LEGISLATIVE ASSEMBLY OF QUEENSLAND

SCRUTINY OF LEGISLATION COMMITTEE

Annual Report

1995 - 1996

October 1996

Report No. 1 SCRUTINY OF LEGISLATION COMMITTEE Membership and Staff

48TH PARLIAMENT FIRST SESSION

CHAIRMAN: Mr J H Sullivan MLA, Member for Caboolture

DEPUTY CHAIRMAN: Mr G E Malone MLA, Member for Mirani

OTHER MEMBERS: Mr S D Bredhauer MLA, Member for Cook Mrs E A Cunningham MLA, Member for Gladstone Mr N S Roberts MLA, Member for Nudgee Hon D Wells MLA, Member for Murrumba Mr L S Woolmer MLA, Member for Springwood

RESEARCH DIRECTOR: Ms Louisa Pink EXECUTIVE ASSISTANT: Mrs Lisa Shuttleworth

48TH PARLIAMENT SECOND SESSION

CHAIRMAN: Mr J A Elliott MLA, Member for Cunningham

DEPUTY CHAIRMAN: Mr J H Sullivan MLA, Member for Caboolture

OTHER MEMBERS: Mrs E A Cunningham MLA, Member for Gladstone Mr N S Roberts MLA, Member for Nudgee Mr F J Tanti MLA, Member for Mundingburra Hon D Wells MLA, Member for Murrumba

RESEARCH DIRECTOR: Ms Louisa Pink SENIOR RESEARCH OFFICER: Mr Simon Yick EXECUTIVE ASSISTANT: Mrs Lisa Shuttleworth MEMBERS OF THE SCRUTINY OF LEGISLATION COMMITTEE

48TH PARLIAMENT SECOND SESSION

Back Row L to R: Neil Roberts MLA, Jon Sullivan MLA (Deputy Chairman), Front Row L to R: Liz Cunningham MLA, Tony Elliott MLA (Chairman), Frank Tanti MLA Inset: The Honourable Dean Wells MLA Table of Contents

TABLE OF CONTENTS

CHAIRMANS FOREWORD ...... I

1. ESTABLISHMENT AND TERMS OF REFERENCE ...... 1 ESTABLISHMENT OF THE SCRUTINY OF LEGISLATION COMMITTEE...... 1 Recognising the Need for a Scrutiny of Legislation Committee ...... 1 Establishment of the Committee...... 1 TERMS OF REFERENCE ...... 2 Role of the Committee ...... 2 Area of Responsibility ...... 2 Fundamental Legislative Principles...... 4 Sufficient Regard to Fundamental Legislative Principles ...... 4 Does the Committee enquire into matters of policy? ...... 6 Precedent ...... 7 Avoiding Politics...... 7 2. SCRUTINY OF BILLS - FIRST YEAR IN REVIEW...... 9 OVERVIEW OF THE COMMITTEE’S SCRUTINY OF BILLS...... 9 COMMENT UPON SIGNIFICANT ISSUES ARISING DURING THE YEAR ...... 10 Sufficiently clear and precise drafting? - section 4(3)(k) Legislative Standards Act 1992 ...... 11 unambiguous drafting...... 11 drafting practices of concern...... 11 Legislation adversely affecting rights and liberties, or imposing obligations retrospectively...... 12 Delegation of administrative power only in appropriate cases and to appropriate persons ...... 12 Right to silence ...... 13 Special or transitional regulation making power ...... 15 Whether there had been an appropriate delegation of legislative power ...... 16 Whether rights and liberties would be retrospectively affected or obligations retrospectively imposed16 Whether the clause allowed amendment of an Act only by another Act (“Henry VIII clause”)...... 16 IMPACT OF THE SCRUTINY OF LEGISLATION COMMITTEE ON PRINCIPAL LEGISLATION IN QUEENSLAND...... 17 3. SCRUTINY OF SUBORDINATE LEGISLATION - YEAR IN REVIEW ...... 19 GENERAL OVERVIEW ...... 19 Enforcement of fundamental legislative principles ...... 20 RESULTS OF SCRUTINY OF SUBORDINATE LEGISLATION...... 20 Statistics on the results of scrutiny of Subordinate Legislation...... 21 4. MONITORING THE OPERATION OF DESIGNATED LEGISLATION ...... 23 BACKGROUND...... 23 PROVISIONS OF THE LEGISLATIVE STANDARDS ACT 1992...... 23 Meaning of Fundamental Legislative Principles (FLPS)...... 23 Explanatory Notes ...... 24 Explanatory notes for Bills ...... 24 Explanatory notes for significant subordinate legislation...... 25 Table of Contents

PROVISIONS OF THE STATUTORY INSTRUMENTS ACT 1992...... 25 GUIDELINES FOR REGULATORY IMPACT STATEMENTS...... 26 Background ...... 26 When is an RIS required? ...... 26 Contents of a regulatory impact statement ...... 28 When is preparation of an RIS not necessary?...... 28 Monitoring of the RIS Guidelines by the Committee...... 29 Experience of the New South Wales Regulation Review Committee ...... 31 Experience of the Victorian Scrutiny of Acts and Regulations Committee...... 31 Review of the first 12 months of operation of the Queensland RIS guidelines...... 32 Sufficiency of Part 5 - Guidelines for RISs...... 34 Results of general monitoring of RIS Guidelines...... 35 5. INQUIRIES INITIATED BY THE SUBORDINATE LEGISLATION COMMITTEE ...... 37 BACKGROUND...... 37 Henry VIII Report ...... 38 Scrutiny of Fees in Subordinate Legislation...... 38 The Current Status of the Doctrine of Ultra Vires in Queensland...... 38 Matter more appropriate to subordinate legislation...... 38 Effective scrutiny of National Scheme Legislation...... 38 FEES IN SUBORDINATE LEGISLATION...... 39 Background ...... 39 Terms of Reference...... 40 Power to impose fees ...... 40 Difference Between Taxes and Fees ...... 40 Should the Executive be empowered to impose taxes? ...... 41 Power to tax in subordinate legislation ...... 41 Administrative requirements in the fee imposing process ...... 42 Approach adopted by this Committee ...... 43 Issues raised by the Committee ...... 43 Applicability of the protocol ...... 43 Example: Fruit Marketing (Committee of Direction Levies) Amendment Regulation (No. 1) SL No. 360 of 1994...... 44 Non-uniformity ...... 44 Example: Ambulance Service Amendment Regulation (No. 1) 1995, SL No. 159 of 1995 ...... 44 Insufficient Explanation...... 45 Example: Industrial Court Amendment Rules (No. 1) 1995, SL No. 191 of 1995...... 45 Example: Queensland Marine (Registration, Survey, Equipment and Load Line) Regulation 1987 (as amended by the Department of Transport (Variation of Fees) Amendment Regulation (No. 1) 1995), SL No. 220 of 1995...... 45 Unclear Approval ...... 46 Example: Registration of Births, Deaths and Marriages Amendment Regulation 1995, SL No. 319 of 1995...... 46 Typographical or Administrative Error...... 47 Example: Consumer Affairs (Fees and Charges) Amendment Regulation (No. 1) 1995, SL No. 160 of 1995...... 47 Example: Transport Operations (Road Use Management) Regulation 1995, SL No. 159 of 1995...... 47 Requirement for the preparation of regulatory impact statements ...... 47 General review of the RIS requirements ...... 48 Background of s. 46(1)(j) exemption ...... 48 Table of Contents

Should any amendment (increase) of fees beyond the CPI level be regarded as one which is within “announced government policy”?...... 49 Should the imposition of new fees, charges or taxes not be regarded as “amendment”?...... 49 Recommendations...... 50 MATTER APPROPRIATE TO SUBORDINATE LEGISLATION?...... 50 Background ...... 50 What is the nature of these powers?...... 51 South Bank Corporation Amendment By-Law (No. 1) 1994, SL No. 144 of 1994...... 51 Nature Conservation Regulation 1994, SL No. 473 of 1994 ...... 52 Sufficient regard to the rights and liberties of individuals...... 53 Recognising the rights and liberties of individuals...... 53 Administrative powers sufficiently defined ...... 54 Inquiries by other bodies ...... 56 Committee’s observations...... 56 Sufficient regard to the institution of Parliament ...... 56 Appropriate delegation of legislative power...... 56 Matters appropriate to subordinate legislation...... 57 Attempt to include these powers in subordinate legislation subject to a sunset clause ...... 58 COMMITTEE’S CONCLUSIONS ON THE INCLUSION OF POWERS AFFECTING RIGHTS IN SUBORDINATE LEGISLATION...... 59 6. ADMINISTRATIVE MATTERS...... 61 EXPENDITURE...... 61 MEETINGS AND HEARINGS...... 62 MINISTERIAL RESPONSES...... 62 STAFFING...... 62 Full time staff...... 62 Additional Part-time Assistance...... 63 Legal Adviser to the Committee...... 63 TRAVEL ...... 63 OUTLOOK FOR 1996/1997...... 64 APPENDIX A - MEANING OF “FUNDAMENTAL LEGISLATIVE PRINCIPLES”...... 65

APPENDIX B - MEETING ATTENDANCE RECORD...... 66

APPENDIX C - LIST OF REPORTS PRESENTED DURING THE PERIOD 1 JULY 1995 TO 30 JUNE 1996...... 67 Chairmans Foreword

CHAIRMANS FOREWORD

The Scrutiny of Legislation Committee has been established for nine and a half months of this financial year. During that time there has been a change of Government, a change in Chairmanship and in Membership of this Committee.

The establishment of this Committee saw reports being made to Parliament on Bills introduced into the House. Therefore, for the first time since the Upper House was abolished in Queensland in 1922, there is once again an independent review of and report on legislation introduced into the Legislative Assembly.

There has been a shift in the Committee’s approach to its responsibilities in the second session of the 48th Parliament with particular emphasis being placed upon achieving the Committee’s aims through co-operation with Ministers of the Government and with the Office of Parliamentary Counsel.

The Committee has been pleased to have the support of the Premier, the Hon R E Borbidge, MLA and Ministers of his Government, in discharging its responsibilities to Parliament. This support is evidenced by the number of occasions on which either the drafting of legislation has been altered, or a Bill has been amended to take account of the Committee’s views on specified points. On behalf of the Committee I wish to thank the Premier and Ministers for their continued assistance and co- operation.

After nine and a half months of operation there is also generally a greater understanding of the Committee’s work and of its contribution to the legislative process in Queensland. The Committee considers whether both primary and subordinate legislation have sufficient regard to the fundamental legislative principles as set out in the Legislative Standards Act 1992. When raising issues about the fundamental legislative principles it makes no political judgement about the policies incorporated therein nor about those introducing them. The Committee operates on a bi-partisan basis and avoids consideration of policy matters except where it is inevitable in the course of the Committee carrying out its responsibilities.

Before I move on, I wish to thank the Ministers for allowing the Committee to receive briefings from members of the Public Service to enable it to more effectively carry out its operations. On behalf of the Committee I thank those members of the Public Service who provided such briefings, often at very short notice, and I also thank the Cabinet Legislation and Liaison Officers who have provided ongoing assistance to the Committee office.

I would now like to take this opportunity to acknowledge the role played by Members of Parliament who have served on this Committee during both sessions. The Committee has been served by committed and hardworking Members who have had to come to terms with a complex and specialised area of operation in a short period of time. The Members have also endured marathon meeting sessions to give all issues the attention they deserve and to deal with a considerable workload. I wish to formally thank them for their commitment, perseverance and patience.

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Further on this subject I also wish to acknowledge the contribution of the present Deputy Chairman of the Committee, Mr Jon Sullivan, MLA who was the foundation Chairman of this Committee in the first session of this Parliament. Jon has been involved in the Committee (and its predecessor, the Subordinate Legislation Committee) for some seven years. Through his acquired expertise and his dedication to the work of this Committee, he has made and continues to make, a valuable contribution to Parliamentary scrutiny of legislation.

Finally I wish to thank the Committee’s Legal Advisor, Professor Charles Sampford and the Committee’s staff for their hard work and for the technical support they provided during the Committee’s initial period of operation.

Tony Elliott, MLA Chairman

29 October, 1996

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1. ESTABLISHMENT AND TERMS OF REFERENCE

ESTABLISHMENT OF THE SCRUTINY OF LEGISLATION COMMITTEE

Recognising the Need for a Scrutiny of Legislation Committee

1.1 Since the dissolution of the Legislative Council in 1922, no formal Parliamentary mechanism has existed in Queensland to review the legislation promulgated by a government which may have a substantial majority in the Legislative Assembly.

1.2 Whilst the Committee of Subordinate Legislation has undertaken Parliamentary scrutiny of subordinate legislation since 1975, it is only with the introduction of the Parliamentary Committees Act 1995 that formal Parliamentary scrutiny of primary legislation has been able to occur.

1.3 In some respects, therefore, the Scrutiny of Legislation Committee now performs some of the functions previously carried out by an Upper House. This is a significant development.

Establishment of the Committee

1.4 The Parliamentary Committees Act 1995 created the Scrutiny of Legislation Committee with responsibility for scrutinising both primary and subordinate legislation. The Scrutiny of Legislation Committee itself was formed on 15 September 1995.

1.5 With the establishment of the Scrutiny of Legislation Committee, Queensland has joined the ranks of other progressive jurisdictions having Committees to scrutinise both primary and subordinate legislation.1 Committees scrutinising Bills are a relatively recent development in the conduct of parliamentary business and investigations. The Senate Standing Committee for the Scrutiny of Bills was the first to be established some fifteen years ago, followed by the Standing Committee for Scrutiny of Bills and Subordinate Legislation of the Australian Capital Territory in March 1992 and most recently the Victorian Scrutiny of Acts and Regulations Committee in November 1992. By way of contrast, all Australian jurisdictions have a Parliamentary Committee scrutinising regulations or subordinate legislation. Most delegated legislation Committees have been established for a substantial period of time, the earliest being the Senate Standing Committee on Regulations and Ordinances established in 1932.

1 The Commonwealth Senate, the Australian Capital Territory and Victoria

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1.6 In accordance with the Westminster system and the practice undertaken in the Commonwealth House of Representatives,2 the party complexion of the Queensland Committees reflects the numerical strength of the parties on the floor of the House. An amendment to the Parliamentary Committees Act 1995 in April 1996 reduced the number of Members serving on committees from 7 to 6, with the Chairman having a casting vote. Section 4A of the Act now provides for an equal number of Members to be nominated by the Government and Opposition.

1.7 Currently the Scrutiny of Legislation Committee has one Member from each of the National and Liberal Parties, the Independent Member of Parliament and 3 Members of the Labor Party. A schedule of the attendance of Members at Committee Meetings is attached as Appendix B to this Report.

TERMS OF REFERENCE

Role of the Committee

1.8 The main object of the establishment of a system of statutory Committees in Queensland is stated in s. 2 of the Parliamentary Committees Act 1995: to enhance the accountability of public administration in Queensland.

1.9 The role of statutory committees, as set out in s. 8 of that Act, is: · to deal with issues within their areas of responsibility, and

· to deal with issues referred to them by the Legislative Assembly or another Act.

1.10 Committees may deal with an issue by considering it and reporting and making recommendations about it to the Legislative Assembly.

Area of Responsibility

1.11 The Scrutiny of Legislation Committee’s area of responsibility, as set out in s. 22 of the Parliamentary Committees Act 1995, is to consider: (a) the application of fundamental legislative principles3 to particular Bills and particular subordinate legislation; and

2 House of Representatives (1991) “House of Representatives Practice”, Australian Government Printing Service, Canberra, p. 592

3 “fundamental legislative principles” are the principles relating to legislation that underlie a Parliamentary democracy based on the rule of law (Legislative Standards Act 1992, s. 4(1)). The

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(b) the lawfulness of particular subordinate legislation

4 by examining all Bills and subordinate legislation .

(2) The committee’s area of responsibility includes monitoring generally the operation of¾

(a) the following provisions of the Legislative Standards Act 1992-

· section 4 (Meaning of “fundamental legislative principles”)

· part 4 (Explanatory Notes); and

(b) the following provisions of the Statutory Instruments Act 1992-

· section 9 (Meaning of “subordinate legislation”)

· part 5 (Guidelines for regulatory impact statements)

· part 6 (Procedures after making of subordinate legislation)

· part 7 (Staged automatic expiry of subordinate legislation)

· part 8 (Forms)

· part 19 (Transitional)

1.12 The Scrutiny of Legislation Committee has performed its role by scrutinising all legislation to consider whether there has been sufficient regard to the Fundamental Legislative Principles as set out in s. 4 of the Legislative Standards Act.

1.13 Where issues have arisen as a result of the scrutiny of Bills, the Committee has reported upon them, and made recommendations where necessary, in reports to Parliament called “Alert Digests”. Concerns arising in the scrutiny of subordinate legislation have been conveyed to the responsible Minister and, as a general rule, these concerns have been subsequently overcome. If the Committee had remained concerned about an unresolved issue in subordinate legislation it would have reported such a concern to Parliament. The Committee did not have reason to deliver such a report during this year.

principles include requiring that legislation has sufficient regard to rights and liberties of individuals and the institution of Parliament. See Appendix A 4 Parliamentary Committees Act 1995, s. 22(1)

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1.14 In this way the Scrutiny of Legislation Committee believes that it makes a positive contribution to the legislative process in Parliament.

Fundamental Legislative Principles

1.15 Section 4 of the Legislative Standards Act5 defines fundamental legislative principles (FLPs) as those “relating to legislation that underlie a parliamentary democracy based on the rule of law” and include “requiring that legislation has sufficient regard to - (a) rights and liberties of individuals; and

(b) the institution of Parliament.”

1.16 Section 4, subsections (3) to (5) of the Legislative Standards Act set out examples of whether legislation has sufficient regard to those FLPs by, for instance: · being consistent with the principles of natural justice;

· not reversing the onus of proof in criminal proceedings without adequate justification;

· providing protection against self incrimination;

· having sufficient regard to Aboriginal tradition and Island custom;

· authorising the amendment of an Act only by another Act.

1.17 The way in which this section was drafted is a credit to the Office of Parliamentary Counsel (OPC). It allows flexibility by being broadly expressed, stated in non- absolute and non-exhaustive terms, and is therefore capable of dealing with changing circumstances6 whilst also requiring sufficient compliance.7

1.18 By giving examples, the OPC has established an open list of instances of legislation having sufficient regard to the FLPs. The benefit is that the list can be expanded to provide protection for either the rights and liberties of individuals or the institution of Parliament in ways which have not been specifically set out in the legislation. For example, the Committee has reported on privacy and confidentiality issues although they are not specifically referred to in s. 4.

Sufficient Regard to Fundamental Legislative Principles

5 Section 4 of the Legislative Standards Act is attached in Appendix A

6 Electoral and Administrative Review Commission (1991) “Report on Review of the Office of the Parliamentary Counsel”, Government Printer, Brisbane, p. 25 7 “Fundamental Legislative Principles: their meaning and rationale” Queensland Law Society Journal Volume 24 at pp 531-544

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1.19 The Legislative Standards Act does not require complete compliance with the norms and values identified by the Legislative Standards Act but requires that legislation has “sufficient regard” to them.

1.20 There are several checks built into the legislation making process to ensure that any deviation from the FLPs is justified and explained: · at the drafting stage, Departments consult with the OPC which is obliged by the Act to provide advice on the implementation of the FLPs8;

· advice may be obtained from the Department of Justice and Attorney-General on the implementation of FLPs;

· the Queensland Cabinet Handbook introduced by the former Government in 1995 required that any proposed legislation which departs from the FLPs be approved by Cabinet9; and

· the Committee examines Bills and subordinate legislation independently to ensure that sufficient regard has been given to the rights and liberties of individuals and to the institution of Parliament.

1.21 The Committee only sees infringements of FLPs which have filtered through the system. The Committee’s approach has been to assess all such departures or infringements of FLPs according to the fundamental legislative principles having particular regard to whether such departures are adequately explained and justified in the public interest.

1.22 In practice, all Bills and subordinate legislation are scrutinised and provisions which may infringe an FLP are identified. The Committee usually refers questionable matters to the Minister responsible for the legislation. Responses from the Ministers concerning Bills may be in the form of replies in the House or in writing, either accepting of the Committee’s recommendations, or rejecting them.

1.23 With regard to subordinate legislation, Ministers usually advise the Committee in writing as to whether the Committee’s recommendations will be adopted. Where the Committee’s concerns are not resolved by correspondence from the Ministers, the Committee may express an intention to give notice of a motion for disallowance in respect of that particular instrument or section thereof in order that the particular piece of subordinate legislation can be debated in the Parliament.

1.24 On many occasions the Committee has identified cases of fundamental legislative principles being infringed and, as a result, the relevant principal or subordinate legislation has been amended or modified. In this way the Committee believes it

8 Legislative Standards Act 1992, s.7(g)(h)

9 Queensland Cabinet Handbook (1995) p. 66

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makes an independent, positive and constructive contribution to the overall quality of Queensland’s legislation.

Does the Committee enquire into matters of policy?

1.25 In the Fitzgerald Report10, the (then) Commissioner Fitzgerald foresaw that Parliamentary Committees could be established to: ...

(c) conduct enquiries into major areas of policy or investigate matters of public concern, or both.

1.26 Other parliamentary committees have the responsibility of considering issues of policy but this Committee is responsible for considering whether the legislative instruments by which Parliament and Executive seek to implement policy satisfy FLPs.

1.27 The Committee seeks to avoid involvement in policy issues. However, the dividing line is not always conveniently drawn. Where a Bill that attempts to implement a policy compromises a value contained in an FLP, the Committee must consider whether the Bill has sufficient regard to, for example, the presumption of innocence or freedom of assembly. The potential conflict between policy and FLP may take at least four different forms. (a) If the breach is limited and appears to be justified because the policy is clearly an important one and there is no apparent alternative to legislation of that kind, then the legislation can be said to “have sufficient regard” for the relevant right or liberty. Under these circumstances, the Committee is most likely to report that the Bill complies with FLPs.

(b) If the policy could be achieved by means that did not compromise the relevant rights and liberties, then the Committee may report that the legislation is in breach of FLPs. This is not a judgement on the policy but on the means of achieving it.

(c) If there are serious concerns that the infringement may not be justified, the Committee will generally indicate the relevant issues, if necessary rehearsing the arguments on either side and refer it for the Parliament to determine.

(d) Finally, in some cases it appears fairly clear to the Committee that the compromise does not appear to be justifed. Again, this does not judge the policy but states a Committee view that the right or freedom enshrined in the FLP is too important to be sacrficed for the policy in question and that the legislation does not, therefore, “have sufficient regard” to the FLPs.

10 “Report of a Commission of Inquiry pursuant to Orders in Council” GE Fitzgerald 3 July 1989 at p. 125

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Precedent

1.28 When the Committee identifies ways in which a Bill fails to comply with fundamental legislative principles, it sometimes receives the reply that the legislation conforms to current drafting practice and examples of various Acts in Queensland or other jurisdictions are given.

1.29 However, the concern of the Committee is with the compliance of Bills with the Legislative Standards Act. The mere fact that a previous enactment failed to pay sufficient regard to fundamental legislative principles does not mean that future enactments are excused from the high standards set out in the Legislative Standards Act.

Avoiding Politics

1.30 The Committee is often called upon to consider highly political and highly contentious issues. What it seeks to do is to develop a bi-partisan approach to fundamental legislative principles, the observance of which should be an important part of our polity.

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Page 8 Annual Report 1995 - 1996 Scrutiny of Bills - First Year in Review

2. SCRUTINY OF BILLS - FIRST YEAR IN REVIEW

OVERVIEW OF THE COMMITTEE’S SCRUTINY OF BILLS

2.1 In the nine and a half months since the Committee’s establishment, it has examined a total of 64 Bills and reported to Parliament on 56% of them.

2.2 The Committee examines all Bills presented to Parliament and reports any issues arising concerning the application of fundamental legislative principles to those Bills. Its reports to Parliament are called “Alert Digests”. This name was adopted from the Federal Senate and Victorian Scrutiny committees whose reports had already become well known by that title.

2.3 The Committee considers it to be an important aspect of its responsibilities to provide reports to Parliament prior to the resumption of the Second Reading debate on any Bill, to facilitate ensuing debate. Standing Order 241(d) provides that debate shall be adjourned for a period of at least six whole calendar days. In practice this means that any Bills introduced in one sitting week must be reported upon by the Committee in the next sitting week to ensure that the report is made prior to resumption of debate. Often this provides the Committee with a very limited time frame within which to fully scrutinise and consider all issues arising in Bills. This Committee has the shortest period for scrutinising and reporting on Bills of all Committees scrutinising principal legislation in Australia.

2.4 Standing Order 273 provides for Bills of an urgent nature to be passed with unusual expedition through their several stages. This means that some Bills may pass all stages in one day, rather than the usual six day minimum. Five urgent Bills were passed during this last financial year. Initially the Committee took the view that it could report on these Bills, having been introduced into the House.11

2.5 The following table provides a breakdown of the type of issues which were reported upon to Parliament and the frequency with which the issues arose within the last year. Some matters within the Committee’s responsibility did not arise for consideration at all during the year, whilst others were identified as issues requiring particular attention by the Committee.

11 By the end of July 1996, however, the Committee had developed the view that it was not within its responsibilities to report on a Bill once passed, except to present information relating to a previous report to Parliament on the Bill.

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PERCENTAGE OF COMMENTS MADE IN ALERT DIGESTS ON ISSUES WITHIN THE COMMITTEE’S AREA OF RESPONSIBILITY DURING THE PERIOD 1 JULY 1995 TO 30 JUNE 1996.

PRINCIPLES %

Sufficiently clear and precise drafting 13

Retrospective legislation 12

Sufficient regard to the rights and liberties of individuals 12

Sufficiently defined administrative power subject to appropriate review 11

Sufficiency of Explanatory Notes 7

Sufficient regard to the institution of Parliament 7

Delegation of administrative power in appropriate cases and to appropriate persons 6

Henry VIII clauses 6

Matter appropriate to subordinate legislation 5

Delegation of legislative power in appropriate cases and to appropriate persons 4

Other 4

Abrogation of the right to silence 2.5

Delegated legislative power sufficiently subject to the scrutiny of the Legislative 2.5 Assembly

Powers of entry, search and seizure with a warrant 2.5

Privacy 2.5

Procedure after making subordinate legislation 2

Sufficient regard to Aboriginal tradition and Island custom 1 ¯ These principles relate to the FLPs in Appendix A and to the Committee’s terms of reference

COMMENT UPON SIGNIFICANT ISSUES ARISING DURING THE YEAR

2.6 In the remainder of the chapter several of the issues identified in the table are expanded upon with a summary of the problem and an overview of the Committee’s approach thereto being set out.

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Sufficiently clear and precise drafting? - section 4(3)(k) Legislative Standards Act 1992

2.7 The Committee has made a significant number of comments on this category of issue and they range from comments pointing out minor drafting errors to more significant observations on drafting which may be ambiguous, and drafting practices which were of concern to the Committee.12

· unambiguous drafting

2.8 An example of drafting which the Committee considered to be ambiguous concerned a test for the exercise of a Ministerial discretion in clause 183A of the Land Amendment Bill 1996. The words of the Bill stated that the Minister could consider that there had been an undue increase in the subject rent. In his Second Reading Speech, however, the Minister referred to the test in terms of: … those categories of people or industry which could be deemed unviable or incapable of paying increased rentals without dire hardship. (Emphasis added)

2.9 The Committee made the observation that the words of the speech were more limited than the relevant clause in the Bill and that this may cause some ambiguity. The suggestion was made that it may be preferable for Parliament to make its intent clear in the wording of the relevant clause. The Minister, the Honourable H W T Hobbs MLA, Minister for Natural Resources subsequently clarified this issue in the course of the Second Reading debate on that Bill.

· drafting practices of concern

2.10 The Committee has also commented on drafting practices which, in its view, do not make legislation clear and easily intelligible to lay persons. By way of example, the Committee reported on the fact that several sections in the Education (Work Experience) Bill 1995 contained text which was unnecessarily complicated. Instead of being self explanatory, the text cross referenced to several other pieces of legislation for the definitions of words and phrases used.

2.11 The Committee expressed that view that, where possible, Bills should be self explanatory and clear to make them more easily understood by lay persons. In the case of this Bill, the Honourable R J Quinn MLA, Minister for Education reintroduced the Education (Work Experience) Bill13 which had taken the Committee’s comments into consideration and incorporated definitions in its text, rather than cross referencing to other legislation.

12 Section 4(3)(k) of the Legislative Standards Act 1992. 13 This Bill was reintroduced by the Minister after the change in Government in 1996.

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Legislation adversely affecting rights and liberties, or imposing obligations retrospectively.

2.12 As is evident from the table, the Committee made several reports to Parliament on legislation that commenced retrospectively.14 From the outset the Committee adopted the policy of reporting all incidence of retrospective commencement to the Parliament indicating whether it had concerns in relation to the retrospectivity or not.

2.13 When legislation commenced retrospectively, but did not have detrimental retrospective effect, the Committee did not express concerns. With respect to legislation having effect retrospectively the Committee also was generally not concerned if: · the retrospective application was beneficial, and

· such benefit applied to persons other than the government.

2.14 The Committee did, however, report on several instances15 where some specified power had been inadvertently removed from an Act and actions mistakenly taken pursuant to that power had to be retrospectively validated. The Committee reported that the practice of making retrospectively validating legislation was not one which it endorsed because such law could adversely affect rights and liberties or impose obligations and therefore breach FLPs. The Committee did, however, recognise that there were some occasions in which curative retrospective legislation, without significant effects on the rights and liberties of individuals, may be justified to correct unintended legislative consequences, especially where noone has relied on the retrospectively varied law.

Delegation of administrative power only in appropriate cases and to appropriate persons

2.15 On several occasions during the Committee’s first nine and a half months of operation, it had to consider the question of whether a particular delegation of administrative power had been made in an appropriate case and to an appropriate person.16

2.16 The Committee considered the contents and effect of s.27A of the Acts Interpretation Act 1954 together with various comments on the subject by Ministers, and came to the conclusion that s.27A is not the ultimate solution to ensuring appropriate delegation of power. The Committee had considered the issue several times and ultimately formalised its approach to the issue in a “policy” which, although first published in Alert Digest No.4 of 1996 was formulated in the

14 Section 4(3)(g) of the Legislative Standards Act 1992. 15 Clause 27 (Part 3) Environmental Protection Amendment Bill 1996 - AD No.3/1996 at p8 16 Section 4(3)(c) of the Legislative Standards Act 1992.

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weeks preceding that Digest. The policy adopted, called “Policy No. 1 of 1996” stated that the Committee’s view on the delegation of powers was as follows: · That the terms of sections 24B and 27A of the Acts Interpretation Act 1954 do not exhaustively cover the requirements of the fundamental legislative principles as set out in the Legislative Standards Act 1992 sections 4(3)(c), (4)(a) and (5)(e).

· The Committee will therefore apply the principles contained in the Legislative Standards Act 1992 17 to each case.

· Where a power being delegated is significant, the Committee prefers that those to whom the power can be delegated should be limited and the qualifications or office specified either in the legislation or in regulations (in which case the delegations could not be made until the regulations are passed).

· Where, nonetheless, significant powers are delegated to a broad category of persons, the Committee has formed the view that the authorising Act or subordinate legislation should require the delegate to be “appropriately qualified”18.

2.17 Since the formal expression of this policy several Bills19 have adopted this approach which, in the Committee’s view, achieves greater conformity with the aims of the fundamental legislative principles.

Right to silence

2.18 The right to silence is not specifically listed as an example of legislation having sufficient regard to the rights and liberties of individuals in s.4 of the Legislative Standards Act 1992. However, as previously mentioned, this is not a closed list but

17 Section 4(3) - whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation - (c) allows the delegation of administrative power only in appropriate cases and to appropriate persons; Section 4(4) - whether a Bill has sufficient regard to the institution of Parliament depends on whether, for example, the Bill - (a) allows the delegation of legislative power only in appropriate cases and to appropriate persons; Section 4(5) - whether subordinate legislation has sufficient regard to the institution of Parliament depends on whether, for example, the subordinate legislation - (e) allows the subdelegation of a power delegated by an Act only - (i) in appropriate cases and to appropriate persons; and (ii) if authorised by an Act. 18 “qualified” to include a reference to formal qualification(s) and / or experience 19 For example: Clause 11 (section 22) Ambulance Service Amendment Bill 1996; and cl.79 Children’s Services Appeals Tribunal Bill 1996

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merely a list of examples of matters regarded as fundamental legislative principles. The right to silence is one of the most basic rights developed by the common law and undoubtedly is a right to which legislation should have sufficient regard.

2.19 Fairly soon after its establishment the Committee noted a form of clause which, in its view, abrogated the right to silence. The clause was usually drafted in a similar format to the following example: False or misleading statements

221.(1) A person must not¾

(a) state anything to QOFS or a relevant person that the person knows is false or misleading in a material particular; or

(b) omit from a statement made to QOFS or a relevant person anything without which the statement is, to the person’s knowledge, misleading in a material particular.

Maximum penalty¾800 penalty units or imprisonment for 4 years20

2.20 The maximum penalty for offences under this clause was a fine of $48 000 or imprisonment for 4 years which, in the Committees view, was a substantial penalty. The Committee reported that the potential abrogation of the right to silence had to be weighted against the objects of the Bill, however, it ultimately recommended that the subject clause be deleted from the Bill.

2.21 In responding to the Committee’s view on a similar clause in the Coastal Protection and Management Bill 1995, the then Minister for the Environment, the Honourable T A Barton MLA pointed out that similar provisions were standard in legislation in his Department and appeared in at least 35 other pieces of Queensland legislation. The Minister then expressed the following view: … there is nothing in clause 75 that abrogates this fundamental right (to silence).

Clause 75(1)(b) does not require a person to make a statement, however, if the person elects to do so, what he or she says must not be misleading by omission of a material particular.

2.22 The Committee noted that the effect of the subject clauses was that if a person said anything at all, the person had to reveal everything. They did not have a right to stop talking. The Committee, therefore, maintained the view that making it an offence for a person to omit relevant material particulars from oral statements is an abrogation of the right to silence.

20 Clause 221(1) Financial Intermediaries Bill 1995.

Page 14 Annual Report 1995 - 1996 Scrutiny of Bills - First Year in Review

2.23 Although the subject clause in the Coastal Protection and Management Bill 1995 was passed unamended, the Financial Intermediaries Bill 1995 was not passed before Parliament was prorogued in March 1996. The Financial Intermediaries Bill 1996 was therefore introduced by the current Treasurer in July 1996. When it was reintroduced the clause to which the Committee had objected had been amended and read as follows: False or misleading statements

225(1) A person must not state anything to QOFS or a relevant person that the person knows is false or misleading in a material particular.

Maximum penalty¾800 penalty units or imprisonment for 4 years.

2.24 The Committee has noted that this amended version of the standard clause on false or misleading statements has been used in subsequent legislation and the previously “standard” form has not been noted in Bills recently.

Special or transitional regulation making power

2.25 The final major area of concern to the Committee arose in four Bills introduced into Parliament during the 1995 - 1996 financial year: · Environmental Protection Amendment Bill 1996

· Local Government Amendment Bill 1996

· Sugar Industry Amendment Bill 1996

· Suncorp Insurance and Finance Amendment Bill 1996

2.26 Each of these Bills contained a clause granting power to make regulations for transitional, validating or savings measures. Typically the clauses had a structure similar to the following clause in the Environmental Protection Amendment Bill 1996: Special regulation-making power

251.(1) A regulation may be made about any matter of a savings, transitional or validating nature for which¾

(a) it is necessary or convenient to make provision because of an amending regulation; and

(b) this part does not make provision or enough provision.

(2) The regulation may be given retrospective operation to a date not earlier than the date of commencement of the amending regulation for which it is made.

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(3) The regulation has effect despite any other provision of this Act.

2.27 In relation to each clause, the Committee raised concerns on three issues.

· Whether there had been an appropriate delegation of legislative power

2.28 The Committee expressed the view that a clause allowing regulations to make provision about any matter for which the principal Act did not make provision or sufficient provision was not an appropriate delegation of legislative power. It reaffirmed the long held view that if a matter is of sufficient importance to be included in an Act of Parliament, that is the only appropriate place for it to be dealt with.

· Whether rights and liberties would be retrospectively affected or obligations retrospectively imposed

2.29 In its reports on this point the Committee confirmed that it did not object to curative retrospective legislation without significant effects on the rights and liberties of citizens. However, the delegation of legislative power as broad as it appeared in these subclauses should not be allowed to have retrospective operation.

· Whether the clause allowed amendment of an Act only by another Act (“Henry VIII clause”)

2.30 The Committee reported that the subclauses allowing regulations to have effect despite any provisions of the principal Act were clearly “Henry VIII clauses” which provided for the amendment of an Act by subordinate legislation. The Committee reaffirmed its view that any changes required to the Act should be brought about by amendment legislation rather than by regulation.

2.31 Several of the clauses granting these special or transitional regulation making powers were subject to sunset clauses.

2.32 The Committee was particularly concerned by the appearance of regulation making powers with so many objectionable elements in four Bills in quick succession. Generally the Ministers concerned referred to the fact that these special provisions were required to address the following unusual aspects of the legislation: · the complex processes involved;

· the urgency of the legislation;

· strict time limitations within which any difficulties arising with respect to the legislation had to be corrected; and

· unforseen difficulties which might arise.

Page 16 Annual Report 1995 - 1996 Scrutiny of Bills - First Year in Review

2.33 The Honourable Trevor Perrett, MLA, Minister for Primary Industry, Fisheries and Forestry, however, moved for the removal of the subject clause during the Committee stage of the debate on the Sugar Industry Amendment Bill 1996. The Committee thanked the Minister for adopting its recommendations. The Committee’s recommendations with respect to the removal of the subject regulation making power in the other Bills were, however, not adopted and the Bills were passed unamended with respect to those clauses.

2.34 The Committee has noted that subsequent transitional regulation making powers in other Bills21 were structured so as not to include a subsection allowing the making of regulations with retrospective effect or “Henry VIII clauses” (with the effect of overriding other clauses of the principal Act). The regulation making power in this latest format has been subject to a sunset clause.

2.35 It may be that a Minister may introduce a Bill in future which is regarded as being of such a nature as to justify the power to make retrospective regulations and to override the Act No doubt the Committee will again object to such transitional regulation making powers. In the interim, the Committee has been very appreciative of the format currently being adopted which avoids two of the issues previously objected to.

IMPACT OF THE SCRUTINY OF LEGISLATION COMMITTEE ON PRINCIPAL LEGISLATION IN QUEENSLAND

2.36 It is too early to conduct a true assessment of the impact of the Scrutiny of Legislation Committee on Bills in Queensland, however, there are some interesting indicators to consider.

2.37 As already reported above, the Committee’s reports appear to have influenced the method of drafting adopted in relation to several issues. Where one method has been objected to by the Committee over time other methods of drafting have been devised to overcome those objections or to adopt Committee recommendations.

2.38 One indicator of the Committee’s influence can therefore be seen in changes to the way in which some Bills have been drafted. Another indicator is the number of amendments to Bills, prior to their passage, being influenced by the Committee reports to Parliament.

2.39 The Committee has carried out an analysis of the amendments moved in the Committee stage of Bills. Of the Bills passed in the last financial year, 80 amendments were moved and 50 adopted. Of the 80 amendments moved, 7 related directly to Committee recommendations and 5 of those were adopted. This represents a direct influence on some 10% of amendments adopted.

21 For example, proposed s.68 in the Ambulance Service Amendment Bill, and cl.94 of the State Financial Institutions and Metway Merger Facilitation Bill 1996

Page 17 Annual Report 1995 - 1996 Scrutiny of Bills - First Year in Review

2.40 The Committee’s aim is to facilitate debate on Bills in the House. The fact that its recommendations have been adopted at times is particularly gratifying and an indicator of the firm support which this Committee has received for its work from the Premier and Ministers in both Governments.

Page 18 Annual Report 1995 - 1996 Scrutiny of Subordinate Legislation - Year in Review

3. SCRUTINY OF SUBORDINATE LEGISLATION - YEAR IN REVIEW

GENERAL OVERVIEW

3.1 The term “subordinate legislation” is often used interchangeably with “delegated legislation”. It is generally legislation that is made: · to ease pressure on parliamentary time;

· because it is too technical or detailed to be suitable for parliamentary consideration;

· to deal with rapidly changing or uncertain situations;

· to deal with emergency situations.22

3.2 Professor Pearce23 explains that whilst the terms subordinate and delegated legislation can be used synonymously to describe the same thing, “subordinate” indicates that such legislation is subordinate in nature to Acts of Parliament, and that an Act prevails in any conflicting situation. “Delegated” connotes the fact that it is legislation made by a non-parliamentary body which has essentially been delegated a parliamentary function. For convenience, the term “subordinate legislation” will be used in this Report to cover both circumstances described.

3.3 The Queensland Legislative Assembly is the lawmaking institution of this State. Most parliamentary time is however dedicated to the examination, debate, amendment and passage of Bills which, upon assent from the Governor, become Acts of Parliament. Unfortunately the sheer volume and complexity of subordinate legislation required to be made under the power of these Acts exceeds the capacity of the state legislature to make and consider each instrument.

3.4 When making an Act, the Parliament will ideally specify within that Act specific circumstances in which the law-making power is to be delegated for instance, to the Governor or Governor in Council,24 the Minister with responsibility for the principal Act, or even the Chief Executive Officer of a Public Sector agency.

3.5 Following the passage of the Statutory Instruments Act in 1992, it became a requirement that, in the majority of cases, subordinate legislation be drafted by the OPC. All subordinate legislation must be notified (or published in full) in the Government Gazette. It is then required to be tabled before the Parliament within

22 Pearce, D. (1977) “Delegated Legislation in Australia and New Zealand”, Butterworths pp. 5-6 23 Ibid, p. 2 24 That is, the Governor acting with the advice of the Executive Council

Page 19 Annual Report 1995 - 1996 Scrutiny of Subordinate Legislation - Year in Review

fourteen sitting days of being notified.25 During the fourteen sitting days following tabling, any Member of the Legislative Assembly may bring a motion to disallow a subordinate instrument.26 If such a motion is not brought the subordinate instrument continues in force subject only to challenge in the Courts.

Enforcement of fundamental legislative principles

3.6 In relation to subordinate legislation, active assessment of regard to the FLPs (as distinct from the giving of advice on them) is carried out by the Committee subsequent to the making of the subordinate legislation. The Committee has the sanction of disallowance available to ensure that there has been sufficient regard to FLPs.

3.7 Section 50 of the Statutory Instruments Act 1992 establishes the legislative basis for disallowance. Subsection (1) provides: The Legislative Assembly may pass a resolution disallowing subordinate legislation if notice of a disallowance motion is given by a member within 14 sitting days after the legislation is tabled in the Legislative Assembly.

3.8 Clearly any member of Parliament may move for disallowance and this power can also be exercised by the Committee, although only on very rare occasions when it has strong views to express to Parliament on a particular piece of subordinate legislation. In practice, the Committee has very rarely had to resort to exercising this power as changes have mostly been introduced to overcome the problems identified.

RESULTS OF SCRUTINY OF SUBORDINATE LEGISLATION

3.9 In the year ended 30 June 1996, the Committee examined 375 pieces of subordinate legislation in accordance with its terms of reference under the Parliamentary Committees Act 1995.

3.10 Where the Committee had concerns about a fundamental legislative principle being infringed or a regulatory impact statement not having been prepared or sufficiently prepared, the Committee sought information from the responsible Minister.

3.11 No notices of disallowance motions were given during the period because the Committee’s concerns were addressed by the provision of additional information or by undertakings from Ministers to introduce amendments to the Committee’s satisfaction. The practice of the Committee is that any undertaking given by Ministers are noted and proposed changes are monitored closely.

25 Statutory Instruments Act 1992, s. 49

26 ibid s. 50

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3.12 In this way, the Committee has achieved some changes to the statute book to ensure that subordinate legislation has sufficient regard to the fundamental legislative principles, thereby improving the overall standard of Queensland legislation. This is further illustrated by the following table of statistics.

Statistics on the results of scrutiny of Subordinate Legislation

3.13 375 pieces of subordinate legislation were examined during this financial year and the Committee expressed concerns in relation to 28 of those instruments. The Committee therefore identified potential problems in only 7.5% of subordinate instruments made. (The principles on which those concerns were based are set out below)

PRINCIPLE %

Rights and liberties, or obligations dependent on sufficiently defined administrative power 28.5 and/or subject to appropriate review.

Sufficiently clear and precise drafting 18

Appropriate sub-delegation of a power delegated by an Act and/or to appropriate 14 persons

Matters appropriate to subordinate legislation 11

Provisions made beyond the powers conferred by authorising law. 11

Non-compliance or partial compliance with regulatory impact statement (RIS) 7 requirements (note: only 12 RISs were prepared - see section on RIS)

Appropriate protection against self-incrimination 3.5

Clarity of explanatory notes 3.5

Rights and liberties adversely affected, or obligations imposed, retrospectively. 3.5

Page 21 Annual Report 1995 - 1996 Scrutiny of Subordinate Legislation - Year in Review

Page 22 Annual Report 1995 - 1996 Monitoring the Operation of Designated Legislation

4. MONITORING THE OPERATION OF DESIGNATED LEGISLATION

BACKGROUND

4.1 The Committee’s area of responsibility as set out in s. 22 of the Parliamentary Committees Act 1995 includes a responsibility to generally monitor the operation of specified provisions of the Legislative Standards Act 1992 and the Statutory Instruments Act 1992.

PROVISIONS OF THE LEGISLATIVE STANDARDS ACT 1992

4.2 Section 22(2)(a) of the Parliamentary Committees Act 1995 provides that the Committee’s area of responsibility includes monitoring generally the operation of the following provisions of the Legislative Standards Act 1992: · s. 4 (Meaning of “fundamental legislative principles”)

· Part 4 (Explanatory Notes).

4.3 Each of these provisions will now be considered in turn.

Meaning of Fundamental Legislative Principles (FLPS)

4.4 The Committee monitors the meaning of fundamental legislative principles on a continuing basis by reporting on the application of those principles to principal legislation in the Alert Digests and by communicating concerns arising in subordinate legislation to the responsible Minister.

4.5 In the text of its Alert Digests, the Committee frequently considers the meaning of a phrase contained in s. 4 of the Legislative Standards Act 1992, seeks information from a Minister thereon and reports to Parliament its ultimate view on the meaning of the subject phrase. By way of example, in applying s. 4(3)(g) of the Legislative Standards Act 199227 the Committee has adopted a policy of reporting on all Bills which either commence retrospectively or may have retrospective effect. In its reports on these provisions, the Committee has over time expressed the view that curative retrospective legislation without significant effects on the rights and liberties of citizens are not objectionable. If, however, the retrospectivity does affect rights and liberties, for example if an individual has relied upon the law and is then effected by a retrospective change, this may be objectionable.

27 Whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation does not adversely affect rights and liberties, or impose obligations, retrospectively.

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4.6 In this way, the Committee is continually monitoring the operation of the fundamental legislative principles and the meaning applied to them.

Explanatory Notes

4.7 Section 22 in Part 4 of the Legislative Standards Act 1992 provides that explanatory notes must be tabled with a Bill or with “significant subordinate legislation”. Sections 23 and 24 then set out the requirements for the contents of explanatory notes for Bills and significant subordinate legislation respectively. Section 25 makes it clear that failure to comply with the requirements set out in Part 4 does not affect the validity of the legislation.

4.8 The Committee discharges its role of monitoring the implementation of these sections by: · scrutinising all explanatory notes for Bills to evaluate compliance with s. 23 and reporting upon any non-compliance in its Alert Digests; and

· by scrutinising subordinate legislation, to determine whether it is significant subordinate legislation requiring the production of an explanatory note. If so, the explanatory note is examined to ascertain whether it complies with s. 24. Any cases of non-compliance are then raised with the Minister responsible for the subject subordinate instrument.

4.9 As a general rule, the requirements for the contents of explanatory notes have been complied with. The Committee has, however, noted that there are some requirements which are occasionally not complied with and in respect of which reports of non-compliance have been made in the Committee’s Alert Digests or letters to Ministers.

· Explanatory notes for Bills

4.10 With respect to the requirements for the contents of explanatory notes for Bills, the Committee has three general comments to make. The first is that the requirements in s. 23(1)(c) and (d) are frequently not complied with. Not many explanatory notes provide reasons why the chosen way of achieving the policy objective is reasonable and appropriate and not many provide statements of alternative ways of achieving the policy objectives with reasons for not adopting such alternatives.

4.11 Secondly, and most significantly, the Committee has frequently reported on short comings in explanatory notes with respect to the requirements set out in s. 23(1)(f) which it deals with fundamental legislative principles. The Committee is of the view that each of the requirements set out in subsections (a) - (g) of s. 23(1) should be dealt with under separate headings before the explanations of the purpose and intended operation of each clause of the Bill is provided. It follows therefore, that there should be a separate section of the explanatory note which addresses the consistency or non-consistency of the Bill with fundamental legislative principles.

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In this section, the Committee looks for a reasoned (although brief) assessment of the consistency or inconsistency with fundamental legislative principles. It is particularly important when questions regarding fundamental legislative principles arise with a respect to a Bill that these issues be dealt with in the explanatory notes.

4.12 The requirement in s. 23(1)(h) to provide a simple explanation of the purpose and intended operation of each clause of the Bill is frequently not fully complied with. The Committee has valued explanatory notes which also provide explanations for clauses contained in schedules to Acts and the explanatory notes provided for amendments in omnibus Bills.

· Explanatory notes for significant subordinate legislation

4.13 With respect to the requirements for the contents of explanatory notes for significant subordinate legislation, the Committee would prefer that explanatory notes contain better explanations of any changes to the significant subordinate legislation as a result of the RIS consultation.

4.14 Apart from receiving explanatory notes for significant subordinate legislation, the Committee receives from the Departments general explanatory statements called “explanatory memoranda” for other subordinate legislation which does not require the preparation of a regulatory impact statement. Unlike the practice of the Senate and New South Wales, there is no obligation to supply an explanatory memorandum for each piece of subordinate legislation. In fact, the explanatory memoranda which the Committee receives from the Departments are provided as a result of a practice established over time.

4.15 The Committee has found the information contained in these explanatory memoranda useful. While the Committee appreciates that the Departments are not obliged to provide these explanatory memoranda, it would prefer to continue to receive them to facilitate its scrutiny process.

4.16 The Committee would particularly appreciate the following information being included in these explanatory memoranda: · a clear citation of the specific section number/s of the authorising Act pursuant to which the subordinate legislation is made; and

· a clear explanation of any fees imposed (together with the recommended particulars referred to later in this report under the section “fees imposed in subordinate legislation”).

PROVISIONS OF THE STATUTORY INSTRUMENTS ACT 1992

Page 25 Annual Report 1995 - 1996 Monitoring the Operation of Designated Legislation

4.17 The Committee’s responsibilities set out in s. 22(1) of the Parliamentary Committees Act 1995 provide it with a substantial workload, particularly with respect to its obligations to report on Bills introduced into the Legislative Assembly. The Committee has therefore had to prioritise its responsibilities to ensure that significant functions are appropriately dealt with. With respect to its responsibility to monitor particular provisions of the Statutory Instruments Act, the Committee has carried that out generally and has no particular concerns to report with respect to: · section 9 (Meaning of “subordinate legislation”)

· part 6 (Procedures after making of subordinate legislation)

· part 7 (Staged automatic expiry of subordinate legislation)

4.18 With respect to Part 5 (Guidelines for regulatory impact statements), however, the Committee has several issues to report on. This legislation has only been in force for 12 months and several aspects of the guidelines require more detailed reporting to the Parliament. This is done in the section below.

GUIDELINES FOR REGULATORY IMPACT STATEMENTS

Background

4.19 Part 5 of the Statutory Instruments Act 1992 provides guidelines for the preparation of regulatory impact statements (RIS). This part of the Act was introduced by amendment on 1 December 1994 and commenced 6 months later, on 1 July 1995.

4.20 RISs are currently required to be produced in New South Wales, Victoria and Tasmania, and consideration is being given to their introduction in other jurisdictions. It is believed that the provision of such statements will assist in: · identifying the clear policy objectives to be achieved;

· considering alternatives to regulation;

· deciding whether subordinate legislation is the best option for achieving the policy objectives; and

· evaluating the costs and benefits of the proposed subordinate legislation.

When is an RIS required?

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4.21 Section 40 of the Statutory Instruments Act specifically provides that the RIS guidelines are directory only (as opposed to mandatory) and s. 41 further provides that failure to comply does not affect the legislation’s validity.

4.22 The fact that compliance with the guidelines is required, however, is stated in s. 40(3): .. it is Parliament’s intention that the guidelines in Division 2 be complied with before subordinate legislation is made.

4.23 Parliament subsequently gave this Committee the responsibility of monitoring the operation of these guidelines generally. The Committee is, therefore, the Parliaments means of ensuring that its intentions, in relation to compliance with the guidelines, is carried out.

4.24 Section 43 of the Statutory Instruments Act 1992 provides that, where proposed subordinate legislation is likely to impose “appreciable costs” on the community or a part of the community, an RIS about the legislation must be prepared before it is made. The Dictionary to the Statutory Instruments Act defines “costs” to include: (a) burdens and disadvantages; and

(b) direct and indirect economic, environmental and social costs.

4.25 The phrase “appreciable costs” is, however, not defined in the Statutory Instruments Act. The ordinary meaning of the word “appreciable” is noticeable, or capable of being estimated.

4.26 The Queensland Government Regulatory Impact Statement Guidelines (the Guidelines) provide some guidance to the Departments on the impact of the legislation and how to comply with it. According to the Guidelines, the question of whether the impacts assessed are in fact “appreciable” is a matter of judgement, bearing in mind the potential application of the impact to any part of the community.28

4.27 The Guidelines do not specify a nominal financial threshold of cost, but rather recommend that each decision of whether a RIS is necessary to be made on a case by case basis.

4.28 The Guidelines also set out a number of factors to assist in a decision on whether there is an “appreciable cost” or not. The list of circumstances to consider includes whether29:

28 Queensland Government Regulatory Impact Statement Guidelines, p 5.

29 Queensland Government Regulatory Impact Statement Guidelines, p 4

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· the legislation involves major government expenditure for which Cabinet approval has not previously been sought and which may flow on as indirect costs to the community;

· the legislation is likely to impose costs or burdens on the community in the vicinity of, say, $500 000 per annum, or say, $5 million over a ten year period, in present value terms;

· the legislation affects a sensitive policy area;

· the legislation is likely to have a significant impact on particular groups within the community;

· the legislation is likely to have a significant impact on the legal rights (such as native title or anti-discrimination) of any particular part of the community; and

· the legislation is likely to have a significant social or environmental impact.

4.29 According to the Guidelines on RISs, if the answer to any of the above questions is “yes”, then the costs involved may be appreciable. However, the guidelines make the point that this list is not exhaustive and should not be used as the sole basis on which to decide the issue. In addition, situations may arise in which only some provisions of an instrument need to be addressed: If subordinate legislation contains some provisions which impose an appreciable cost and others which do not, then a regulatory impact statement is required in relation to those provisions which impose an appreciable cost and are not otherwise excused under Section 46(1).30

Contents of a regulatory impact statement

4.30 Section 44 sets out the requirements for the contents of an RIS which include, for example, information on: · consistency with the policy objectives of the authorising law and other legislation;

· alternative ways of achieving the policy objectives;

· the benefits and costs of implementing the proposed legislation; and

· consistency or inconsistency of the proposed legislation with FLPs.

When is preparation of an RIS not necessary?

30 Section 46(1) is referred to later in this section of this Report

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4.31 Several sections of the Statutory Instruments Act 1992 address circumstances in which the preparation of an RIS is not necessary. For the sake of convenience, some of these are referred to as “exemptions”. The relevant sections are discussed below. · Section 46(1) - General exemptions

4.32 Section 46 of the Statutory Instruments Act sets out particular circumstances in which an RIS is not required.

4.33 For example, there is no need to prepare a regulatory impact statement if the proposed subordinate legislation only provides for, or to the extent that it only provides for: · matters of a non-legislative character;

· matters with no disadvantage to any person;

· amendment without affecting the legislation’s application or operation; and

· matters relating to uniform laws or adopting national or international instruments.

· Section 46(2) - Public interest

4.34 By virtue of section 46(2), the preparation of an RIS is also not required if, or to the extent that, it would not be in the public interest to do so because of the nature of the proposed legislation or the circumstances in which it is made.

4.35 An example provided by the Act is where the subordinate legislation must be made to deal with an urgent situation such as to control the spread of a disease or to deal with another urgent situation. · Section 42 - Comparable prior consultation

4.36 Further, section 42 provides that an RIS is not necessary if a comparable level of publication and consultation about proposed subordinate legislation is required in existing legislation referring to that particular type of subordinate legislation.

4.37 If an alternative publication and consultation process is to be regarded as comparable for the purpose of section 42, it must include the availability of a statement containing similar information to that required to be included in an RIS under the Statutory Instruments Act.

Monitoring of the RIS Guidelines by the Committee

4.38 In monitoring the RIS guidelines in Queensland, the Committee has referred to the Victorian experience, as their legislation is substantially similar. In Victoria,

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subordinate legislation leads to the production of RISs in 20% of cases. The Committee is concerned that by comparison the rate in Queensland for production of RISs is currently 3.2%.

4.39 The Guidelines provide that where the decision to proceed or not to proceed with a regulatory impact statement is unclear, advice as to whether or not an RIS is required may be sought from the OPC, which will draw as necessary, on the advice of the Business Regulation Review Unit (BRRU).

4.40 The proposed mode of providing an RIS in the Guidelines is as follows. Once a Department decides to proceed with a regulatory impact statement, it should liaise with BRRU and the OPC to finalise the RIS. Following the receipt of public comment, the proposed subordinate legislation will be finalised. The Department concerned then forwards the significant subordinate legislation31 to Cabinet, attaching the regulatory impact statement, the Explanatory Note and the draft subordinate legislation certified by the OPC.32

4.41 One of the OPC’s functions in the subordinate legislation process is to certify, at the end of the drafting process, that in its view: · the proposed subordinate legislation is lawful;

· it has sufficient regard to the fundamental legislative principles; and

· the RIS (if any) complies with Part 5 of the Statutory Instruments Act.33

4.42 After subordinate legislation is made, it is scrutinised by this Committee which takes the following steps in its scrutiny process: · an evaluation of whether the subordinate legislation is “significant subordinate legislation”;

· consideration of whether an RIS has been produced;

· if not, consideration of whether an exemption applies;

· if no exemption is applicable, a report to the Parliament on the failure to comply with the RIS guidelines may be compiled.

4.43 In forming its views on the RIS process and developing its approach to monitoring the operation of the RIS guidelines under the Statutory Instruments Act, the

31 Under the Legislative Standards Act 1992 s. 2, “significant subordinate legislation” means subordinate legislation for which a regulatory impact statement must be prepared under Statutory Instruments Act 1992 32 Queensland Government Regulatory Impact Statement Guidelines, p 17.

33 ibid p 16

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Committee has gained considerably from studying the RIS process in other jurisdictions, such as New South Wales and Victoria.

· Experience of the New South Wales Regulation Review Committee

4.44 The New South Wales Regulation Review Committee (NSW Committee) has had experience in scrutinising RISs since 1990. Part 2 of the Subordinate Legislation Act 1989 (NSW) came into force on 1 July 1990 and requires, in all but a small percentage of principal statutory rules, the preparation of an RIS.

4.45 Accurate statistics of these rules are difficult to compile because of the NSW automatic staged repeal system which allows instruments to be repealed and remade, and in these cases, the preparation of RISs is not necessary.

4.46 The NSW Government has set up a Regulation Review Unit to assist effective appraisal of regulation proposals by government departments.34 To facilitate its scrutiny role, the NSW Committee has recommended that where an RIS is not prepared in connection with a regulation, the Minister should certify the reasons for it.35 The certificate should then accompany the proposed regulation when it is referred to the Governor and a copy of the certificate should be produced to the NSW Committee. The Committee then further recommended that it should have the authority, notwithstanding the Minister’s certificate, to recommend to Parliament that a formal RIS be prepared in those cases it considers appropriate.36

· Experience of the Victorian Scrutiny of Acts and Regulations Committee

4.47 Since the passage of the Subordinate Legislation Act 1994 (VIC), the preparation of RISs is mandatory for all statutory rules in Victoria unless an exception certificate or an exemption certificate is issued by the responsible Minister.

4.48 The Victorian Chief Parliamentary Counsel and the Office of Regulation Reform support the practice of providing explanatory notes for statutory rules.37

4.49 The percentage of RISs in relation to the number of statutory rules made each year is around 20%. The Victorian Scrutiny of Acts and Regulations Committee (Victorian Committee) has the responsibility of overseeing compliance. Exemption from the RIS process is only available in limited circumstances and relevant certificates must be provided in support.

34 In Queensland, the Business Regulation Review Unit has a similar role. 35 New South Wales Regulation Review Committee Report No. 23 (November 1993) on Future Directions for Regulatory Review in New South Wales, p.10. 36 Ibid p.10 37 The Senate Standing Committee on Regulations and Ordinances also receive explanatory notes together with the instruments which are forwarded to them for scrutiny as a matter of practice.

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4.50 Exception certificates are issued in areas which are basically non-controversial, such as where the statutory rule deals with fee increases in accordance with an approved annual rate, court practice or procedure, or those specifically excluded in the Subordinate Legislation Act 1994 (VIC)38.

4.51 Exemption certificates are only issued where, for example, in the Minister’s opinion, the proposed statutory rule: · would not impose an appreciable economic or social burden on a sector of the public,

· is made pursuant to a uniform scheme of legislation and a cost-benefit analysis has been done,

· is of a fundamentally machinery or declaratory nature.39

4.52 The Premier can also give temporary exemption from the RIS process if he/she is of the view that in the special circumstances of the case the public interest requires the proposed statutory rule to be made without complying with the RIS process. Statutory rules can only be made with the Premier’s certificate if they expire within 12 months of their making.40

4.53 In Victoria, a certificate of compliance must be given by the responsible Minister prior to the making of the rule and a copy of that certificate together with copies of all comments and submissions and the RIS must be sent to the Victorian Committee. The exemption certificate must specify the reasons for the exemption.41 The Victorian Committee has expressed the view that it will be assisted in its deliberations by knowing the reasons for any exemptions and if reasons are not stated in the certificate, the Victorian Committee has requested that the information to be provided in the accompanying explanatory memorandum.

4.54 The Victorian Committee has on some occasions commented on the insufficiency of the contents of RISs42 despite the fact that the responsible Minister may have certified that the requirements of the Subordinate Legislation Act 1994 (VIC) have been complied with.

Review of the first 12 months of operation of the Queensland RIS guidelines

4.55 During the period ended 30 June 1996, 375 pieces of subordinate legislation were made and 12 RISs prepared. · Where an RIS should have been prepared

38 s. 8 39 Subordinate Legislation Act 1994 (VIC), s. 9 40 Ibid. 41 Ibid. 42 for example, at p. 5 of its second report (March 1993) and p. 9 of its seventh report (May 1995).

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4.56 In the course of its monitoring of the RIS process, the Committee has, on occasion, identified instruments in relation to which RISs should have been prepared or were insufficiently prepared. For example, the Committee formed the view that an RIS should have been prepared in relation to the Transport Operations (Marine Safety) Regulation 1996.43 No RIS was prepared prior to the making of the Regulation in question because the Department was under the mistaken impression that the previous regulation could be further extended. The Minister informed the Committee that failure to provide a new regulation would have effectively resulted in the Transport Operations (Marine Safety) Act 1994 having no regulations to support marine safety in Queensland.

4.57 Ultimately the Committee accepted this reasoning, however, at the Committee’s request a special review clause was inserted into the Regulation requiring a full review to be carried out after 12 months. The Minister confirmed that the review, to be carried out after one year of the Regulation being in place, will include a full RIS process. According to the Minister when this has been completed a new regulation will be introduced to replace the present Regulation. · Queries on the sufficiency of RISs

4.58 The Committee has also commented on the sufficiency of the content of regulatory impact statements. For example, it concluded that the regulatory impact statement prepared for the Fisheries Regulation 199544 should have covered the closure of Pumicestone Strait to commercial fishing specifically. An RIS should also have mentioned the process of negotiation and consideration of making ex-gratia payments to affected fishermen in the Pumicestone Strait closed waters as one of the benefits examined in the cost-benefit analysis during the RIS process.

· Legislation overiding Part 5 Statutory Instruments Act 1992

4.59 Several attempts were also made during these past 12 months to override the effect of Part 5 of the Statutory Instruments Act 1992 by Acts of parliament. Whilst Parliament can, of course, legislate to override previous legislation, the Committee has expressed concerns at these attempts to exclude regulations from compliance with the RIS process.

4.60 By way of example, s. 47(2)(4) of the Coastal Protection and Management Act 1995 provides that: A RIS under the Statutory Instruments Act 1992 need not be prepared for the notice. (to declare an area to be a control district if it requires immediate protection or management).

43 SL no. 369 of 1996 44 SL No. 325 of 1995

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4.61 The Committee reported on this clause45 and pointed out that the Statutory Instruments Act 1992 already makes provision for this circumstance in s. 46(2): The Committee had expressed the view that the Statutory Instruments Act 1992 already makes sufficient provision for exemption from the regulatory impact statement requirements in circumstances where urgent situation arise, therefore making an express exemption in other legislation unnecessary.

4.62 The Committee further reported that the Statutory Instruments Act 1992 does not envisage that subsequent statutes should exempt particular pieces of subordinate legislation from the RIS requirements. Such exemptions are regarded as being inconsistent with the spirit of the RIS guidelines.

4.63 Ultimately, the Minister’s response was that s. 47(2)(4) of the Coastal Protection and Management Bill 1995 was necessary to remove doubt as to whether an RIS was required. The Committee maintained its view that s. 46(2) of the Statutory Instruments Act 1992 already removed doubt as to whether an RIS would be required in circumstances where subordinate legislation deals with urgent situations. The Committee expressed the view that the subject clause was superfluous, however, it was passed unamended.

4.64 The Committee maintains this approach to legislation which may be seen to undermine the spirit of the RIS Guidelines as set out in Part 5 of the Statutory Instruments Act 1992.

Sufficiency of Part 5 - Guidelines for RISs

4.65 Having monitored the operations of the RIS guidelines in Part 5 of the Statutory Instruments Act 1992 for a year, the Committee has only one recommendation for improvement.

4.66 The Committee’s function would be considerably assisted by the introduction (in legislation or otherwise) of a requirement for each piece of subordinate legislation to be accompanied by a statement of how it complies with the RIS guidelines.

4.67 As indicated above, the Committee’s function with regard to RISs involves the following steps:

45 pp5 - 6 of its Alert Digest No. 2 of 1995

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· scrutiny of subordinate legislation to assess whether it imposes an appreciable cost;

· if so, an RIS should be produced;

· if an RIS is not produced, which of the “exemptions” may be said to apply; and

· consideration of whether an “exemption” applies often involves further information being obtained from the relevant Department.

4.68 The Committee does not have the resources to perform this involved process as effectively as it would wish to - to enable it to ensure that the RIS Guidelines are being complied with. By comparison the relevant Department would already have all the necessary information and would have made a decision (in the absence of an RIS) that an RIS is unnecessary for one of the reasons specified in the guidelines.

4.69 The Committee therefore requests that the Premier consider making it an enforceable requirement (legislative or otherwise) that all subordinate instruments be accompanied either by an RIS or by a statement of the provisions of the Statutory Instruments Act 1992 being relied upon in not producing an RIS.

4.70 In the Committee’s view this requirement for the provision of a compliance certificate would substantially improve its ability to effectively monitor compliance with the RIS guidelines. At the same time, this requirement would not impose any additional burden on Departments other than to make a statement of course already adopted.

Results of general monitoring of RIS Guidelines

4.71 During this first year, the Committee has adopted a facilitative approach to monitoring RISs so as not to unduly impede the transition to compliance with these requirements. It now seems appropriate, however, for the Committee to monitor the Guidelines with an increased expectation of compliance. If officers are in doubt as to whether or not an RIS should be prepared, the Committee is of the view that the relevant Department should err on the side of compliance and prepare an RIS.

4.72 Division 1 of Part 5 of the Statutory Instruments Act 1992 makes it clear that validity of subordinate legislation will not be affected by failure to comply with the RIS Guidelines. The Committee interprets this to mean that subordinate legislation can not be invalidated by a Court. This does not, however, in the Committee’s view prevent it form reporting a failure to produce an RIS to the Parliament and moving to disallow the subject instrument. Parliament’s intention that the Guidelines be complied with is clear in s. 40(3) of the Statutory Instruments Act. Parliament may take appropriate action to disallow a subordinate instrument not made in accordance with the express intention of Parliament.

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Page 36 Annual Report 1995 - 1996 Inquiries Initiated by the Subordinate Legislation Committee

5. INQUIRIES INITIATED BY THE SUBORDINATE LEGISLATION COMMITTEE

BACKGROUND

5.1 When the existing Committees system in Queensland was restructured by the Parliamentary Committees Act in September, a number of the Committees existing during the 47th Parliament had commenced inquiries which had yet to be completed. The Parliamentary Committees Act (the Act) specifically addressed this situation. Section 32 provides for a newly constituted Committee (even in a different Parliament) to continue, and finish dealing with, an issue undertaken by a previously constituted Committee.

5.2 In addition, Part 9 of the Act contains transitional provisions including s. 40 which specifically provides for the Scrutiny of Legislation Committee to take over and deal with issues undertaken by the Committee of Subordinate Legislation.

5.3 Pursuant to the powers granted by ss. 32 and 40, the Scrutiny of Legislation Committee considered four lines of inquiry which had been initiated late in the life of the Committee of Subordinate Legislation. In addition, the Subordinate Legislation Committee had, for some years, been participating in a national initiative to achieve effective scrutiny of national schemes of legislation which was nearing completion. The Scrutiny of Legislation Committee therefore also resolved to continue the work of its predecessor in relation to this project.

5.4 The four inquiries initiated by the Subordinate Legislation Committee in June 1995 were: · Henry VIII clauses;

· matter more appropriate to subordinate legislation;

· the scrutiny of fees in subordinate legislation; and

· the current status of the doctrine of ultra vires in Queensland.

5.5 The Subordinate Legislation Committee reported its concerns in relation to each of these issues at pp 17 - 26 of its final report to Parliament entitled The Committee of Subordinate Legislation - A Retrospective.

5.6 Soon after the Scrutiny of Legislation Committee’s establishment in mid-September 1995, the Committee resolved to consider these inquiries and, where necessary, to report to Parliament in relation to them. The current status of each of these inquiries is outlined below.

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Henry VIII Report

5.7 The Committee is in the process of conducting a comprehensive examination of the use of “Henry VIII clauses” in Queensland. Information has been sought from all Ministers with respect to the use of these clauses and it is anticipated that the Committee will report its views to Parliament in respect of “Henry VIII clauses” in November 1996.

Scrutiny of Fees in Subordinate Legislation

5.8 The Committee has examined issues relating to the scrutiny of subordinate legislation which imposes or increases fees and has included a report in this Chapter commencing at paragraph 5.16.

The Current Status of the Doctrine of Ultra Vires in Queensland

5.9 Having regard to the fact that this issue has not arisen since this Committee’s formation, and also considering its substantial workload, the Scrutiny of Legislation Committee has decided not to pursue this inquiry at this point in time. If, however, the issue of whether the doctrine of ultra vires is becoming less relevant as a consequence of current drafting practices should again arise, the Committee will consider undertaking this inquiry.

Matter more appropriate to subordinate legislation

5.10 This issue concerned the inclusion of powers in subordinate legislation which have the potential to adversely affect the rights and liberties of individuals.

5.11 A report detailing the Committee’s views on the incorporation of powers to exclude persons from public places in subordinate legislation is contained in this Chapter commencing at paragraph 5.76.

Effective scrutiny of National Scheme Legislation

5.12 In relation to the issue of national scheme legislation, the Subordinate Legislation Committee first reported concern at its inability to effectively scrutinise such legislation in 1982. By 1983 this concern had been discussed by scrutiny committees at a national level. However, it was not until 1993, at a conference of scrutiny committees, that a decision was taken on a national basis to investigate the issue with a view to enabling Parliamentary scrutiny committees to effectively scrutinise national scheme legislation.

5.13 The core of the problem caused by national scheme legislation is that, whereas scrutiny committees can usually report any problems identified with legislation in their jurisdictions to Parliament, and subordinate legislation committees may even

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consider moving disallowance with respect to such legislation, similar problems encountered in national scheme legislation cannot be effectively challenged. When scrutiny committees have reported problems with respect to such legislation, a common reply from the responsible Minister is that the legislation has already been agreed by the relevant Ministerial Council, accepted and/or passed in other jurisdictions, is of a uniform or nationally applicable nature, and can therefore not be amended.

5.14 The Chairs of scrutiny committees therefore began meeting periodically commencing in 1994, to explore ways of ensuring that national scheme legislation can be effectively scrutinised. By 1995, the working party of Chairs from all jurisdictions had developed a Discussion Paper46 which proposed the adoption of uniform scrutiny principles in accordance with which national scheme legislation could be scrutinised. These uniform scrutiny principles essentially constituted the most fundamental scrutiny principles common to all jurisdictions.

5.15 The Queensland Committee was largely responsible for examining all submissions received in response to the Discussion Paper and for compiling the first draft of a Position Paper. The Position Paper47 sets out the uniform scrutiny principles agreed upon by all jurisdictions according to which national schemes of legislation should be scrutinised as a minimum. The Paper also explores several means of implementing these uniform scrutiny principles. The Position Paper is to be tabled in all jurisdictions and lodged with the Council of Australian Governments (COAG) and all Ministerial Councils responsible for the development of national scheme legislation, for their consideration.48

FEES IN SUBORDINATE LEGISLATION

Background

5.16 The previous Committee of Subordinate Legislation was concerned that subordinate legislation was not used to impose taxes and that fees could be imposed for the provision of government services or for licensing matters without proper approval.

5.17 The Scrutiny of Legislation Committee decided to continue the inquiry and to report to Parliament thereon.

46 “Discussion Paper on the Scrutiny of National Scheme Legislation and the Desirability of Uniform Scrutiny Principles”. Copies available through the Scrutiny of Legislation Committee Office on tel: (07) 3406 7671 or fax: (07) 3406 7500. 47 “Scrutiny of National Schemes of Legislation - Position Paper” by the Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia October 1996 48 Copies of the Position Paper are available through the Scrutiny of Legislation Committee Office on tel: (07) 3406 7671 or fax: (07) 3046 7500.

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Terms of Reference

5.18 Two bases for this concern are found within the Legislative Standards Act 1992. Section 4(3)(a) of the Act provides that whether a Bill has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation makes rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review. Section 4(4)(a) provides that whether a Bill has sufficient regard to the institution of Parliament depends on whether, for example, the Bill allows the delegation of legislative power only in appropriate cases and to appropriate persons.

5.19 The Committee is of the view that the obligation to pay fees (as imposed by government agencies) falls within this category and therefore there is a requirement for this power to be defined and properly exercised. In the process of imposing fees, these agencies are obliged to observe government guidelines which enhance public accountability. These guidelines may contain approval requirements for the Departments to follow in the process of imposing or adjusting fees.

Power to impose fees

5.20 One question examined during the scrutiny process is whether the fees charged are imposed within the powers granted in the principal Act.

5.21 In its Report on Review of the Office of Parliamentary Counsel, 49 EARC did not recommend against subordinate legislation imposing fees, rather, it took the view that subordinate legislation should not exceed the powers conferred by relevant principal legislation. It is therefore essential that the wording of authorising Acts of Parliament be looked at closely to ascertain the extent of the fee imposing powers.

5.22 Fees are not the same as taxes. It is important to draw the distinction. As indicated below, there is a general constitutional principle that only Parliament should impose taxes even thought the Executive may impose fees under certain conditions.

· Difference Between Taxes and Fees

5.23 The High Court has stated in Matthews v Chicory Marketing Board (Vict)50 that taxation is: … a compulsory exaction of money by a public authority for public purpose, enforceable by law and is not a payment for services rendered.

5.24 In general, a fee is a payment for or in respect of services rendered whereas a tax is a means of obtaining revenue for governmental purposes.51

49 para 2.65, EARC Report on Review of the Office of Parliamentary Counsel 1991 50 (1938) 60 CLR at p. 276

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5.25 The question remains one of interpretation of the authorising statute, bearing in mind its relevant purposes.52

5.26 Therefore, the dividing line between a charge for services rendered and a tax can be difficult to draw. However, the Committee does not have to engage in a precise legal and constitutional debate on the issue. If the nature of the charge seems inappropriate for subordinate legislation and is of the kind that should be debated by Parliament, it is potentially in breach of Legislative Standards Act section 4(4)(a).

5.27 If the fees bear no relation to the cost of administering a system, they may be regarded as taxes.53 The fees imposed must also be appropriate and reasonable.

· Should the Executive be empowered to impose taxes?

5.28 The Senate Standing Committee for the Scrutiny of Bills has stood by the constitutional principle that taxation is a matter for primary legislation. It has consistently drawn attention to provisions which allow Ministers unfettered power to make regulations to set the rate of a levy or charge. The Senate Standing Committee takes the view that provisions in an Act which empowers the imposition of fees or charges by regulations should have an upper limit.54

5.29 The constitutional principle is an important one. The power of the parliament to control taxes and to levy them was at the centre of the struggle between the Executive and Parliament since the Middle Ages. The attempts of the Stuart Kings to fund their governments without Parliament through “Ship Money” (a classic “fee” that was charged in such as way as to raise revenue) was a major contributor to the English Civil War. In many Westminster legislatures this principle is given formal constitutional backing. However, it is recognised as a constitutional principle in other Westminster jurisdictions.

5.30 Accordingly the Senate Standing Committee considers that Parliament should spend the necessary time to consider and, if it thinks fit, pass legislation that imposes taxation.55

· Power to tax in subordinate legislation

51 per Barwick C J - Marsh v Shire of Serpentine - Jarrahdale (1966) 120 CLR at p. 580 and also Air Caledonie International v The Commonwealth (1988) 165 CLR 470; Harper v The State of Victoria (1966) 40 ALJR 54. 52 ibid. 53 In Levingston v City of Hobart (1931) 26 Tas LR 164, it was held that a licence fee of £114 imposed exceed the actual administrative cost which was estimated to be around £10. The Court concluded that it was a revenue raising device. 54 Senate Standing Committee for the Scrutiny of Bills - Sixteenth Report of 1995, p. 340. However, EARC has not recommended upper limits as a matter of basic principle (para 2.65, EARC Report on Review of the Office of Parliamentary Counsel 1991). 55 Senate Standing Committee for the Scrutiny of Bills, Sixteenth Report of 1995, p. 345

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5.31 In Queensland, there are occasions where taxing powers have been conferred on the Executive.

5.32 By way of example, in the Environmental Legislation Amendment Act 1995, a definition of “fee” to include “tax” was inserted into the Marine Parks Act 1982 and Recreation Areas Management Act 1988.

5.33 This Committee queried the appropriateness of such a provision in its Alert Digest No. 1 of 1995. Section 4(2)(b) of the Legislative Standards Act 1992 provides that it is a fundamental legislative principle that legislation has sufficient regard to the institution of Parliament. Section 4(5)(c) of the Legislative Standards Act 1992 continues to provide that: (5) Whether subordinate legislation has sufficient regard to the institution of Parliament depends on whether, for example, the subordinate legislation—

(c) contains only matter appropriate to subordinate legislation.

5.34 At that time, the Committee drew the Parliament’s attention to the question of whether a tax was a matter more appropriate to primary legislation. The then Minister for Environment and Heritage mentioned that similar provisions were found in many other Acts in our statute book.56 Many of these Acts were, however, passed before the fundamental legislative principles were introduced in 1992 and all were passed before this Committee was established to scrutinise Bills by reference to the fundamental legislative principles. The said Alert Digest did facilitate Parliamentary debate but the provision in question was passed without amendment.57

5.35 This shows that Parliamentary debate is beneficial and if Parliament is of the view that the circumstances justify the provision of the power to impose taxes on the Executive, it can express its intention clearly in primary legislation.

5.36 Given that fees are not intended to be a means of raising revenue, the level of fees imposed should be appropriate. To determine whether the level of fees is appropriate, any administrative requirements which departments are expected to follow in the fee imposing process should be considered.

Administrative requirements in the fee imposing process

5.37 The previous Committee of Subordinate Legislation was advised that there was a Cabinet protocol on fees (the “protocol”). The protocol sets out the type of

56 For example: Chiropractors and Osteopaths Act 1979, s. 4; Nursing Act 1992, s. 4; Physiotherapists Act 1964, s. 4; and other Health portfolio legislation, and Land Act 1994, sch. 6; Land Title Act 1994, s. 4 57 See Hansard, 20 October 1995 pp. 565 - 574

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approval required for the variations of existing fees and the imposition of new fees. The practice of following the protocol appears to be continuing as no change to the protocol or existing procedure has been indicated to date.

5.38 The following table sets out the protocol with the types of variations and the approval requirements.

Variation Type Limitation Approval By Comment Routine annual Relevant increases in Minister on variations CPI recommendation of CEO Non-routine eg. to Case-by-case Treasurer or To ensure a being in line with full Cabinet58 on consistent approach cost, higher of cost of recommendation of across Government market, etc. Minister Inter-departmental Case-by-case Treasurer To ensure Budget new charges or neutrality is increases above CPI maintained note: CPI - Consumer Price IndexCEO - Chief Executive Officer

Approach adopted by this Committee

5.39 This Committee continues the approach previously adopted by the Committee of Subordinate Legislation. It examines fee increases introduced in subordinate legislation to assess whether the relevant approval has been obtained prior to the imposition or increase of fees and charges.

Issues raised by the Committee

5.40 During the scrutiny process, the Committee has identified a number of issues in relation to fee imposing subordinate legislation. Examples of these issues are set out below.

· Applicability of the protocol

5.41 The Committee considers whether the protocol applies.

5.42 While the protocol expressly applies to routine or non-routine variations, and inter- departmental new charges or increases above the CPI, it does not apply to levies with no consolidated revenue or general regulatory impact, levies by industry

58 Where the proposed variations could have a significant social or economic impact either generally or on a particular section of the community, the Minister or Treasurer (as appropriate) should seek Cabinet approval to the variation.

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funded statutory primary producer representative bodies. Rather, these levies are subject to a considerable degree of scrutiny by the industry, the Department of Primary Industries and the Auditor-General.

Example: Fruit Marketing (Committee of Direction Levies) Amendment Regulation (No. 1) SL No. 360 of 1994

5.43 The former Office of the Cabinet was of the view that research levies of four cents per package on tomato growers (representing a 400% increase) by the Committee of Direction (an industry funded fruit and vegetable grower representative body) were not government fees and charges. The levies were entirely raised from within the industry and the process of determining the rate of levy imposed upon the producers was carried out by elected industry boards. The former Treasurer therefore expressed the view that the protocol for non-routine fee increases did not apply.

· Non-uniformity

5.44 The Committee has noted that the majority of fee imposing subordinate legislation provides for routine increases of fees and charges. The Committee looks to the explanatory memoranda59 on the instruments provided by the Departments for background information. These memoranda often explain that the revised fees and charges are increased by a percentage in accordance with the CPI. There are times when there are occasional discrepancies. At times these discrepancies are the result of the Departments rounding up the revised fees and charges, bringing the final figures above the actual CPI increase level.

Example: Ambulance Service Amendment Regulation (No. 1) 1995, SL No. 159 of 1995

5.45 The Regulation’s explanatory memorandum suggested that the revised fees and charges did not exceed the percentage change in the CPI. It appeared, however, that in only one of nine cases was the increase less than the change in the CPI. According to the Office of Consumer Affairs, the reason for the discrepancy was the rounding up of the figures in addition to the CPI increase, resulting in the revised fees and charges exceeding the CPI threshold.

5.46 The protocol on fees is silent on the rounding up practice. The Committee is of the view that if the result of rounding up is to bring the increase above the CPI level,

59 Explanatory memoranda are documents provided by some government departments as a matter of practice or upon request by the Committee and their contents and standards vary. Explanatory memoranda, on the other hand, are generally more detailed than explanatory memoranda and they are required by the Legislative Standards Act 1992 for significant subordinate legislation (those requiring the preparation of regulatory impact statements) and the content requirements for explanatory memoranda are set out in section 24 of the Legislative Standards Act.

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the fee increase will fall into the non-routine variation category and should then be approved either by the Treasurer or Cabinet.

· Insufficient Explanation

5.47 Most of the Explanatory notes on subordinate legislation do not explain whether the fee increases are either within the percentage change in the CPI, or whether the fee variations are in fact the result of a re-organisation of the fee charging structure (for instance, grouping of different categories of fees into one).

Example: Industrial Court Amendment Rules (No. 1) 1995, SL No. 191 of 1995

5.48 Whilst the greatest increase in this instrument was a 5.9% increase, the majority of increases were below the CPI of 4.5%. The Industrial Relations Commission advised that the fees were increased in line with the CPI, but no explanatory memorandum was provided on this instrument.

Example: Queensland Marine (Registration, Survey, Equipment and Load Line) Regulation 1987 (as amended by the Department of Transport (Variation of Fees) Amendment Regulation (No. 1) 1995), SL No. 220 of 1995

5.49 The fees in question under these regulations were as follows: An application for certificate, or renewal of certificate of registration

(a) for a vessel not over 4.5m—$38.40 plus $6.80 for each metre or part of a metre

(b) for a vessel over 4.5m but not over 10m—$65.70 plus $6.80 for each metre, or part of a metre

(c) for a vessel over 10m but not over 35m—$133.60 plus $11.30 for each metre, or part of a metre

5.50 These fees were subsequently replaced and re-classified by the Transport Operations (Marine Safety) Regulation 1995, SL No. 369 of 1995, Schedule 7, which provided as follows: Registration of recreational ships

2.(1) This section sets the fees for registration of recreational ships.

(2) The fee is the total of the registration, boating facilities, drive fee and recreational use components.

(3) The registration component for a recreational ship is—

(a) for a ship not over 4.5m—$38.40; or

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(b) for a ship over 4.5m—$65.70

(4) The boating facilities component for a recreational ship is—

(a) for a ship not over 10m—$6.80 for each metre or part of a metre; or

(b) for a ship over 10m but not over 35m—$67.90 plus $11.30 for each metre, or part of a metre, over 10 metres; or

(c) for a ship over 35m—$350.40.

5.51 The Explanatory Notes prepared for the 1995 Regulation only stated: … all appropriate Commonwealth and State Government departments and agencies as well as recreational, industry and community groups were consulted during the drafting of the Act and the proposed Regulation.60

5.52 The re-classification of the fees was not fully explained. The Committee is of the view that the lack of sufficient explanation is a matter for concern.

5.53 Explanatory memoranda should contain sufficient explanation on the structure of the fees imposed.

· Unclear Approval

5.54 The Committee has also noticed that the explanatory notes on fee imposing subordinate legislation seldom explain whether the necessary approvals as required by the protocol on variation of fees have been obtained prior to the making of the subordinate legislation.

Example: Registration of Births, Deaths and Marriages Amendment Regulation 1995, SL No. 319 of 1995

5.55 The Regulation introduced a new fee for the re-registration of birth as a result of an alteration to or addition of a name. Its explanatory memorandum expressly stated that the Treasurer’s approval had not been obtained. The Department explained that it did request the Treasurer’s approval for the new fee, but that the approval could not be obtained prior to the consideration of the Regulation by Cabinet. The Treasury Department advised the Department that it would not be critical in view of the fact that the new fee imposed was cost-neutral and would not be imposing an additional tax.

60 page 2, Explanatory Notes for the Transport Operations (Marine Safety) Regulation 1995, SL No. 369 of 1995.

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5.56 Although the Department had subsequently provided additional background information, the Committee was of the view that more information could have been given in the explanatory memorandum.

· Typographical or Administrative Error

5.57 Given the importance of any fee imposing provision in subordinate legislation, care should be taken to avoid errors (whether typing or administrative). In its scrutiny, the Committee has identified some serious errors.

Example: Consumer Affairs (Fees and Charges) Amendment Regulation (No. 1) 1995, SL No. 160 of 1995

5.58 The Regulation contained a typographical error. The Regulation provided that the fee payable for a certified copy of, or extract from, a public information document relating to approved retirement village schemes was $1.00. It was subsequently ascertained from the Office of Consumer Affairs that the figure should have been $11.50.

Example: Transport Operations (Road Use Management) Regulation 1995, SL No. 159 of 1995

5.59 There were two versions of the Regulation, each containing different fees as indicated in the table below.

Item Instrument Tabled on 6.6.95 Instrument Tabled on (Version B) 17.10.95 (Version A)

Fees Fees

Personalised number plates - traditional $297.00 $270.00 Coloured number plates $110.00 $100.00 Number plates with a previously $110.00 $100.00 cancelled registration plate Replacement of customised number $82.50 $75.00 plates by coloured number plates

5.60 The Committee was subsequently advised that two versions of the Regulation were drafted, the correct version (Version A) was made by the Governor in Council and Version B was tabled and distributed by GoPrint. The incorrect version was replaced by the current one some six weeks later.

Requirement for the preparation of regulatory impact statements

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5.61 In its scrutiny, the Committee also considers the application of Part 5 of the Statutory Instruments Act 1992 (Guidelines for regulatory impact statement). Since fee levying subordinate legislation imposes financial burdens on people, the Committee has considered the question of whether the guidelines for regulatory impact statements should apply.

· General review of the RIS requirements

5.62 The specific question which the Committee has considered in this context is whether the preparation of a regulatory impact statement (RIS) is required for fee imposing subordination legislation which is likely to impose an appreciable costs on the community or part of it.

5.63 As previously referred to, Schedule 3 of the Statutory Instruments Act 1992 defines “costs” to include: (a) burdens and disadvantages; and

(b) direct and indirect economic, environmental and social costs. 5.64 The word “appreciable” is not defined but the ordinary dictionary meaning of the word is “noticeable” or “capable of being estimated”.

5.65 On the face of this definition, it could be assumed that fee imposing subordinate legislation requires the preparation of a RIS on the basis that it imposes financial burdens on people. In fact, however, s. 46(1)(j) of the Statutory Instruments Act 1992 provides that if the subordinate legislation only provides for, or to the extent it only provides for, an amendment of a fee, charge or tax consistent with announced government policy, there is no need to prepare a RIS.

· Background of s. 46(1)(j) exemption

5.66 The introduction of the rule making proposal (which is now the regulatory impact statement) was first proposed by EARC. In its Report on the Review of Parliamentary Committees, EARC recommended that the rule making proposal and consultation could be dispensed with if the subordinate legislation only provided for: a variation in fees or charges in connection with the Budget.61

5.67 The word “budget” was not used in section 46(1)(j) of the Statutory Instruments Act 1992, and instead, the phrase “announced government policy” was used. The phrase “announced government policy” seems to have a broader meaning than the phrase “the Budget”.

61 The recommendation was endorsed by the Parliamentary Committee for Electoral and Administrative Review in its 1993 Report on Review of Parliamentary Committees, para. 10.4.9.

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· Should any amendment (increase) of fees beyond the CPI level be regarded as one which is within “announced government policy”?

5.68 It is clear that section 46(1)(j) applies to subordinate legislation which provides for the amendment of a fee, charge or tax consistent with announced government policy.

5.69 The question is, (given that the previous Cabinet protocol requires routine annual fee variations to be in line with the CPI), if the amendment of a fee, charge or tax exceeds the inflation (CPI) rate, whether the amended fees could be interpreted as ones which are not consistent “within the announced government policy”. If so, does this mean that the preparation of a RIS is required prior to the making of the fee imposing subordinate legislation in question?

5.70 Under the Legislative Standards Act 1992, only significant subordinate legislation requires the preparation of a regulatory impact statement. Section 2 of the Legislative Standards Act 1992 simply defines “significant subordinate legislation” as subordinate legislation for which a RIS must be prepared under the Statutory Instrument Act 1992.

5.71 In the same report (as referred to above) in which EARC recommended the introduction of RIS for subordinate legislation and the circumstances in which RISs are not necessary, EARC referred to the Queensland Cabinet Handbook 1992. The Queensland Cabinet Handbook 1992 described “significant” to include matters which affect: increases in taxes/charges in excess of the inflation (CPI) rate62.

5.72 This seems to suggest that subordinate legislation which gives effect to fee increases in excess of the inflation (CPI) rate should be regarded as significant subordinate legislation, and that the preparation of a RIS is necessary.

5.73 The Queensland Cabinet Handbook 1995 repeats the definition of subordinate legislation as found in the Legislative Standards Act 1992: From time to time Ministers and Chief Executives will seek advice on whether particular subordinate legislation is indeed “significant”. Where appropriate, Ministers may wish to liaise with the chair of the Parliamentary Business and Legislation Committee for a ruling on whether an Authority to Forward Significant Subordinate Legislation is warranted. Further advice may be obtained from the Office of the Queensland Parliamentary Counsel, the Cabinet Secretariat and from the Business Regulation Review Unit (BRRU).63

· Should the imposition of new fees, charges or taxes not be regarded as “amendment”?

62 p. 42 63 p. 69

Page 49 Annual Report 1995 - 1996 Inquiries Initiated by the Subordinate Legislation Committee

5.74 Section 46(1) of the Statutory Instruments Act 1992 deals with the amendment of fees. It is arguable that by imposing new fees, charges or taxes as opposed to a mere amendment of existing fees, charges or taxes, the subordinate legislation is likely to impose an appreciable cost on the community or part of it. There are several implications: (a) the exemption provided by section 46(1) will not apply and the subordinate legislation in question is “significant subordinate legislation”. This means that the preparation of a RIS and the conduct of the consultation process are required prior to the making of the subordinate legislation; and

(b) the requirement for the provision of a detailed Explanatory Note under Part 4 of the Legislative Standards Act 1992 will apply. It follows that an Explanatory Note will have to be prepared under the authority of the responsible Minister and be tabled with the significant subordinate legislation in question.

Recommendations

5.75 Having considered the above issues, the Committee is of the view that, to ensure public accountability, it is essential that the exercise of the power to impose fees by subordinate legislation is properly scrutinised. The Committee will seek to discuss this matter further with the Government.

MATTER APPROPRIATE TO SUBORDINATE LEGISLATION?

Background

5.76 On several occasions, the previous Committee of Subordinate Legislation discovered provisions in subordinate legislation which gave police and security officers powers to exclude persons from certain public places for set periods of time.

5.77 The Committee of Subordinate Legislation was concerned that subordinate legislation containing these powers may not pay sufficient regard to the rights and liberties of individuals and the institution of Parliament. At a meeting on 8 June 1995, the Committee of Subordinate Legislation decided to conduct an inquiry into the suitability of including such powers in subordinate legislation.

5.78 The Scrutiny of Legislation Committee takes the view that the matter is serious enough to warrant its conducting the inquiry as previously envisaged by its predecessor and to report on its findings.

5.79 In the process of compiling this report, the Committee has looked into the nature of these powers, the rights and liberties of individuals afforded by common law and legislation, and considered whether subordinate legislation is the appropriate place for these powers.

Page 50 Annual Report 1995 - 1996 Inquiries Initiated by the Subordinate Legislation Committee

What is the nature of these powers?

5.80 Recent concerns about the public safety of citizens have been used to justify these powers. These powers basically take the following forms: · powers to order persons to move from specified public places;

· powers to exclude persons from specified public places for a period of time, with or without reasonable force.

5.81 It may be helpful at this stage to review a few instances of the use of these powers, which have the potential to affect rights and liberties, in subordinate legislation.

South Bank Corporation Amendment By-Law (No. 1) 1994, SL No. 144 of 1994

5.82 Section 17 of the By-law provides: (1) This section applies if a security officer or police officer finds a person contravening section 7 (Conduct causing a public nuisance).

(2) The security officer or police officer may direct the person to leave the site or part of the site.

(3) A direction to leave the site, or a part of the site, under subsection (2) may include a direction not to re-enter it for 24 hours.

(4) A person must not contravene a direction given to the person under subsection (2), unless the person has a reasonable excuse for not complying with it.

Maximum penalty—10 penalty units.

(5) A security officer may, by written notice, direct a person to leave the site, or a part of the site, and not re-enter it for a specified period (starting when the direction is given) of not more than 10 days if—

(a) the person contravenes a direction given to the person under subsection (2); or

(b) the security officer is of the opinion, on reasonable grounds, that the exclusion of the person from the site is justified because of the person’s behaviour.

(6) A person must not contravene a direction given to the person under subsection (5), unless the person has a reasonable excuse for not complying with it.

Maximum penalty—10 penalty units.

Page 51 Annual Report 1995 - 1996 Inquiries Initiated by the Subordinate Legislation Committee

(7) Subsections (5) and (6) and this subsection expire on 30 June 1995.

5.83 Section 17 therefore empowers police and security guards to evict persons who are creating a public nuisance from the area of South Bank and to prohibit persons from re-entering the site for up to 24 hours. There is also an additional power enabling a security officer to prohibit re-entry for a period of up to 10 days upon the provision of a written notice.

5.84 As a result of the previous Committee’s opposition to the inclusion of such powers in subordinate legislation, these powers were subsequently transferred to the South Bank Corporation Act 1989 by virtue of the South Bank Corporation Amendment Act 1995 (with minor drafting modifications).

Nature Conservation Regulation 1994, SL No. 473 of 1994

5.85 Similar powers are found in section 89 of the Nature Conservation Regulation 1994. The section provides: (1) A conservation officer may direct a person in a protected area to immediately leave the area, or a part of the area, if—

(a) the officer finds the person committing, or attempting to commit, an offence against the Act or this regulation; or

(b) the officer suspects on reasonable grounds the person has committed or attempted to commit an offence against the Act or this regulation; or

(c) the person is in a restricted access area or a part of the area closed to the public.

(2) The person must not again enter the area or part of the area—

(a) if the area is a National Park (Scientific) or restricted access area— unless the person holds a permit to enter the area; or

(b) for another protected area—within 24 hours of leaving the area.

(3) If a conservation officer reasonably believes circumstances exist that are a danger to a person in a protected area, the conservation officer may direct the person to leave the area, or the part of the area, where the danger exists.

(4) If a conservation officer reasonably believes the presence of a person in a protected area may interfere with an emergency or rescue activity, the conservation officer may direct the person to leave the area, or the part of area, where the activity is taking place.

(5) A person must comply with a direction given under this section.

Page 52 Annual Report 1995 - 1996 Inquiries Initiated by the Subordinate Legislation Committee

(6) If the person fails to comply with the direction, a conservation officer may take the steps that appear to the officer to be reasonable and necessary to secure compliance with the direction, including, for example—

(a) using reasonable force; and

(b) removing the person’s property to a place outside the protected area or part of the area.

Maximum penalty—80 penalty units.

5.86 Despite the previous Committee’s opposition to the inclusion of such powers in the subordinate legislation, this section still remains in the statute book.

Sufficient regard to the rights and liberties of individuals

· Recognising the rights and liberties of individuals

5.87 The freedom of movement at common law is associated with the rights to liberty and security of the person, to freedom of peaceful assembly and procession and to a democratic society respecting the rule of law.64

5.88 These freedoms at common law are not absolute, and Parliament has the power to restrict those freedoms by legislation.

5.89 Having said that, it is important to note that these freedoms should not be restricted lightly. Brennan J in Re Bolton; Exp Beane.65 stated: Many of our fundamental freedoms are guaranteed by ancient principles of common law or by ancient statutes which are so much part of the accepted constitutional framework that their terms, if not their very existence, may be overlooked until a case arises which evokes their contemporary and undiminished force.

5.90 Mason and Brennan J.J. pointed out in Williams v The Queen66: The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes.

64 The Laws of Australia para 136. Melbourne Corp v. Barry (1922) 31 CLR 174, Higgins J at p. 206 who refers to the existence of a common law right to freedom of movement being implied from the power conferred on local government bodies to regulate processions. The Laws of Australia para. 34 - freedom of assembly is recognised as a residual freedom, this freedom is recognised after all the restrictions on that freedom are taken into account. 65 (1987) 162 CLR 514 at pp. 520-521. 66 (1986) 161 CLR 278 at p. 292.

Page 53 Annual Report 1995 - 1996 Inquiries Initiated by the Subordinate Legislation Committee

5.91 The Legislative Standards Act encapsulates the principles outlined by their Honours above. Queensland is in the forefront with regard to legislative recognition of freedom of assembly. Acting upon a recommendation by EARC, the Queensland Parliament enacted the Peaceful Assembly Act 1992 which recognises the right of peaceful assembly but subjects it to certain conditions.

5.92 One of the objectives of this Act is to ensure that the exercise of the right to participate in public assemblies is subject only to such restrictions as are necessary and reasonable in a democratic society in the interests of: (i) public safety; or (ii) public order; or (iii) the protection of the rights and freedoms of other persons. 5.93 In view of the nature of the powers being introduced into subordinate legislation, the exercise of these powers can limit the freedom of movement and assembly of individuals in certain public places. One may draw from the principles laid down in the Peaceful Assembly Act 1992 that these freedoms, at least the freedom of assembly, should only be subject to the limitation if it is necessary and reasonable in a democratic society in the interests of public safety, public order or the protection of the rights and freedoms of other persons.

· Administrative powers sufficiently defined

5.94 Very often, it is up to the individual police or security officer to determine whether the circumstances justify the exercise of the subject powers.

5.95 The exercise of the subject powers therefore depends either on the individual officer’s interpretation of the action of an individual (eg. Whether an offence has been committed) or on the officer’s reasonable belief that an individual poses a threat to the safety or security of others. The exercise of these powers can therefore be subjective.

5.96 The decision to exercise the powers and the manner in which the powers are exercised by these officers will determine the extent to which people in public places are allowed to enjoy their freedom and the extent to which that freedom is not enjoyed by those persons of whom the officers are suspicious.

5.97 For these reasons, the Committee has felt it essential that these powers are sufficiently defined. EARC in its 1991 Report on the Review of the Office of Parliamentary Counsel stated: This principle requires that care should be taken in legislation to ensure that where administrative decisions affect rights and liberties, the criteria and principles for decision making should be clearly set out in the relevant legislation as far as is practicable. Wide discretionary powers tend to conflict with this principle.67

67 para 2.39.

Page 54 Annual Report 1995 - 1996 Inquiries Initiated by the Subordinate Legislation Committee

5.98 In relation to this point, the Subordinate Legislation Committee expressed concern about the subjective test used in s. 89(6) of the Nature Conservation Regulation 1994 (quoted in full at paragraph 5.85). “(6) if the person fails to comply with the direction, a conservation officer may take the steps that appear to the officer to be reasonable and necessary to secure compliance with the direction, including, for example-

(a) using reasonable force; and

(b) removing the persons property to a place outside the protected area or part of the area.

Maximum penalty - 80 penalty units”68

5.99 The words “to the officer to be” were perceived to be a subjective test with a potentially lower threshold of what is reasonable than an objective test based on the reasonable actions of a reasonable person.

5.100 The former Premier, the Hon Wayne Goss MLA, advised the Committee69 of the intention to amend s.89(6) as soon as practicable.

5.101 To date, however, no such amendment has been introduced and this power to remove persons from public parks, using what appears to a conservation officer to be reasonable force, continues on the statute book.

5.102 In the same Report, the Commission commented on the principles of natural justice: ... where a person’s rights, interests, status or legitimate expectations may be adversely affected by an administrative decision, the decision-maker must not be biased or have the appearance of bias, and the decision-maker must adopt such procedures as are fair and appropriate in all the circumstances to allow the person concerned an effective opportunity to put a case to the decision-maker as to how the decision-making power should be exercised (in an appropriate case, this might involve a requirement to provide the persons affected with advance notice of the particulars of any adverse material, or of the case against them).70

5.103 Police and security officers who are granted powers to exclude persons and to remove them from public places are often expected to exercise their discretion to prevent breaches of the peace. This is a demanding task and Ken J in Wright v McQuatter 71 said that only “careful training and wise guidance” could ensure the proper exercise of such power fairly.

68 Nature Conservation Regulation 1994 SL No. 473 s.89(6) 69 In a letter dated 31 May 1995 70 para 2.41. 71 (1970) 17 FLR 305

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· Inquiries by other bodies

5.104 Both the Criminal Justice Commission and the Parliamentary Criminal Justice Committee have looked at and recognised similar powers in their special reports. They called them “move-on” powers. The Criminal Justice Commission did not recommend a general move-on power.72 However, the Parliamentary Criminal Justice Committee in its 1994 Review of the Criminal Justice Commission’s Report took a different views. While it acknowledged the importance of recognition of the freedoms enjoyed by people, it accepted that the powers would aid in the prevention of crime.73

5.105 As a safeguard against abuse of power, the Parliamentary Criminal Justice Committee recommended that legislative provisions that provided for the powers should commence with the recognition of persons’ rights to peaceful assembly in a public place and that the right should only be subject to such restrictions as necessary and reasonable in a democratic society. Proper procedure for the exercise of the powers was also recommenced.

· Committee’s observations

5.106 Given the nature of these powers and the changing nature of our society, the Committee is of the opinion that legislation containing these powers should be regularly reviewed to ensure that they have sufficient regard to the rights and liberties of individuals. The ambit and the exercise of these powers should, however, be properly defined.

Sufficient regard to the institution of Parliament

5.107 The next issue the Committee has considered is whether subordinate legislation containing these powers has sufficient regard to the institution of Parliament. As mentioned above, this depends on whether, according to the Legislative Standards Act 1992, for example, a Bill allows the delegation of legislative power only in appropriate cases,74 and the subordinate legislation contains only matters appropriate to subordinate legislation.75

· Appropriate delegation of legislative power

5.108 Parliament is the supreme law-making body in the State. The importance of control by the Parliament of law making functions can not be over emphasised. As EARC (in its Report on Review of the Office of Parliamentary Counsel) stated:

72 pp. 649 - 651 of its 1993 Report on a Review of Police Powers in Queensland Volume III. 73 pp. 284 - 287 74 ibid. s. 4(4)(a). 75 ibid. s. 4(5)(c).

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Excessive and uncontrolled delegation of the law making process strikes at the heart of parliamentary democracy. One of the tensions of the Westminster system is the lack of a clear demarcation of legislative and executive power. Legislation which confers undue law making power on the Executive effectively takes from Parliament its proper role. 76

5.109 To ensure smooth running of the government, it is inevitable that Parliament has to delegate some of its legislative powers. The question of whether the delegation is appropriate is also a matter for Parliament to decide.

5.110 Public accountability requires that legislation containing extensive powers be subject to appropriate debate before it is enacted. Governments are elected by people in a democratic society and prudent governments will ensure that legislation has sufficient regard to the rights and liberties which people value. Enactment of legislation which contains extensive powers affecting individuals’ rights and freedoms should be carefully scrutinised and subject to parliamentary debate.

5.111 Only primary legislation is debated upon in the Legislative Assembly. Powers having the potential to effect rights and liberties should be subject to proper debate, and the question that therefore arises is whether subordinate legislation is the place for these powers. To answer this question, it is helpful to look at the nature of subordinate legislation.

· Matters appropriate to subordinate legislation

5.112 Subordinate legislation is not made by the Parliament but by Government departments and agencies to whom the power to legislate is delegated. From the time of notification in the Government Gazette, the subordinate legislation becomes operative and must be tabled before the Legislative Assembly within 14 sitting days of such notification.77

5.113 There is usually very little, if any debate on subordinate legislation in the Legislative Assembly unless a Member moves for disallowance on the subordinate legislation in question. Given the limited opportunity for subordinate legislation to be properly debated, it is questionable whether subordinate legislation is the appropriate place for these powers which may affect rights and liberties.

5.114 The views of other bodies and Members of Parliament on the subject have been useful to consider.

76 1991 report at para 2.50. 77 Statutory Instruments Act 1992, ss. 32 and 48

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5.115 The Commonwealth Administrative Council supports the view that laws which have a significant impact on individual rights and liberties should be enacted in primary legislation.78

5.116 Delegates at the Second Conference of Australian Delegated Legislation Committees held in 1989 also offered valuable insights. It was mentioned at the conference that the solution lay in the awakening of Parliament to its rightful mandate. Mr Bob Hetherington MLC of the 1989 Western Australian Joint Standing Committee on Delegated Legislation emphasised the vigilance required by Parliament to protect itself against executive encroachment and executive erosion of parliamentary supremacy.79 Other prominent delegates also offered their valuable insights: The paradox is that,…most law is not made by you at all. It is not subject to debate on the floors of your respective Houses of Parliament. Statutes are subject to debate and to the flare of media publicity. Delegated legislation is departmental law par excellence and is not subject to Parliamentary debate. Yet it is just as much real law as the Statutes. People can be punished under it in exactly the same manner.80

It seems to me that the primary issue is for the executive - let me call it that rather than the bureaucracy - to recognise that it is the Parliament which is the superior or supreme body, and that Parliament has the role of setting where undulyness - if I can coin a noun - arises. That should be accepted…81

· Attempt to include these powers in subordinate legislation subject to a sunset clause

5.117 The above analysis suggests that subordinate legislation is not the appropriate place to include these powers. The previous Committee of Subordinate Legislation observed that the use of sunset clauses was employed as an attempt to alleviate the concern that these powers were contained in subordinate legislation. The example is the South Bank Corporation By-law. In that By-law, the reason for the use of a sunset clause was given in the Explanatory Note: Sunset clauses have been imposed as the granting of such powers would normally be dealt with in primary Act of Parliament. These amendments will be put in place for a trial period and if they prove unsuccessful, will be incorporated in the primary Act of Parliament.

78 In its Report No. 35 to the Attorney General on Rule Making by Commonwealth Agencies (at para. 2.19) 79 Proceedings of Fourth Australasian and Pacific Conference on Delegated Legislation and First Australasian and Pacific Conference on the Scrutiny of Bills, 28 - 30 July 1993, Parliament House, Melbourne. 80 Ibid at p. 50, per Professor Douglas Whalan 81 Ibid at p. 207, per Professor Dennis Pearce

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5.118 The previous Committee did not agree with the use of sunset clauses to justify the inclusion of these powers in subordinate legislation.

Committee’s conclusions on the inclusion of powers affecting rights in subordinate legislation

5.119 The Committee is of the view that the use of sunset provisions can not be a substitute for having the legislation pay sufficient regard to the rights and liberties of individuals and the institution of Parliament.

5.120 While the Committee accepts that the values recognised by fundamental legislative principles are not absolute and that there may be occasions where existing rights and liberties may need to be qualified for a legitimate social objective, it is supportive of the EARC’s view that it is important for proper regard be paid to them in the drafting and parliamentary consideration of legislation. Where it is considered necessary to depart from these fundamental legislative principles, the departure should be explained and justified.82

5.121 This Committee appreciates the policy objective of protecting the safety of the public to ensure persons visiting certain public places are not subject to undue violence. In the Committee’s view, this social objective may justify the overriding of the rights of certain individuals to protect the public at large. If it is to do so, however, the Committee’s view is that whether or not such legislation has sufficient regard to the FLPs is a question which should be carefully debated in Parliament. In the Committee’s view it is therefore inappropriate to include these powers in subordinate legislation.

5.122 The Committee therefore continues to oppose the practice of conferring powers to exclude persons from certain public places by subordinate legislation.

82 The Report of the Electoral and Administrative Review Commission on Review of the Office of the Parliamentary Counsel, p. 9.

Page 59 Annual Report 1995 - 1996 Inquiries Initiated by the Subordinate Legislation Committee

Page 60 Annual Report 1995 - 1996 Administrative Matters

6. ADMINISTRATIVE MATTERS

EXPENDITURE

6.1 The total expenditure of the Scrutiny of Legislation Committee in the period 1 July 1995 to 30 June 1996 was $151 653. The breakdown of this expenditure is set out below:

$

Salaries83 96 743

Payroll Tax, Superannuation 10 670

Conferences, Seminars, Training 457

Travel84 21 852

Consultants 5 784

Stores/Stationery/Consumables 386

Reference Books 8 869

Printing of Reports 5 415

Meeting Expenses 1 168

Advertising 0

Miscellaneous 309

TOTAL 151 653

6.2 The actual expenditure of the Scrutiny of Legislation Committee exceed that of the Subordinate Legislation Committee for the period 1 July 1994 to 30 June 1995 by $31 778. The Committee’s functions have, however, effectively doubled in that it is now responsible for the scrutiny of principal as well as subordinate legislation. The Committee also now publishes a report to Parliament every sitting week and is assisted by a legal adviser which increases its expenditure.

83 Includes temporary assistance, overtime, meal allowances and extra remuneration. 84 Includes travel expenses incurred to and from meetings and staff travel with or for the Committee.

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MEETINGS AND HEARINGS

6.3 The Committee regularly meets on the Monday of a sitting week to adopt the Alert Digest to be tabled on the following day and to deal with subordinate legislation and other matters arising since its last meeting. The Committee has also met in between sitting weeks as required.

6.4 In total the Committee has had 11 meetings as detailed in the attendance table in Appendix B. The Committee has not held any public or private hearings during this financial year.

MINISTERIAL RESPONSES

6.5 Part 5 of the Parliamentary Committees Act 1995 contains various requirements for Ministerial responses to reports and recommendations by Parliamentary Committees. Section 24(1), however, exempts reports of the Scrutiny of Legislation Committee from the operation of that Part.

6.6 In practice, the Scrutiny of Legislation Committee reports to Parliament regularly on Bills in its “Alert Digests”. Ministers responsible for legislation reported upon are invited to respond to the Committee’s comments. Responses received from Ministers are then discussed and published in full in the following Alert Digest. The Committee has received responses from Ministers in respect of approximately 80% of Bills reported upon and thanks the Ministers for their continued assistance.

6.7 With respect to subordinate legislation - the Committee would only report to Parliament on a matter arising that was of particular concern or as part of a motion to disallow a subordinate instrument. No such reports were tabled this year.

6.8 As previously mentioned the Committee will, however, be reporting to Parliament on “Henry VIII clauses”. There is no particular statutory requirement for Ministers to respond to this Report, however, the Committee has received the support and assistance of the Premier and Ministers in the past and feels assured that this co- operation will continue in the future.

STAFFING

Full time staff

6.9 The Committee was allocated the following full time staffing positions: · Research Director (AO8)

· Senior Research Officer (AO5)

· Executive Assistant (AO3)

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6.10 Those positions were advertised in October and November 1995 and, following a full selection process, the following persons were appointed by December 1995: · Louisa Pink - Research Director

· Simon Yick - Senior Research Officer

· Lisa Shuttleworth - Executive Assistant

Additional Part-time Assistance

6.11 After a change of government in early 1996 Parliament resumed a steady sitting pattern by April 1996 when the new government’s legislative programme was commenced. It became evident soon thereafter that the Committee’s staff was coming under increased strain from its full workload. Approval was therefore granted for the Committee to employ a part-time assistant at an AO2 level for two to three days a week on a trial basis. This additional assistance was utilised fully and ensured that the Committee Office operated more smoothly, particularly during periods of peak activity. The trial employment of the AO2 officer is to be reviewed in July 1996.

Legal Adviser to the Committee

6.12 Although not employed on the staff of the Committee, the Legal Adviser to the Committee plays an integral part in providing technical support to the Committee.

6.13 In October 1995 the Committee engaged Professor Charles Sampford as a consultant to provide legal advice to the Committee on particular matters referred to him. This consultancy was for the period October 1995 - 30 June 1996 and was not to exceed $8 400 in value of services rendered.

6.14 Professor Sampford was the Foundation Dean of the Griffith University Law School and currently holds appointments at Griffith University as Director of the National Institute for Law, Ethics and Public Affairs, and as Minter Ellison Foundation Professor of Law.

TRAVEL

6.15 Soon after the Committee’s formation, the then Committee Chairman, Mr Jon Sullivan MLA, Committee Members (in the first session of the 48th Parliament) and legal staff travelled to Canberra and Melbourne to meet with scrutiny committees in those jurisdictions which also scrutinise principal and subordinate legislation.85 The

85 Senate Standing Committee for the Scrutiny of Bills

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Committee particularly gathered material on the comparative modes of operation of those Committees and used information gained to develop its own approach to its responsibilities.

6.16 When Mr Tony Elliott MLA assumed his role as Chairman of the Committee in April 1996, a further visit to Canberra and Melbourne was undertaken to enable him to rapidly acquire knowledge on the role and operations of scrutiny committees.

6.17 As already reported in Chapter 586, the Committee has played an active role in the developing uniform scrutiny principles for national scheme legislation. The Queensland Scrutiny of Legislation Committee Chairman and staff attended several meetings of a working party of Chairs and staff of scrutiny committees from all jurisdictions to develop, and ultimately finalise, a Position Paper entitled “Scrutiny of National Schemes of Legislation”.

OUTLOOK FOR 1996/1997

6.18 Having dealt with the matters which were carried over from the Subordinate Legislation Committee, the Committee has no further outstanding issues to deal with.

6.19 In the coming year the Committee will continue with its primary responsibilities of scrutinising primary and subordinate legislation. No doubt it will continue to develop its views on the issues arising under the FLPs that apply particularly to Bills as it settles in to this comparatively new responsibility.

6.20 Compliance with the RIS Guidelines and contents of explanatory notes are aspects of the Committee’s responsibilities which are likely to receive more attention in the coming year as the Committee expects that after a year under those legislative requirements, stricter compliance can be expected.

Senate Standing Committee on Regulations and Ordinances Standing Committee for Scrutiny of Bills and Subordinate Legislation of the Australian Capital Territory Scrutiny of Acts and Regulations Committee of Victoria 86 paragraphs 5.12 - 5.15

Page 64 Annual Report 1995 - 1996 Appendix A - Meaning of “Fundamental Legislative Principles”

APPENDIX A - MEANING OF “FUNDAMENTAL LEGISLATIVE PRINCIPLES”

4.(1) For the purposes of this Act, “fundamental legislative principles” are the principles relating to legislation that underlie a parliamentary democracy based on the rule of law87 (2) The principles include requiring that legislation has sufficient regard to-

(a) rights and liberties of individuals; and (b) the institution of Parliament. (3) Whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation- (a) makes rights or liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review; and (b) is consistent with the principles of natural justice; and (c) allows the delegation of administrative power only in appropriate cases and to appropriate persons; (d) does not reverse the onus of proof in criminal proceedings without adequate justification; and (e) confers power to enter premises, and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer; and (f) provides appropriate protection against self-incrimination; and (g) does not adversely affect rights and liberties, or impose obligations, retrospectively; and (h) does not confer immunity from proceeding or prosecution without adequate justification; and (i) provides for the compulsory acquisition of property only with fair compensation; and (j) has sufficient regard to Aboriginal tradition and Island custom; (k) is unambiguous and drafted in a sufficiently clear and precise manner. (4) Whether a Bill has sufficient regard to the institution of Parliament depends on whether, for example, the Bill- (a) allows the delegation of legislative power only in appropriate cases and to appropriate persons; and (b) sufficiently subjects the exercise of a delegated legislative power to the scrutiny of the Legislative Assembly; and (c) authorises the amendment of an Act only by another Act. (5) Whether subordinate legislation has sufficient regard to the institution of Parliament depends on whether, for example, the subordinate legislation- (a) is within the power that, under an Act or subordinate legislation (the “authorising law”), allows the subordinate legislation to be made; and (b) is consistent with the policy objectives of the authorising law; and (c) contains only matter appropriate to subordinate legislation; and (d) amends statutory instruments only; and (e) allows the subdelegation of a power delegated by an Act only- (i) in appropriate cases and to appropriate persons; and (ii) if authorised by an Act.

87 Under section 7 a function of the Office of the Queensland Parliamentary Counsel is to advise on the application of fundamental legislative principles to proposed legislation.

Page 65 Annual Report 1995 - 1996 Appendix B - Meeting Attendance Record

APPENDIX B - MEETING ATTENDANCE RECORD

SCRUTINY OF LEGISLATION COMMITTEE

48TH PARLIAMENT FIRST SESSION

MEETING ATTENDANCE RECORD

MEETING DATE JON TED MALONE STEVE LIZ CUNNINGHAM NEIL DEAN LUKE SULLIVAN BREDHAUER ROBERTS WELLS WOOLMER 4 4 4 4 4 4 4 15 SEPTEMBER 1995 4 4 8 4 4 8 4 25 SEPTEMBER 1995 4 4 8 8 4 8 4 27 SEPTEMBER 1995 4 4 4 4 4 4 4 16 OCTOBER 1995 4 8 4 4 4 4 4 20 OCTOBER 1995 4 4 4 4 4 4 4 30 OCTOBER 1995 4 4 4 4 4 4 4 13 NOVEMBER 1995

48TH PARLIAMENT SECOND SESSION

MEETING ATTENDANCE RECORD

MEETING TONY JON SULLIVAN LIZ CUNNINGHAM TED NEIL FRANK DEAN DATE ELLIOTT MALONE ROBERTS TANTI WELLS 4 4 4 4 4 4 8 4 APRIL 1996

4 4 4 88 4 4 8 15 APRIL 1996 4 4 4 4 4 4 29 APRIL 1996 4 4 4 4 4 4 13 MAY 1996

88 Mr Ted Malone was excused from service on the Committee following a reduction in all Committee numbers from seven (7) to six (6).

Page 66 Annual Report 1995 - 1996 Appendix C - List of Reports presented during the period 1 July 1995 to 30 June 1996

APPENDIX C - LIST OF REPORTS PRESENTED DURING THE PERIOD 1 JULY 1995 TO 30 JUNE 1996

SCRUTINY OF LEGISLATION COMMITTEE

TITLE OF REPORT DATE TABLED

Alert Digest No. 1 of 1995 17 October 1995

Alert Digest No. 2 of 1995 31 October 1995

Alert Digest No. 3 of 1995 14 November 1995

Alert Digest No. 1 of 1996 16 April 1996

Alert Digest No. 2 of 1996 30 April 1996

Alert Digest No. 3 of 1996 14 May 1996

Page 67