less of a demand for consolidated services in areas such as veterans’ affairs and social security for obvious commercial reasons. The Council is not satisfied that, if publication of delegated legislation were left to commercial publishers, legislation for which there is no great commercial demand would be adequately serviced. 8.26. In the Council’s view, a single comprehensive register for all legislative instruments is both desirable and feasible. Forms of new technology should be investigated to improve access, simplify the process of registration and reduce costs. The Office of Legislative Drafting should be responsible for the establishment and maintenance of the register, including publication of instruments.

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Recommendation 25 Under the Legislative Instruments Act, a Legislative Instruments Register should be established in which all delegated legislative instruments covered by the Act should be published. Recommendation 26 (1) Responsibility for the establishment and maintenance of the Legislative

Instruments Register, including publication of instruments, should be with the Office of Legislative Drafting.

(2) The possibility of computer-based publication and storage of the Register, and access to the Register, should be investigated by the Office of Legislative Drafting.

Instruments to commence on publication

8.27. Under the Acts Interpretation Act, all regulations made under an Act require notification in the Gazette in the absence of a contrary intention in that Act. They may be specified to take effect from a date, or time on a date, or on the date of commencement of an Act or a provision of an Act. Where the regulations are silent as to when they take effect, they will be effective from the date of their notification. 8.28. Under the Council’s proposals, all instruments will be covered by the same rule for publication under the Legislative Instruments Act. They should commence on the date of publication in the Legislative Instruments Register and take effect at the same time unless a different date or time is specified. A further advantage of these arrangements is that all legislative instruments will be publicly available from the date of commencement. 8.29. Under existing arrangements, where a regulation is expressed to take effect from a date earlier than the date of notification, section 48(2) of the Acts Interpretation Act provides that the provision is of no effect where it prejudicially affects the existing rights of a person, or it imposes liabilities on any person for previous actions or omissions. This position should be continued under the Legislative Instruments Act. Recommendation 27 (1) Under the Legislative Instruments Act, a delegated legislative instrument should

commence from the date on which it is published in the Legislative Instruments Register and take effect immediately unless a different time is specified in the instrument.

(2) Where a delegated legislative instrument is expressed to take effect from a date earlier than its date of publication in the Legislative Instruments Register the instrument should be of no effect where:

• it affects a person’s rights existing at the date of publication in a manner prejudicial to that person; or

• it imposes liabilities in respect of anything done or omitted to be done before the date of publication.

(3) A legislative instrument should be unenforceable until it is published in the Legislative Instruments Register.

Definitive text of legislative instruments

8.30. On very rare occasions the published text of a legislative instrument may differ from the version originally made by the relevant authority. Members of the public are obliged to

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comply with the law and that law is that which is contained in the instrument signed by the duly empowered authority. As the law presently stands, it is no excuse that a published version of an instrument is incorrect. 8.31. Nevertheless, the Council considers that members of the public should be entitled to rely on the text of an instrument as it appears in the Legislative Instruments Register. It is true that the published version is not the law. The text of the instrument as signed is the definitive statement of the law. But it is possible to provide that a person who acts in accordance with the version of an instrument appearing in the Register shall not be subjected to any prejudice by reason of his or her reliance on that version.11 Recommendation 28 Under the Legislative Instruments Act, a person shall hot be subjected to any prejudice by reason of their reliance on the text of a legislative instrument as published in the Legislative Instruments Register where that text differs from that in the original instrument made by the relevant authority.

Documents incorporated by reference

8.32. As explained in Chapter 612, section 49A of the Acts Interpretation Act 1901 allows for material to be incorporated into regulations by reference in two ways. First, where the material to be incorporated is contained in an Act or a regulation, it may be incorporated either as it is in force at a particular time or as in force from time to time. Second, where the material to be incorporated is contained in any other document, it may only be incorporated as it exists at the time the incorporating regulation takes effect. 8.33. On occasion provision is expressly made in an instrument for matter other than part of another Act or regulation to be incorporated by reference, as that matter exists from time to time. This creates real problems of access. How, for instance, would changes to incorporated material be brought to the attention of people affected. 8.34. For this reason, the Council believes that the text of all incorporated material should be included in the legislative instruments series on the Legislative Instruments Register. Failure to publish the material in this way should mean that it would not have any effect. It should only come into operation once it is on the Register. Similarly, any changes to the incorporated material should also be registered before they can take effect. Thus, material would be able to be incorporated from time to time, but would only become effective on publication in the Register. Recommendation 29 (1) Under the Legislative Instruments Act, the text of any document, other than an Act,

applied, adopted or incorporated in a legislative instrument by reference should have no effect until published in the Legislative Instruments Register.

(2) Changes to any material, apart from Acts and other legislative instruments, applied, adopted or incorporated from time to time should be placed on the Legislative Instruments Register and to the extent that they are not, they should be unenforceable.

11 Refer to section 10 of the Freedom of Information Act 1982. 12 See Chapter 6, paragraphs 6.49-6.56.

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CHAPTER 9

RULES OF COURT 9.1. Rules of court govern the procedure of a court and provide a framework for the conduct of litigation. While they relate to matters of procedure, their application can have a significant effect on the outcome of a case. There is a question whether the recommendations in this report for the making of delegated legislative instruments generally should apply to rules of court which in many ways are distinct from other forms of delegated legislation. As rules of court are already subject to existing requirements for publication and parliamentary scrutiny, the question relates particularly to the recommendations for consultation and sunsetting.

Power to make rules

9.2. Rules of court have a long history. Jenks1 reports that Chancery orders date back to 1388. In 1571, rules for the Exchequer of Pleas were made by the Lord Privy Seal and the King’s Bench is reported to have made rules from at least 1604. Court rules at this time were made under the inherent jurisdiction of the courts to control and regulate their own proceedings. 9.3. While the courts still have an inherent jurisdiction to govern their own procedures2, it is not an exclusive jurisdiction. The Commonwealth Parliament has the power to enact statutes regulating court procedure under the incidental power in section 51 (xxxix) of the Constitution. Quick and Garran3 commented:

Under this power, the Parliament can legislate with respect to the practice and procedure of the Courts, the conduct of appeals, the administration and status of legal practitioners in the courts of federal jurisdiction, and so forth.

9.4. Thus, there are two sources of power to create rules of court, the inherent power of the court to govern its own procedures and the power of Parliament to legislate for court procedures. The inherent power is not delegated by Parliament. The legislative power of Parliament can be delegated. In fact, delegations have been made, both to the Governor-General and the courts themselves.

Rules of court today

9.5. The High Court was established by section 71 of the Constitution and constituted and structured by two statutes, the Judiciary Act 1903 and the High Court of Australia Act 1979. The Federal Court and the Family Court were created by the Federal Court of Australia Act 1976 and the Family Law Act 1975 respectively. The Parliament may also invest State Courts with federal jurisdiction.

1 Jenks E, A Short History of English Law, London, 4th ed, 1928, Chapter 19. 2 Harris v Caladine (1991) 99 ALR at page 210. 3 Quick J & Garran RR, The Annotated Constitution of the Australian Commonwealth, Legal Books, Sydney, 1901, at page 11.

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High Court 9.6. The first High Court Rules in 1903 were enacted by Parliament as a schedule to the High Court Procedure Act 1903. But sections 32 and 33 of the Act conferred power on the judges to make new rules, to amend and annul the scheduled rules and to re-promulgate them. At the same time additional rule making powers were given to the judges under section 86 of the Judiciary Act 1903. Rules made under either Act were to be laid before both Houses of Parliament. A rule could be annulled by an address by either House to the Governor-General. 9.7. In 1937, the power to make rules and the rules themselves were removed from the High Court Procedure Act and section 86 of the Judiciary Act became the sole statutory rule making authority. The existing rules made under the High Court Procedure Act were deemed to be rules made under section 86 of the Judiciary Act. 9.8. The High Court of Australia Act 1979 repealed the High Court Procedure Act. Section 48 of the new Act extended the rule making power under the Judiciary Act to authorise the Court to make rules necessary or convenient for carrying into effect the provisions of the new Act. 9.9. Since 1985 the Judiciary Act has also conferred a broad regulation making power on the Governor-General4. The power was apparently added to enable the making of regulations concerning notices given under section 78B on constitutional matters in the courts and express provision is made for this. In 1990 the power to prescribe fees, which up to that time had been vested in the Court, was transferred to the Governor-General5. The powers conferred on both the Court and the Governor-General are in the broadest terms and it is not obvious where the division of responsibilities between them lies. 9.10. High Court Rules are subject to parliamentary tabling and disallowance and are published in the Statutory Rules Series. While there is no formal requirement for consultation, the Council understands that the Law Council of Australia is usually consulted before important rules are made. Since they were first made in 1903, the Rules have been subject to one major revision in 1952. Federal Court 9.11. The Federal Court has authority under section 59 of the Federal Court of Australia Act 1976 to make rules of court, subject to procedures which may be set down in other Acts6. Section 60 of the Act gives the Governor-General power to set the fees for the Court by regulation. Rules of the Federal Court are published in the Statutory Rules Series and subject to parliamentary tabling and disallowance. While the Court does occasionally consult on new rules, there are no formal requirements for consultation. There has been no systematic review of Federal Court Rules since they came into operation in 1979. Family Court 9.12. In contrast to the Federal Court, the rules of the Family Court were originally made as regulations by the Governor-General. This may have been to enable the Government to retain closer control over the development of the Court. However, it was found that this arrangement was cumbersome and led to delays. In 1979, the Joint Regulations Committee 4 Section 88 inserted by the Statute Law (Miscellaneous Provisions) Act (No.2) 1983, Schedule 1, which commenced on 31 May 1985. 5 Section 21, Courts and Tribunals Administration Act 1989 which commenced on 1 January 1990. 6 For example, the Bankruptcy Rules under the Bankruptcy Act 1966.

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consisting of the Family Court judges and the Family Law Council recommended that the rule making function be transferred to the judges of the Court and the Family Court of Western Australia. This was supported by the Senate Standing Committee on Constitutional and Legal Affairs7. An amendment to the Family Law Act in 1983 which took effect from 1985 implemented the recommendation, but the regulation making power of the Governor-General was retained for some matters, notably, the fixing of fees. 9.13. Family Law Rules are published as statutory rules, are required to be tabled in each House of the Parliament and are subject to disallowance. Unlike the situation with the other courts, there is also a statutory mechanism for consultation. Section 124 of the Family Law Act 1975, included in the Act by the 1983 amendments, establishes a Rules Advisory Committee. The Committee may consist of judges of the Family Court of Australia, judges of the Family Courts of any State and other persons. The function of the Committee is to advise on the making of rules of court. The Council understands, however, that no appointments to the Committee have been made. The Family Law Council is seen to be the means to gather community views on family law matters generally, including family law rules. The Rules Committee established by the Court also undertakes consultation with representatives of the Law Council of Australia and legal aid bodies when developing new rules. Summary 9.14. Rules for the practice and procedure of Commonwealth courts are generally made by the judges of those courts, some of these being drafted or settled by the Office of Legislative Drafting in the Attorney-General’s Department. In addition, the Governor-General makes regulations on a limited number of matters, most notably the setting of fees. All rules are subject to publication in the Statutory Rules Series and tabling and disallowance by the Parliament. With the exception of the Family Court, there are no statutory requirements for consultation in the development of rules, although some consultation with the legal profession does occur. As with other Commonwealth statutory rules, there is no mandatory period within which they must be reviewed or renewed.

Distinctive characteristics of rules of court

9.15. There are several important differences between rules of court and other delegated legislative instruments which have a bearing on their inclusion in the regime recommended in this report. Made by courts 9.16. Most rules of court are made by courts, the judicial branch of government, rather than by officers of the executive branch responsible directly or indirectly to the Parliament. Under the Commonwealth Constitution, moreover, there has been held to be a strict separation of judicial power from the other forms of power. This raises a question whether the procedures proposed in this report, if applied to rules of court, would infringe either the constitutional doctrine of separation of powers or the proprieties of the relationship between branches of government. 9.17. This important issue is taken up in paragraphs 9.40 to 9.43 below. It may be noted at this point, however, that its resolution is assisted by the fact that rules of court are already subject to the requirements for publication, tabling and disallowance which apply to all

7 Senate Standing Committee on Constitutional and Legal Affairs, Report on Parliamentary Scrutiny of Rules of Court, March 1979, at page 11.

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statutory rules. On the assumption that these procedures do not offend the doctrine of separation of powers, the only question that remains is whether the extension of the present regime to include consultation and sunsetting would do so. Alternative inherent source of power 9.18. A second point of distinction between rules of court and other forms of delegated legislation is the alternative source of power for making rules of court which can be found in the inherent power of a court to regulate its own proceedings. 9.19. This report is concerned with legislation made under delegation from the Parliament and therefore has no application to rules made by courts in exercise of an inherent power. In this regard, therefore, the relationship between the inherent and delegated powers to make court rules becomes relevant. 9.20. In Rules of Court8, Professor Enid Campbell says:

Nowadays it is most unusual for a court of law to be created without statutory provision of some kind being made for the making of procedural rules for that court. If no such provision at all is made and the statute in question does not itself regulate the court’s procedures, there can be little doubt that the court may, drawing on the concept of inherent jurisdiction, adopt appropriate rules of practice and procedure ...

If the parliament has delegated to the court a comprehensive rule making power which is co-extensive with, or perhaps even wider than, the power the court would have had as part of its inherent jurisdiction, the statute, presumably, becomes the sole source of the court’s rule making power and the court’s inherent power is suspended so long as the statutory provision remains in force ...

If the rule making authority conferred by statute is less ample than that inhering in the court as a matter of common law, it could be argued that the inherent jurisdiction may still be invoked to deal with matters not comprehended by the statutory power. There is, after all, a presumption that statutes do not denude courts of their jurisdiction unless a clear intention is disclosed to the contrary. If that presumption is applied, a statute delegating to a court a rule making power less ample than its inherent power would keep alive the inherent power to the extent that it had not been overtaken by statute.

9.21. Given the two sources of power, the question arises as to which source is used on each occasion rules are made. At present, rules for Commonwealth courts are invariably described by the court in question as having been made under the relevant Act, as forming part of the Statutory Rules Series and as being subject to parliamentary scrutiny. All these factors suggest that rules of court are made under the rule making authority conferred by statute rather than the inherent power, although that presumably exists as a fallback. As Campbell suggests, moreover, in some respects the statutory power may be broader than the inherent power of the court. Character of rules of court 9.22. A third distinction may lie in the character of rules of court themselves. Because they are made by courts there is a question whether, given the doctrine of separation of judicial from other forms of powers, they are judicial or at least less legislative in character. An equivocal answer to this question was given in Queen v Davison9, where Chief Justice Dixon and Justice McTiernan said: 8 Campbell E, Rules of Court, Law Book, 1985, at page 37. 9 (1954) 90 CLR 353 at pages 369-70.

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An extreme example of a function that may be given to courts as an incident of judicial power or dealt with directly as an exercise of legislative power is that of making procedural rules of court ...Nevertheless it is clear enough that making rules of procedure may in one point of view be regarded as a legislative function, though in another point of view it may be considered as an incident of judicial power ...But there are many functions or duties that are not necessarily of a judicial character but may be performed judicially, whether because they are incidental to the exercise of judicial power or because they are proper subjects of its exercise.

9.23. In the Council’s view, while this passage explains why courts may make rules consistently with the doctrine of separation of powers, it does not suggest that the rules thereby lose their legislative quality.

Views of the courts

9.24. The Council received representations from both the High Court and the Family Court supporting the exemption of rules of court from formal public consultation. 9.25. The High Court drew attention to the differences between the rules made by a court and the other subordinate legislation with which the Council’s project is concerned, which is made by the executive branch. Courts are an arm of government in their own right, distinct from and not subordinate to the executive. The relationship between the courts and the other arms of government is characterised by a separation of judicial power, which in turn assists to ensure judicial independence. The power of the courts to manage their own affairs through rules of court is itself an attribute of judicial independence. The Court suggested also that in many cases consultation, except perhaps with the Bar Associations and Law Societies, would achieve no useful purpose but merely delay a desirable change, at times required as a matter of urgency. 9.26. The Family Court also noted the distinctive features of the courts as the third arm of government. Rules of court, made by judges of the court, provide the essential framework for court proceedings, and should not be subject to policy considerations of the executive. The Court said that it was essential that the judges have the capacity to make and amend rules with expedition and suggested that the public would derive little benefit from consultation on what were essentially technical matters. It was pointed out that the Family Court consults with the Law Council and, more recently, legal aid bodies on proposed rule changes.

Consultation and sunsetting in New South Wales and Victoria

9.27. In both New South Wales and Victoria rules of court are required to be tabled in the Parliament and are subject to disallowance. In New South Wales they are published in full in the NSW Government Gazette, whilst in Victoria they are published in the Statutory Rules Series (Vic). However, in both States they are exempt from the requirements for regulatory impact statements and their associated consultation10. 9.28. In New South Wales, a regulatory impact statement is not required as rules of court are excluded from the definition of statutory rules11. They are therefore not subject to the

10 In NSW, exemption is granted by virtue of its inclusion in schedule 4 to the Subordinate Legislation Act 1989. In Victoria, exemption is now granted through the guidelines (effective 1 October 1990) prepared by the Attorney-General in accordance with section 11 and schedule 1 of the Subordinate Legislation Act 1962. 11 Section 3(1) and schedule 4 of the Subordinate Legislation Act 1989 (NSW).

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ministerial supervision which is given to the preparation of other statutory rules12. In 1989 the Regulation Review Committee had concluded that it would be inappropriate to make rules of court subject to this ministerial supervision13. Rules of court are, however, still subject to the Regulation Review Act 1987 (NSW) which requires the preparation of an explanatory statement for new and amending instruments, and are regularly reviewed by the various rules committees. 9.29. In Victoria, the reasons for exemption from the regulatory impact statement and consultation requirements appear to be similar. While it was not proposed to exempt rules of court when the making of regulatory impact statements was introduced in 1985, they were exempted the following year14. The making of regulatory impact statements in Victoria is reviewed not only by the Parliamentary Legal and Constitutional Committee but also by the Regulation Review Branch of the Department of Small Business. The responsible Minister is also obliged to ensure that comments and submissions on proposed rules are considered. 9.30. Rules of court are subject to the ten-year sunsetting requirement in Victoria, while in New South Wales, where the sunsetting cycle is five years, rules of court are not to be sunsetted15.

The Legislative Instruments Act and rules of court

9.31. This report has recommended a Legislative Instruments Act containing new procedures for the making, scrutiny and publication of delegated legislative instruments. The Council proposes a comprehensive regime of consultation on significant rules, sunsetting of all delegated legislation, parliamentary scrutiny and publication. Parliamentary scrutiny and publication 9.32. The procedures for parliamentary scrutiny and publication appear not to be contentious. They apply already to Commonwealth rules of court. In the case of the High Court they have done so for at least fifty years and there has been some form of parliamentary scrutiny of court rules since the High Court was constituted in 1903. 9.33. In submissions to the Senate Standing Committee on Constitutional and Legal Affairs in 1979 members of the judiciary argued that the power to make rules should be retained by judges but subject to the ultimate veto of disallowance by Parliament. The Committee reported that ‘all submittors asserted it was entirely appropriate that parliaments should play a role in scrutinising rules of court and being able to disallow rules of court’16. 9.34. Instances of the use of the disallowance power, however, at either the State or Commonwealth level, are rare17. Objections to particular rules are usually dealt with by

12 Section 5 of the Subordinate Legislation Act 1989 (NSW) requires the responsible Minister to ensure that a regulatory impact statement is prepared, that notification of and consultation on a proposed rule is undertaken, and that comments are appropriately considered. See also Chapter 5, paragraph 5.24. 13 Regulation Review Committee, Legislation for the Staged Review of New South Wales Statutory Rules, July 1989, at pages 26-7. 14 Gazette, No 39, 21 May 1986, at page 1484. 15 Section 3A of the Subordinate Legislation Act 1962 (VIC) provides for sunsetting of statutory rules including rules of court. Schedule 4 and section 3 of the Subordinate Legislation Act 1989 (NSW) exclude rules of court from the operation of the Act and, therefore, from the sunsetting requirements. 16 Senate Standing Committee on Legal and Constitutional Affairs, Report on Parliamentary Scrutiny of Rules of Court, March 1979, at page 13. 17 For example, see Mangano v Mangano (1974) 4 ALR 303.

71

giving the rule maker an opportunity to change the rule either before notice of a disallowance motion is given or before it is dealt with by the Senate.

72

Consultation and sunsetting 9.35. The principal issue therefore is whether rules of court should be subject to the consultation and sunsetting requirements that would be applied to all other delegated legislation under the Council’s recommendations. In this regard two aims of this report are important: • to modernise procedures for making delegated legislation to include consultation and

sunsetting; and • to ensure that procedures which have been determined to be appropriate in principle

apply consistently to all forms of delegated legislation, rather than in the patchy fashion which has prevailed to date.

9.36. The principles on which the Council has acted in recommending that consultation and sunsetting should generally be included in procedures for making and review of delegated legislation are: • any law making is improved by obtaining a variety of views, including the views of

interested members of the public; • consultation is consistent with procedural fairness; • consultation promotes the greater accessibility of law makers; • the discipline imposed by consultation results in more considered and better laws; and • it is sound administrative practice to periodically review laws to determine their

suitability for current needs. 9.37. On the face of it, these principles apply equally to rules of court. They suggest that statutory rules of court, being legislative instruments made by the judges of the courts under delegation from the Parliament, should be subject to the same general requirements as other delegated legislation. The question is whether there are important grounds of public policy for excluding them. 9.38. The arguments for excluding rules of court from the general regime can be summarised as follows: • They are not made by the executive but by the courts and are integral to the management

of the court’s own affairs. Interference with this has the potential to compromise the independence of the judiciary.

• Rules of court on occasion need to be made urgently and the Council’s proposals may merely delay a needed change.

• Current consultation, where undertaken, is adequate. Any rules of court are merely technical in nature and consultation beyond the legal profession would achieve little.

• Consultation and sunsetting would impose significant further costs on the courts. 9.39. The only one of these unique to the courts is the first. Each of the others applies equally to delegated legislation made by the executive and has been dealt with earlier in this report. Threat to independence 9.40. The Council is conscious of the real importance of the independence of the courts and the judiciary from the executive. Anything which would detract from such independence should be resisted. 9.41. In the Council’s view, however, its proposals for consultation and sunsetting would not interfere with judicial independence. The executive branch will not be involved in the new procedures. The consultation proposed would be the responsibility of the sponsoring

73

body itself, in the case of rules of courts, the courts. The courts would be free to conduct consultation in any manner they wish consistent with the minimum requirements to be set out by Parliament in the Legislative Instruments Act. Where proposed new or amending rules of court attracted the consultation requirements, this would involve public advertisement seeking written submissions. Public hearings would be necessary only for controversial or sensitive proposals which in the case of rules of court could be expected to be rare. The forum would be a matter for the courts. 9.42. Under the Council’s proposals, consultation would not be necessary in those rare cases where the Attorney-General certifies that the public interest requires that consultation should not take place, subject to reasons being provided to Parliament. In view of the importance the Council attaches to the independence of the judiciary from the executive, the Council proposes a variation of this exemption for the courts. In cases where a court decides that the public interest requires, the court should not be obliged to undertake the consultation proposed in this report. However, in the few cases where this might be necessary, the court should be required to explain its reasons and the grounds of public interest relied upon in its Annual Report. 9.43. There would be no ministerial or executive supervision of court rule making as there would have been in New South Wales and Victoria had rules of court been made subject to the regulatory impact statement requirements in those States. Under the Council’s proposals any supervision would be by the Parliament, the body which has delegated its power to the courts. This would be achieved through scrutiny of the rules and the procedures involved in their making by the Senate Standing Committee on Regulations and Ordinances and through the possibility of disallowance by either House. However, this function of parliamentary supervision is not new for rules of court. The only new element would be examination to ensure that minimum standards of consultation have been met for the more significant rules. In the Council’s view, this would impinge on the independence of the courts to no greater degree than the present regime. Expedition 9.44. The Council accepts that on occasion rules of court need to be made with expedition. In this respect, of course, rules of court are in no different position from other delegated legislation. Regulations often are required to be made with extreme urgency. 9.45. Under the Council’s proposals, however, not all instruments will require consultation. Minor technical or machinery instruments that do not fundamentally alter the existing scheme are exempted. Similarly, as discussed in para 9.42 where a court decides in a particular case that the public interest requires, the court will not be required to consult, subject to providing reasons in its Annual Report. 9.46. In view of these proposed exemptions, it is unlikely that the courts will strike difficulties when a new rule is required urgently. Value of consultation 9.47. It may be argued that the extent of consultation currently undertaken about rule making is adequate and that consultation beyond the legal profession would achieve no useful purpose. 9.48. Consultation presently undertaken by the court is with a very limited group, the Law Council and its affiliates and legal aid bodies. Notwithstanding the generally technical

74

nature of rules of court, the Council does not accept that they would not benefit from exposure to a wider group of interests. Consultation with the legal profession alone runs the risk of becoming ‘captured consultation’. Furthermore, others in the community are affected by and have a real interest in the content of rules of court. Fairness suggests they too should be consulted. In the final analysis, wider consultation will expose courts to other legitimate views and can be expected to result in more considered and better rules. Resources requirements 9.49. Both consultation and sunsetting will impose additional costs on the courts. In this respect they will be in the same position as all other bodies involved in making delegated legislation. 9.50. For courts, however, consultation is likely to be required much less frequently. For example, in 1991 the High Court only made two sets of rules, in 1990 one, the Federal Court four sets in 1991 and six in 1990, and the Family Court four in 1991 and four in 1990. An examination of these suggests that three out of every five rules will not require consultation. Nor will it be necessary to hold hearings in most cases where consultation is required. 9.51. Sunsetting and the need to re-make the rules will involve a significant resource commitment when it occurs. Again, however, on the Council’s proposed timetable the first sunsetting of court rules will not take place until 1 January 2000 and thereafter once every ten years. This provides the courts with adequate lead time to plan these exercises and should not unduly tax their resources. 9.52. Furthermore, in view of the importance of consultation and of periodically updating the law, the Council would expect that acceptance by the Government of the recommendations in this report would necessarily carry with it a commitment to adequately resource the courts to meet their new obligations. Conclusions 9.53. The Council has given much thought to the application of its recommendations in this report to rules of court. Notwithstanding some distinctive characteristics of these rules, the Council has concluded that they do not outweigh the arguments in favour of subjecting rules of court to the consultation and sunsetting regime proposed for all Commonwealth delegated legislation. The regime does not threaten judicial independence or control by the courts of their own affairs. Concerns about expedition and resource requirements are relevant, but on balance, not persuasive. In respect of these the courts will be placed in the same position as agencies of the executive, subject to the small variation suggested in paragraph 9.42 above to protect the courts. 9.54. It is the strong view of the Council that general consultation in the development of the more significant rules of court will result in better rules. It will also provide an appropriate form of what might be described as procedural fairness to those in the community with a legitimate interest in this form of legislation and a perception of the greater accessibility of the courts. Similarly, rules of court can only benefit from the periodic review and re-making required by a sunsetting regime. Recommendation 30 (1) Subject to recommendation 30(2), rules of court should be covered by the

comprehensive regime for making, publication and review of delegated legislation proposed for the Legislative Instruments Act, including the consultation in the circumstances identified in this report and sunsetting requirements.

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(2) Consultation need not be undertaken in a particular case for rules of court if the court determines that the public interest so requires. In such a case, the court should be required to explain its reasons and the grounds of public interest relied upon in its Annual Report.

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CHAPTER 10

NATIONALLY UNIFORM REGULATIONS 10.1. The recommendations in this report for the making, publication and parliamentary scrutiny of delegated legislation are designed for Commonwealth delegated legislation. Delegated legislation made under intergovernmental schemes raises additional issues which require separate consideration. 10.2. While inter-governmental arrangements are a familiar phenomenon in Australia, their numbers and complexity are likely to increase in coming years, particularly with the interest in rationalisation of the operation of the federal system. Various different forms of intergovernmental arrangements exist, ranging from agreement between jurisdictions to enact uniform or complementary legislation and regulations to the technique of adoption by reference pioneered for companies and securities law. This chapter uses as a case study the issues raised for delegated legislation by the arrangements recently implemented to achieve national food standards.

Making of national food standards

10.3. The aim of the revised national food scheme introduced in 1991 is to achieve national standards in food hygiene, domestic food surveillance, food recalls and imported food inspection. A National Food Authority, established by the National Food Authority Act 1991, will recommend the relevant standards to the National Food Standards Council which comprises Commonwealth, State and Territory Ministers. The Council was established in 1986 and is continued under the National Food Authority Act. 10.4. An agreement between the Commonwealth and all States and Territories requires each State and Territory to take the necessary legislative or other steps to adopt or incorporate, by reference and without amendment, the food standards as standards in force under the food laws of the State or Territory. Not all States and Territories have as yet enacted their complementary legislation1. 10.5. The procedure for the making of a food standard requires the Authority to receive applications, or to act on its own initiative, for the development or variation of standards2. After assessing these applications, it invites public submissions on the proposals, and makes a full assessment in the light of the comments received3. If it decides that there should be a draft standard, the Authority makes a recommendation to the National Food Standards Council4. The National Food Standards Council must consider the Authority’s recommendation and draft standard5. 10.6. Once the Council agrees on a standard, it is published in full in the Commonwealth Gazette and takes effect on the date specified in the Gazette6. Gazettal acts as a trigger for 1 See section 63A of the Food Act 1984 (VIC) as an example. 2 Sections 12 and 21 of the National Food Authority Act 1991. 3 Sections 15 and 23. 4 Sections 18 and 26. 5 Sections 20 and 28. 6 Section 32.

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complementary legislation in the States and Territories to incorporate the standard into law by reference, using the State equivalent of section 49A of the Acts Interpretation Act 1901 (Cth).

Rule making issues

The legislative character of national food standards 10.7. The national food standards represents a set of rules to be applied in the food industry. The rules are of general application, are binding under State and Territory law and impose obligations on industry. The standards are determinative of the content of the law relating to food hygiene, surveillance, recalls and a range of other matters. On this basis, the national food standards are instruments that are legislative in character, brought into force under the authority of authorising acts, albeit in an unusual way. Legislative instruments requirements 10.8. This report has recommended that all legislative instruments should meet five basic standards in terms of their making, publication and parliamentary scrutiny. The standards are: • instruments should be drafted to a quality consistent with the status of legislative

instruments; • members of the public should be given the opportunity to comment on significant

proposals before they are finalised; • Parliament should scrutinise them after being made; • instruments should be readily accessible to any person who wishes to consult them; and • principal instruments should be sunsetted ten years after they were first made. 10.9. There are some particular difficulties in applying the principles recommended in this report to instruments made under intergovernmental schemes. 10.10. Drafting: Any legislative instrument must meet high drafting standards in presentation, expression and consistency. They should be drafted so that they are clear, concise and unambiguous7. In the context of technical standards, this may be regarded as particularly important to avoid different interpretations of the rule. The Council has been told that the food standards will be prepared by a legal specialist on the staff of the National Food Authority. 10.11. Consultation: The Council has recommended a mechanism for public consultation in the delegated rule making process for significant rules8. The national food scheme in fact provides for extensive consultation and can be readily linked with the Council’s recommendations in this report. The consultative process also provides a means by which the problems of lack of parliamentary scrutiny may be partially overcome. 10.12. Under the National Food Authority Act, the Authority must advertise that it is considering a submission to draft a standard or it is proposing to draft a standard on its own initiative and invite public submissions9. The advertisement must be in the Commonwealth Gazette and in a newspaper circulating in each State and Territory. If it proceeds to draft a standard, it must then notify each person who made a submission, and appropriate government agencies, that it has prepared a draft standard and it will hold an inquiry to 7 See Chapter 4, paragraphs 4.1 to 4.11. 8 See Chapter 5, paragraphs 5.27 to 5.31. 9 Sections 14 and 22.

78

consider that draft10. Written submissions are again invited for that inquiry. Interested parties are not excluded from participating in the inquiry process if a submission was not made after the first invitation as a notice is again placed in the Gazette and newspapers circulating in each State and Territory. 10.13. At the end of the inquiry process, the Authority may proceed or it may abandon the draft standard. Where the proposal is abandoned, a further notice is placed in the Commonwealth Gazette and newspapers circulating in each State and Territory advising that the proposal is not to proceed, with the reasons. 10.14. The consultation mechanism in the national food scheme provides a valuable means for wide participation in the rule making process. This is important because it allows a variety of views to be obtained and is consistent with the principles of procedural fairness. Parliamentary scrutiny for the making of national food standards raises particular problems (see paragraph 10.16 below). Because of this, the Council believes that consultation prior to the making of a national food standard is all the more important. 10.15. The Council’s proposals for consultation in the rule making process go further than the procedures for the making of national food standards in that an explanatory statement, or ‘Rule Making Proposal’, is required. The making of food standards simply requires that a notice be given stating how further information may be obtained. The Council recognises that consultation for rules made under intergovernmental schemes may need to be varied taking into account the particular nature of the scheme. Nonetheless, where possible the consultation procedures set out in Chapter 5 of this report should apply. 10.16. Parliamentary scrutiny: A significant defect in the promulgation of instruments to give effect to uniform schemes is that Commonwealth, State and Territory parliaments generally have no opportunity to see and examine subordinate rules either before or after they are made. In the case of complex legislative schemes such as the national food standards scheme, there is no requirement for tabling and disallowance in any parliament. In other more straightforward schemes for uniform legislation, instruments may be tabled but parliaments are discouraged from taking action upon them in the interests of preserving the uniformity of the scheme. 10.17. The reasons why there is minimal or no parliamentary scrutiny of delegated legislative instruments under schemes of this kind is that the principles for scrutiny differ between parliaments and uniformity will not be achieved if a rule is disallowed in one parliament. The Council accepts that it is impracticable to apply the normal mechanisms for parliamentary scrutiny to them. Nevertheless, it points out that the result is to leave to the executive branch alone with power to make binding rules of general application. 10.18. One means of involving parliaments without interfering with the effectiveness of the cooperative arrangements is to require that the parliament for each participating jurisdiction be provided with the proposed new rule and supporting documentation at the time of public consultation. This would enable comment from parliamentary scrutiny committees without undermining the uniform nature of the proposed rule. Comments from the committees would be taken into account by the appropriate rule making body, such as the National Food Standards Council.

10 Sections 16 and 24.

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10.19. Access: National Food Standards become law through incorporation by reference in each State and Territory under complementary legislation. Official publication of food standards is in the Commonwealth Gazette, although the National Food Authority publishes a complete copy of the national food standards code in loose-leaf format. There are notorious problems of access to the Gazette and the Council does not regard this form of publication as adequate. The problem is compounded where an earlier standard is varied. The particulars of the variation are required to be set out in the Gazette but there is no requirement to set out the full text of the varied standard. Thus in these circumstances, a person would need to consult more than one Gazette to obtain a complete picture of law. To remedy this, publication of instruments made under intergovernmental schemes, including variations of the instruments, should be made in the Legislative Instruments Register. 10.20. Sunsetting: The Council has proposed that under the Legislative Instruments Act all instruments be sunsetted ten years after the principal instrument was first made. Even though the sponsoring agency may keep all rules under review on an ongoing basis, sunsetting provides a formal mechanism to ensure that rules do not become outdated. Rules made under intergovernmental schemes for uniform standards should similarly be kept under review. The means to achieve this should be a sunsetting requirement and the minimum standard should be the ten years proposed by the Council for delegated legislative instruments under the Legislative Instruments Act.

Conclusions

10.21. The Council acknowledges the importance of achieving uniformity in appropriate areas and the usefulness of inter-governmental arrangements for this purpose. In the interests of normal constitutional principles, however, attention should be paid to the structure of these arrangements and the way in which they are implemented. The particular aspect of these arrangements relevant for present purposes is the process of subordinate rule making. It was acknowledged earlier that parliamentary scrutiny of the traditional kind is not practicable in relation to these rules. Other principles may, however, be applied. 10.22. First, drafting of subordinate legislative instruments under inter-governmental schemes should always be undertaken by a professional drafter, or in the case of highly technical instruments, be settled with a professional drafter. This ensures the instruments will meet the high drafting standards in presentation, expression and consistency as required for all legislative instruments. 10.23. Secondly, any instrument promulgated under one of these schemes should be subject to mandatory consultation requirements. The mechanism proposed by the Council in Chapter 5 of this report should be adopted. Where this is not possible, taking into account the particular nature of the inter-governmental scheme, the consultation should be along the lines of that set out in the National Food Authority Act when a new instrument is made or when an existing instrument is revoked or varied. 10.24. A further requirement should be that the parliament of each jurisdiction involved should be informed before an instrument under one of these schemes is made, varied or revoked. This should take place at the same time that public consultation is undertaken. The instrument should be sent to each parliament for comment on whether the instrument would breach a term of reference of the delegated legislation committee of that parliament. Any comments should be taken into account by the Ministerial Council responsible for the scheme.

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10.25. To ensure access to any instrument made under an inter-governmental scheme, publication should be through the Legislative Instruments Register. It is important for the integrity of these schemes that there be an effective means of access to an updated copy of the instruments. 10.26. Finally, to ensure that instruments under these intergovernmental schemes are kept up to date, they should be subject to a sunsetting requirement ten years after first being made. Recommendation 31 (1) Where possible, the procedures recommended in this report for making,

publication and review of delegated legislation should apply to legislative instruments made under intergovernmental schemes for nationally uniform regulation.

(2) Where this is not possible, the following minimum standards should apply: • the instruments should be drafted by or be settled with professional drafters; • there should be mandatory consultation along the lines of that set out in the National

Food Authority Act when a new instrument is made or when an existing instrument is revoked or varied;

• this consultation should include notice to the parliament for each participating jurisdiction;

• the instruments should be published in the Legislative Instruments Register; and • the instruments should be subject to a sunsetting requirement ten years after the

principal instrument is first made.

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APPENDIX 1

LIST OF SUBMISSION MAKERS The following is a list of individuals, agencies and organisations who made submissions in response to the Council’s issues paper, ‘Rule Making by Commonwealth Agencies’, which was released for comment in July 1990. Australian Federal Police AUSTEL Australia Post Australian Broadcasting Tribunal Australian Customs Service Attorney-General’s Department Department of the Arts, Sport, the Environment, Tourism and Territories Department of Administrative Services Business Council of Australia Peter Bayne Patrick Byrt Civil Aviation Authority Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees Department of Community Services and Health (now the Department of Health, Housing and Community Services) Customs Agents Institute of Australia Confederation of Australian Industry Senator the Honourable Peter Durack QC Department of Defence Michael Dowling Senator the Honourable Gareth Evans QC Department of Employment, Education and Training Department of Foreign Affairs and Trade Freehill, Hollingdale and Page Department of Finance John Fitzgerald Gardiner & Co - Solicitors and Attorneys Department of Industry, Technology and Commerce Department of Immigration, Local Government and Ethnic Affairs Department of Industrial Relations Institute of Patent Attorneys of Australia Law Council of Australia Law Institute of Victoria

82

Legal and Constitutional Committee (Vic) Macquarie Legal Centre B J McMahon, Deputy President AAT Merit Protection and Review Agency The Honourable Justice David K Malcolm, Chief Justice WA Office of Parliamentary Counsel (Commonwealth) Office of Parliamentary Counsel (New South Wales) Office of the Solicitor-General of Tasmania Department of the Prime Minister and Cabinet Public Service Commissioner Department of Primary Industries and Energy Regulation Review Committee (NSW) Senate Standing Committee on Regulations and Ordinance Senate Standing Committee for the Scrutiny of Bills Student Assistance Review Tribunal (WA) Department of Social Security SoftLaw Community Projects Department of Transport and Communications Department of Veterans’ Affairs Welfare Rights Centre (Brisbane) R P D Wright Worksafe Australia Mark Zanker

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APPENDIX 2

DIVERSITY OF INSTRUMENTS: AGENCY RESPONSES TO ISSUES PAPER

The following table sets out the responses of agencies to the Council’s Issues Paper, Rule Making by Commonwealth Agencies. The table notes the type, number and exposure to disallowance of delegated instruments. *Note: This table represents information provided by agencies. Some agencies provided more complete information than others.

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DIVERSITY OF INSTRUMENTS

AGENCY RESPONSES TO ISSUES PAPER (PARAGRAPH 13)

Agency Enactment/Authority Types of Instruments Number Disallowable Australian Federal Police Australian Federal Police Act 1979

Administrative

General orders and instruction (s14) Determination (s23) Delegations (s15) Administrative circulars Subordinate instructions Memoranda Authorisations Designations Directions Declarations

11

U/K

2

22

30

1

10

1

1

1

N

N

N

N

N

N

N

N

N

N AUSTEL Telecommunication Act 1991

Directions (s46, 79, 85, 119, 126(2) & 5, 181, 189, 201, 233(1), 282(1), 343, 344, 400 Determinations (s154(2)) Orders (s281(6))

N

N

N

85

Codes of practice (s77) Y Agency Enactment/Authority Types of Instruments Number Disallowable

Technical standards determination (s244, 246) Ministerial directions (s249, 250) Ministerial directions (s295)

Y

Y

N Australia Post Australian Postal Corporation Act 1989

Terms and conditions of postage (s32) (replaced by the postal by-laws)

N

Australian Broadcasting Tribunal

Broadcasting Act 1942

Program standards (s16) Orders (s17) Directions Licence conditions

5

Not quantifiable

Not

quantifiable

Not quantifiable

N

Y

N

N

Australian Customs Service Customs Act 1901

Customs notices (s273, 274) Guidelines for tenders for concessional entry Commercial tariff concession orders (s269c) By-laws (s271) Determination (s273)

Unknown

Unknown

10 500

300

N

N

N

86

Agency Enactment/Authority Types of Instruments Number Disallowable Attorney-General’s Department

Corporations Act 1989

Accounting standards (s283) Stock exchange approval (s769) Stock exchange rules (s774)

Y N but

disallowable by Ministerial

Council Foreign Acquisition and Takeovers Act

1975 Trade Practices Act 1974

Orders (s24) Minister’s consent to the use of extra-territorial conduct in private litigation – (s5(3), 5(4) Direction in writing by the Chairman Chairman’s notice to the Minister disclosing pecuniary interest – s17(3) Minister’s direction to the TPC s29 Determination granting an authorisation – s88-92 Notifications powers

N

N

N

N

N

N

N Foreign Proceedings (Excess of

Jurisdiction) Act 1984

Orders or instruments (s7, 9, 11, 12, 13 & 14)

Y

Bills of Exchange Act 1909 Marine Insurance Act 1909

Nil Nil

87

Cheques & Payment Orders Act 1986

Notices (to specify designated places) s65 & 109

Agency Enactment/Authority Types of Instruments Number Disallowable Department of Administrative Services

Audit Act 1901

Purchasing guidelines

1 set

Department of the Arts, Sport, the Environment, Tourism and Territories

Proclamations Annual operational plans Arrangements Codes of practice Declarations Directions Extensions of CFC or half quarter period Instruments of disallowance Orders Plans Plans of management

549

43

1

1

3

0

0

0

1

2

6

88

Requirements Schemes Strategic plans Temporary licence Zoning plans

No details available

0

1

1

5

Civil Aviation Authority

Air Navigation Act 1920

Civil aviation orders (being progressively repealed and where necessary, re-enacted as regulations)

20 000

N

Comcare Commonwealth Employees’ Rehabilitation & Compensation Act 1988

Ministerial notices of declaration and specification

1

Y

Department of Community Services and Health

National Health Act 1954

Charter of precedent rights

Total for DCS&H

estimated to be in excess

of 150

Therapeutic Goods Act 1989

Orders in Council Therapeutic goods orders Delegation Determination

89

Appointments Conditions of grants and funding Principles Objectives Standards Declaration Approach Direction Certification Guidelines Agreements Undertakings Notice Accreditations

Department of Defence Defence Act 1903

Criteria for registration Defence force rules and by-laws Defence Force (superannuation interest arrangements) determination (s588 & 58H)

1/Year

N

90

Ministerial orders (s123 Defence Act)

0

N

Department of Employment, Education and Training

States Grant (Schools Assistance) Act 1988 Higher Education Funding Act 1988 ANU Act 1946 University of Canberra Act 1989 Australian Maritime College Act 1978

Commonwealth programs for schools – administration guidelines Funding classification categories Ministerial guidelines (s29) Ministerial guidelines (s31) Ministerial guidelines (s32(5))

1 set

1

N

N

Higher Education Funding Act 1988 ANU Act 1946 University of Canberra Act 1989 Australian Maritime College Act 1978 Student Assistant Act 1973

Notice to State Ministers (s3) Gazette notices (s43) University Council Statutes Ministerial determination (s7) Ministerial determinations for student assistance (s10) Ministerial guidelines concerning overpayment (s44)

1

N

N

N

N

N

Y

Department of Finance Ministerial directions - finance directions - overseas directions directions to Secretaries

20-30 per

year 5-10 per

year

91

Ministerial directions to Delegates Financial statement guidelines Finance pay system user manual Finance ledger system manual

10-20 per year

10-15 per

year

5-10 per year

N

N

N

N

Ministerial guidelines (administrative services)

Unknown

N

Department of Foreign Affairs and Trade

Passport Act 1938

Ministerial guidelines No other information provided

N

Department of Industry, Technology and Commerce

National Measurements Act 1960

Determinations (s8A) Proclamations Ministerial guidelines Ministerial directions

Unknown

N

N

N

N Department of Immigration, Local Government and Ethnic Affairs

Migration Act 1958

Gazette notice for - proclaiming airports (s4(4)) - Proclaiming protection zones

(s4(11)) Ministerial approval for place of

Unknown

N

N

N

92

custody (s11) Ministerial determination on visas (s17(4)) Ministerial determination on pre-cleared flights (s19) Ministerial determination visa and entry permit processing (s28(1) and 40) Ministerial notice setting numbers for visas and entry permits (s32 and 42 (1))

N

N

N

N

Ministerial determination on custody costs (s66(5)) Proclamation by Governor-General to appoint port as a boarding station (s84(1)) Appointment of prescribed authorities (s95) Ministerial exemption (s106) Ministerial declaration of notified data base (s169) Ministerial approval of forms (s175) Instrument of delegation (s176)

N

N

N

N

N

N

N

93

Policy directions issued by Minister (s179) Ministerial declaration on priority list of occupations (reg 2) Ministerial declaration on natural disasters and political upheavals (reg 40) Ministerial declaration on professional and technical equivalent occupation lists (reg 146)

N

N

N

N

Ministerial consent and agreement to provide information (reg 148A) Gazette notice whether country specified information (reg 148A)

N

N

Department of Industrial Relations

Public Service Act 1922 Defence Act 1903

Determinations (s82D) Determination (s294(4)) Determination (s81B(5)) Determination (s58B) (s58H – made by

102 (1985) 104 (1986) 128 (1987) 266 (1988) 180 (1989) 233 (1990)

- -

325 (1988 &

Y

N

Y

94

DFRT)

1989)

Merit Protection and Review Agency

Merit Protection (Australian Government Employees) Act 1984

Guidelines for conduct of appeal (s8)

1

N

Agency Enactment/Authority Types of Instruments Number Disallowable Public Service Commission Public Service Act 1922

Commission notice concerning matters relating to appointment transfer and promotion (s33A(1)) Determinations (s33A(1A)) Commission notice concerning training for special positions (s53A) Prime Ministerial notices on continuation of certain employees (s42A) Commission notices on continuation of certain employees (s83AB) Commission notices on continuation of employees (s83AD)

6/year

6/year

1/year

1/year

1 year

1 year

N

N

N

N

N

N

Department of the Prime Minister and Cabinet

Department of Primary Meat Inspection Act 1983 Orders (s37) Unknown Y

95

Industry

Import Control Act 1982 Australian Meat & Livestock Corporation Act 1977 Quarantine Act 1908

Orders (s25) Directions orders (S16M) (s16N) Proclamations (s12 & 13)

Unknown

Unknown

Unknown

Y

Y N

N

Agency Enactment/Authority Types of Instruments Number Disallowable Nuclear Non-Proliferation (Safeguards)

Act 1987 Fisheries Act 1991 Torres Strait Fisheries Act 1984

Ministerial declarations (s11) Management plans (s17) Notices (s14) Proclamation (s15) Notice (s16)

Unknown

Y

Y

N N N

Department of Social Security

Social Security Act 1991

Proclamations (s15) Determination of rate of return for market linked investment (s1087) Ministerial policy statement (s1297) Ministerial guidelines for Secretary to divulge information in the public interest (s1315)

Total for DSS: 21

N

96

Ministerial directions to Secretary to waive recovery of debt (s1237)

Department of Transport and Communications

Air Navigation Act 1920

Air navigation orders (reg 8) Directions by Secretary Ministerial order (reg118) Directions by Secretary (reg 274) Secretary’s power to designate (reg 309)

Unknown

N

N

N

N

N

Agency Enactment/Authority Types of Instruments Number Disallowable Airports (Business Concessions) Act

1959 Civil Aviation Act 1988 Federal Airports Corporation Act 1986

Proclamations about the application of the Act See Civil Aviation Authority Ministerial notice to declare airports (s25 and 27) Ministerial notice to declare places as airports (s26) Ministerial declaration on Commonwealth agreements (s33) Ministerial directions to FAC (s40) Ministerial directions on terms and conditions of loans (s43, 47) Ministerial determination for loan

3

1

N

N

N

N

N

N

N

97

repayments (s44) Ministerial notice on non-payment of stamp duty (s45) Ministerial direction on payment of dividend (s46) Treasurer’s determination relating to borrowings Ministerial over-ride power on prices determination

N

N

N

N

Agency Enactment/Authority Types of Instruments Number Disallowable By-law power (s73)

Y

Australian Bicentennial Road Development Trust Fund Act 1982 Australian Centennial Roads Development Act 1988

Declaration of rates (s5) Making of standards (s6) Declaration of roads (s4, 5, 6) Declaration of railways (s7) Declaration of approved organisations (s8) Determination of charge rate (s10) Guidelines for distribution of funds (s37)

N

N

N

N

N

Y

N

98

Australian National Railways Commission 1983

Determination of terms and conditions of employment (s38) By-laws (s79)

N

Y

Explosives Act 1961 Explosives regulation Explosive areas regulation Interstate road transport regulations

Orders (s16) Orders (Ministerial) (reg 70) Orders (Ministerial) (reg 55) Ministerial certification charges (reg 36)

Y

N

Motor Vehicle Standards Act 1989 Motor vehicle standards regulations Navigation (orders) regulations Protection of the Sea (Powers of Intervention) Act 1981 Protection of the Sea (Prevention of Pollution from Ships) Act 1983

Orders determining national standards (s7) Determination of procedures for manufacturers (s9) Ministerial directions to inspectors (s25) Ministerial approval for procedures (reg 4) Orders (reg 3) Orders (reg 24) Orders (reg 34)

Y

N

N

Y

Y

Y

99

Road Grants Act 1974 Road Grants Act 1980 States Grants (Roads) Act 1977

Variation of schedules amounts (s8) Declaration of classes of highways (s5) Making of standards (s6) Principles of allocation for local roads (s13) Variation of amounts specified in schedule (s8, s10, s15) Declaration of highways (s5) Making of standards (s6)

N

N

N

N

N

N

N Variations of amounts specified in

schedules (s18, 19)

N

States Grants (Urban Public Transport) Act 1978

Declaration of urban area (s4) Notice of allocation of additional funds (s8)

N

N

Transport (Planning and Research) Act 1974 Trade Practices Act 1974 Urban Public Transport (Research and Planning) Act 1974 Radiocommunications Act 1983

Declaration of urban areas (s4) Declaration of designated bodies (shipping) (s10.03) Ministerial declaration of urban areas (s5) Proclamations (s2)

0

N

Y

N

N

100

Ministerial standards (s9) Advisory guidelines (s16) Spectrum plan (s18) Frequency band plan (s19) Proclamation to lift pay TV embargo (s24A) Guidelines for conditions on transmitter licences (s25)

0

Y

N

Y

Y

N

Y

Agency Enactment/Authority Types of Instruments Number Disallowable

Broadcasting Act 1942 Australian Broadcasting Corporation Act 1989

Proclamation for radiocommunication emergency (s40) Orders for radiocommunication emergency (s41) Guidelines for radiocommunications emergency (s42) Minister’s declaration prohibiting use of radio device (s66A) See entry for ABT Ministerial notification (s33, s46, s48, s55)

0

0

0

0

N

Y

Y

Y

N

101

Ministerial notification (s51, s60, s71, s79, s80) Ministerial notification (s40, s49, s52, s54, s55, s80)

N

N

Telecommunications Act 1991

AUSTEL directions to carriers (s46) Notification of government policy (s89) Ministerial directions to delegate (s61) Code of practice on misuse of market power (s77) Ministerial directions to AUSTEL (s106) National code about exempt activities (s117) Written directions about lost liability (s121) Ministerial principles for class licences (s204)

N

N

N

Y

Y

Y

Y

Y

Ministerial direction on technical standards (s244) Technical standards (s244) Ministerial directions about permits and licences

Y

Y

Y

102

AUSTEL notice limiting regulations on customer cabling (s280) Ministerial declaration on universal carrier service (s290) Ministerial directions about net cost area (s295) AUSTEL determinations about net universal service cost (s302)

Y

Y

N

Y

Department of Veterans’ Affairs

Veterans’ Entitlements Act 1986

Treatment principles (90) Guide to the assessment of rates of veterans’ pensions (s29) Repatriation pharmaceutical benefits scheme (s91)

N

Y

N

Agency Enactment/Authority Types of Instruments Number Disallowable Veterans children education scheme

(s117) Vehicle assistance scheme (s105)

N

N Worksafe National Occupational Health and

Safety Commission Act 1985

National standards and codes of practice (s38) Guidance notes

8

7

N

N

Industrial Chemicals (Notification and Assessment) Act 1989

Australian inventory of chemical substances (s211) Ministerial permits (s30)

1

N

N

103

Ministerial declaration (s41) Ministerial approval (s43) Declaration of chemical as priority (s51) Ministerial notice (s52) Director’s list of chemicals as priority (s54) Ministerial notice prohibited activity (s61) Director’s notice for secondary notification (s65)

N

N

N

N

N

N

N

104

Agency Enactment/Authority Types of Instruments Number Disallowable

Director’s list of chemicals (s71) Director’s list of industrial chemicals (s74) Ministerial variations (s105) Director’s notice to exporters (s106)

N

N

Y

N

105

APPENDIX 3

TERMS OF REFERENCE OF AUSTRALIAN DELEGATED LEGISLATION COMMITTEES

Commonwealth1

The Committee scrutinises delegated legislation to ensure: (a) that it is in accordance with the statute; (b) that it does not trespass unduly on personal rights and liberties; (c) that it does not unduly make the rights and liberties of citizens dependent upon

administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal; and

(d) that it does not contain matter more appropriate for parliamentary enactment.

New South Wales2

9(1) The functions of the Committee are: (a)...; (b) to consider whether the special attention of Parliament should be drawn to any such

regulation on any ground, including, any of the following: (i) that the regulation trespasses unduly on personal rights and liberties; (ii) that the regulation may have an adverse impact on the business community; (iii) that the regulation may not have been within the general objects of the

legislation under which it was made; (iv) that the regulation may not accord with the spirit of the legislation under which

it was made, even though it may have been legally made; (v) that the objective of the regulation could have been achieved by alternative and

more effective means; (vi) that the regulation duplicates, overlaps or conflicts with any other regulation or

Act; (vii) that the form or intention of the regulation calls for elucidation; or (viii) that any of the requirements of sections 4, 5 and 6 of the Subordinate Legislation

Act 1989 or of the guidelines and requirements in schedules 1 and 2 to that Act, appear not to have been complied with to the extent they were applicable in relation to the regulation.

Victoria3

14.(1) Where the Legal and Constitutional Committee considers that a statutory rule laid before Parliament under section 5 - (a) does not appear to be with the powers conferred by the Act under which the

statutory rule was made; (b) without clear and express authority being conferred by the Act under which the

statutory rule was made - 1 Standing order 23(3), Senate Standing Orders. 2 Section 9(1)(b) Regulation Review Act 1987 (NSW). 3 Section 14(1) Subordinate Legislation Act 1962 (VIC).

106

(i) has a retrospective effect; (ii) imposes any tax, fee, fine, imprisonment or other penalty; (iii) purports to shift the onus of proof to a person accused of an offence; or (iv) provides for the sub-delegation of powers delegated by the Act;

(c) does not appear to be within the general objectives, intention or principles of the Act

under which the statutory rule was made; (d) makes unusual or unexpected use of the powers conferred by the Act under which the

statutory rule was made having regard to the general objectives, intention or principles of that Act;

(e) contains any matter or embodies any principles, which matters or principles should properly be dealt with by an Act and not be subordinate legislation;

(f) unduly trespasses on rights and liberties of the person previously established by law; (g) unduly makes rights and liberties of the person dependent upon administrative and

not upon judicial decisions; (h) is inconsistent with principles of justice and fairness; (i) requires explanation as to its form or intention; (j) has been prepared in contravention of any of the provisions of this Act or of the

guidelines prepared under section 11 and the contravention is of a substantial or material nature; or

(k) is likely to result in costs being incurred directly and indirectly in the administration of and compliance with the statutory rule which outweigh the likely benefits sought to be achieved by the statutory rule -

the Legal and Constitutional Committee may report to each House of Parliament as provided in subsection (2).

Queensland4

The Committee shall, with respect to the regulations, consider - (a) whether the regulations are in accord with the general objects of the Act pursuant to

which they are made; (b) whether the regulations trespass unduly on rights previously established by law; (c) whether the regulations contain matter which, in the opinion of the Committee,

should properly be dealt with in an Act of Parliament; (d) whether for any special reason the form or purport of the regulations call for

elucidation; (e) whether the regulations unduly make rights dependant upon administrative and not

upon judicial decisions.

South Australia5

The Committee shall with respect to any regulations consider - (a) whether the regulations are in accord with the general objects of the Act pursuant to

which they are made; (b) whether the regulations unduly trespass on rights previously established by law; (c) whether the regulations unduly make rights dependent upon administrative and

upon judicial decisions; and

4 Resolution of the Legislative Assembly, 6 March 1990. 5 Standing Order 26, Joint Standing Orders, South Australian Parliament.

107

(d) whether the regulations contain matter which, in the opinion of the Committee, should properly be dealt within an Act of Parliament;

Western Australia6

It is the function of the Committee to consider and report on any regulation that: (a) appears not to be within power or not to be in accord with the objects of the Act

pursuant to which it purports to be made; (b) unduly trespasses on rights and liberties of the person previously established by law; (c) contains matter which ought properly to be dealt with by an Act of Parliament; (d) unduly makes rights dependent upon administrative, and not judicial, decisions.

Tasmania7

8(1) The functions of the Committee are - (a) to examine the provisions of every regulation, with special reference to the question

whether or not - (i) the regulation appears to be within the regulation-making power conferred by,

or in accord with the general objects of, the Act pursuant to which it is made; (ii) the form or purport of the regulation calls for elucidation; (iii) the regulation

unduly trespasses on personal rights and liberties; (iii) the regulation unduly makes rights dependent administrative decisions and not

on judicial decisions; or (iv) the regulation contains matters that, in the opinion of the Committee, should

properly be dealt with by an Act and not by regulation; and (b) to make such reports and recommendations to the Legislative Council and the House

of Assembly as it thinks desirable as the result of any such examination.

Northern Territory8

The Committee shall, with respect to regulations, rules and by-laws consider - (a) whether the regulations, rules or by-laws are in accordance with the general objects

of the Act pursuant to which they are made; (b) whether the regulations, rules or by-laws trespass unduly on personal rights and

liberties; (c) whether the regulations, rules or by-laws unduly make rights and liberties of citizens

dependent upon administrative and not upon judicial decisions; (d) whether the regulations, rules or by-laws contain matter which, in the opinion of the

Committee, should properly be dealt with in an Act; (e) whether the regulations, rules or by-laws appear to make some unusual or expected

use of the powers conferred by the statute under which they are made; (f) whether there appears to have been unjustifiable delay in the publication or laying of

the regulations, rules or by-laws before the Assembly; (g) whether for any special reason the form or purport of the regulations, rules or by-

laws call for elucidation.

6 Resolution of the Legislative Assembly and the Legislative Council, 2 June 1987. 7 Section 8 Subordinate Legislation Committee Act 1969 (TAS). 8 Standing Order 21(2), Standing Orders, Legislative Assembly of the Northern Territory.

108

Australian Capital Territory9

The Committee shall with respect to any instrument of a legislative nature (including a regulation, rule or by-law) made under an Act consider whether the instrument - (a) is in accord with the general objects of the Act under which it is made; (b) unduly trespasses on rights previously established by law; (c) makes rights, liberties and/or obligations unduly dependent on non-reviewable

decisions; and (d) contains matter which in the opinion of the committee should properly be dealt with

in an Act of the Legislative Assembly.

9 Minutes of Proceedings No 25, 19 October 1989.

109

INDEX Aboriginal and Torres Strait Islander Commission Act 1989 6.7 Acts of Parliament distinguished from delegated legislation 2.1-2.33 Acts Interpretation Act 1901 6.3, 6.6, 6.28, 6.49, 8.4, 8.27, 8.29, 8.32 Administrative Decisions (Judicial Review) Act 1977 3.20, 3.22 Approval of delegated legislation 6.11, 6.12-6.15 Attorney-General’s Department 4.3, 4.5, 4.7, 4.9 6.8, 6.18, 8.22 Australian Broadcasting Tribunal 5.7 Bankruptcy Act 1966 9.11 Campbell, Professor Enid 9.20 Compact Disk - Read Only Memory (CD-ROM) 8.23 Civil Aviation Act 1988 2.10 Civil Aviation Authority 4.3 Codes of practice 6.50, 6.55 Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees 5.8 Constitution, inherent power to make rules of court 9.3 Consultation and delegated legislation

adequacy of 6.23 ‘captured’ consultation 5.28 current requirements for the Commonwealth 5.7-5.9 exceptions to 5.31-5.39

advance notice an advantage 5.36 fees and charges 5.33 minor machinery rules 5.34 public interest 5.37-5.38 rules of court 5.39 statutory consultation already required 5.35

for rules in early period of Federation 5.5-5.6 form of 5.47 memorandum to Parliament 5.48 New South Wales

exceptions 5.24 procedure 5.25

procedure for 5.42-5.48 notification 5.42-5.43

110

‘Rule Making Proposal’ 5.44-5.46 Consultation and delegated legislation (cont)

proposals for the Commonwealth 5.27-5.48 ‘second round’ consultation 5.40-5.41 Victoria 5.10-5.23

advantages of 5.21-5.22 assessment of 5.17-5.23 exceptions 5.13-5.14 objections to 5.18 procedure for 5.12

Delegated legislation

classes of 3.14, 4.15-4.17 current problems 1.23-1.24 definitive text of 8.30-8.31 distinguished from Act of Parliament 2.1-2.33

practice of 2.10-2.13 existing guidelines to make 2.3-2.9

application of guidelines 2.10-2.13 history 1.4-1.5 judicial review of 1.15 made under inter-governmental schemes 10.1 legislative instruments requirements 10.8

access 10.19 consultation 10.11-10.15 drafting 10.10 parliamentary scrutiny 10.16-10.18 sunsetting 10.20

new forms of 1.16-1.22 new regime governing 1.25-1.30 power to make 1.7-1.8 pressure to use 1.6 proposed criteria to make 2.14-2.15

amendments to Acts by 2.33 appropriation 2.27-2.28 fees and charges 2.26 offence and penalty provisions 2.21-2.24 policy, questions of 2.16-2.18 procedural matters 2.29-2.32 rights and liberties 2.19-2.20 taxation provisions 2.25

safeguards against abuse of 1.9-1.14 sunsetting of 7.1-7.18

Disallowance 6.10, 6.12-6.15

deferral of 6.42-6.43 partial 6.44-6.48 period for 6.33

Drafting of delegated legislation 4.1-4.14

central arrangements for 4.10 responsibility for 4.1-4.11 statutory responsibility proposed for 4.11-4.12 statement to Parliament on 4.13-4.14

111

Executive Council 5.45 Family Law Act 1975 9.5, 9.13 Federal Airports Corporation Act 1976 8.11 Federal Court of Australia Act 1976 9.5, 9.11 Governor-General 5.45 Great Barrier Reef Marine Park Authority zoning plans 5.7 Hewart, Lord 1.5 High Court of Australia Act 1979 9.5, 9.8 High Court Procedure Act 1903 9.6 Incorporated material 6.49-6.56

problems with 6.51-6.54 publication of 8.32-8.34 reasons for 6.51

Judiciary Act 1903 9.5, 9.6 Legal and Constitutional Committee (Victoria) 6.25 Legislation Handbook 2.5 Legislative function 1.1-1.3

contrast with executive function 1.2 Legislative Instruments Act proposed 1.29, 3.1

ambit of, options for 3.12-3.23 Legislative instruments, characteristics of 3.2-3.3

binding nature 3.7-3.9 determinative of content of law 3.5-3.6 general application 3.10-3.11

Legislative Instruments Register 3.21, 7.18, 8.20-8.26 ‘Macklin’ clause 5.49-5.52 Ministerial undertakings 6.39-6.41 National Food standards 10.3-10.6

legislative character 10.7 National Food Authority Act 1991 10.3 Nomenclature, see Delegated legislation, classes of Office of Legislative Drafting 4.2-4.14, 6.7, 6.8, 8.9, 8.17, 8.22, 8.26, 9.14

112

Office of Parliamentary Counsel 2.12-2.13, 3.16, 4.3, 4.8 Policy, review of 6.24-6.27 Primary Industries and Energy, Department of 8.15 Procedural fairness, principles of 5.2 Public interest, exception to consultation 5.37-5.39 Publication of delegated legislation

conclusion 8.18-8.19 commercial 8.25 non-statutory 8.14-8.17 statutory, other 8.13 statutory rules 8.4-8.12

Regulation impact statement 5.44 Regulation Review Act (1987) NSW 9.28 Regulation Review Committee (NSW) 7.5, 9.28 Regulatory impact statement 5.11, 5.24, 9.28, 9.29 Rule, proposed use of word 4.18 Rules of court

Character of 9.22, 9.23 independence, threat to 9.40-9.43 parliamentary scrutiny and publication 9.32-9.33 resources requirements 9.49-9.52

distinguished from delegated legislation 9.15-9.23 Family Court 9.12-9.13, 9.26 Federal Court 9.11 High Court 9.6-9.10, 9.25 history of 9.2 New South Wales 9.27-9.30 power to make 9.2-9.4

courts, made by 9.16-9.17 inherent 9.18-9.21

Victoria 9.27-9.30 Legislative Instruments Act and 9.31-9.54

conclusions and sunsetting 9.35-9.39 expedition 9.44-9.46

Senate Standing Committee and Constitutional and Legal Affairs 9.12, 9.33 Senate Standing Committee on Regulations and Ordinances 2.6, 4.8, 6.16-6.27, 6.39, 6.46, 8.16

terms of reference 6.17 Senate Standing Committee for the Scrutiny of Bills 2.7-2.9, 3.19, 3.22 Scrutiny of delegated legislation 6.1-6.4

procedure for 6.28-6.35

113

Social Security Act 1991 2.10 Standing referral of instruments 6.36-6.38 Statutory Rule Publication Act 1903 1.22, 8.4

shortcomings of 8.10, 8.11 Sunsetting of delegated legislation

New South Wales 7.4-7.5 Proposals for the Commonwealth 7.9-7.18 Victoria 7.6-7.8

Tabling of delegated legislation 6.5-6.8

manipulation of 6.31 timetable for 6.32-6.35

Therapeutic Goods Act 1989 6.11 US Federal Register 8.20