Scrutiny Report · 2012. 11. 12. · Disallowable Instrument DI2011-63 being the Taxation...

STANDING COMMITTEE ON JUSTICE AND COMMUNITY SAFETY (performing the duties of a Scrutiny of Bills and

Subordinate Legislation Committee)

Scrutiny Report

2 7 J U N E 2 0 1 1

R e p o r t 3 8

Scrutiny Report No. 38—27 June 2011

TERMS OF REFERENCE The Standing Committee on Justice and Community Safety (when

performing the duties of a scrutiny of bills and subordinate legislation committee) shall:

(a) consider whether any instrument of a legislative nature made under an Act which is subject to disallowance and/or disapproval by the Assembly (including a regulation, rule or by-law):

(i) is in accord with the general objects of the Act under which it is made;

(ii) unduly trespasses on rights previously established by law;

(iii) makes rights, liberties and/or obligations unduly dependent upon non-reviewable decisions; or

(iv) contains matter which in the opinion of the Committee should properly be dealt with in an Act of the Legislative Assembly;

(b) consider whether any explanatory statement or explanatory memorandum associated with legislation and any regulatory impact statement meets the technical or stylistic standards expected by the Committee;

(c) consider whether the clauses of bills introduced into the Assembly:

(i) unduly trespass on personal rights and liberties;

(ii) make rights, liberties and/or obligations unduly dependent upon insufficiently defined administrative powers;

(iii) make rights, liberties and/or obligations unduly dependent upon non-reviewable decisions;

(iv) inappropriately delegate legislative powers; or

(v) insufficiently subject the exercise of legislative power to parliamentary scrutiny;

(d) report to the Legislative Assembly about human rights issues raised by bills presented to the Assembly pursuant to section 38 of the Human Rights Act 2004;

(e) report to the Assembly on these or any related matter and if the Assembly is not sitting when the Committee is ready to report on bills and subordinate legislation, the Committee may send its report to the Speaker, or, in the absence of the Speaker, to the Deputy Speaker, who is authorised to give directions for its printing, publication and circulation.


MEMBERS OF THE COMMITTEE

Mrs Vicki Dunne , MLA (Chair) Mr John Hargreaves, MLA (Deputy Chair)

Ms Meredith Hunter, MLA ___________

Legal Adviser (Bills): Mr Peter Bayne

Legal Adviser (Subordinate Legislation): Mr Stephen Argument Secretary: Mr Max Kiermaier

(Scrutiny of Bills and Subordinate Legislation Committee) Assistant Secretary: Ms Anne Shannon

(Scrutiny of Bills and Subordinate Legislation Committee)

ROLE OF THE COMMITTEE

The Committee examines all Bills and subordinate legislation presented to the Assembly. It does not make any comments on the policy aspects of the legislation. The Committee’s terms of reference contain principles of scrutiny that enable it to operate in the best traditions of totally non-partisan, non-political technical scrutiny of legislation. These traditions have been adopted, without exception, by all scrutiny committees in Australia. Non-partisan, non-policy scrutiny allows the Committee to help the Assembly pass into law Acts and subordinate legislation which comply with the ideals set out in its terms of reference.

TABLE OF CONTENTS

BILL ...........................................................................................................................1

Administrative (One A.C.T. Public Service Miscellaneous Amendments) Bill 2011.............................................................................................................1

SUBORDINATE LEGISLATION................................................................................1

Disallowable Instruments—No comment.......................................................1

Disallowable Instruments—Comment ............................................................5

Subordinate laws—No comment ..................................................................12

Subordinate laws—Comment .......................................................................12

GOVERNMENT RESPONSES ................................................................................14

OUTSTANDING RESPONSES...................................................................................i


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BILL Bill—No comment The Committee has examined the following bill and offers no comments on it:

ADMINISTRATIVE (ONE A.C.T. PUBLIC SERVICE MISCELLANEOUS AMENDMENTS) BILL 2011

This Bill would amend a large number of pieces of legislation in consequence of the single agency structure for the ACT public service as is proposed by the Public Sector Management (One ACT Public Service) Amendment Bill 2011. SUBORDINATE LEGISLATION Disallowable Instruments—No comment The Committee has examined the following disallowable instruments and offers no comments on them: Disallowable Instrument DI2011-55 being the Road Transport (General) Application of Road Transport Legislation Declaration 2011 (No. 2) made under section 13 of the Road Transport (General) Act 1999 declares specified rally vehicles to be exempt from certain provisions of the road transport legislation to enable them to be driven to and from a media event.

Disallowable Instrument DI2011-56 being the Road Transport (General) Application of Road Transport Legislation Declaration 2011 (No. 3) made under section 12 of the Road Transport (General) Act 1999 declares that the road transport legislation does not apply to a road or road related area where a special stage of the Kowen Rallysprint is being conducted.

Disallowable Instrument DI2011-57 being the Commissioner for the Environment (Reporting Period and Reporting Day) Determination 2011 (No. 1) made under subsection 19(5) of the Commissioner for the Environment Act 1993 specifies the reporting period for the next ACT State of the Environment Report and the reporting date.

Disallowable Instrument DI2011-58 being the Public Place Names (District of Gungahlin) Determination 2011 (No. 1) made under section 3 of the Public Place Names Act 1989 determines the name of a road in the District of Gungahlin, which will be the main distributor road for the proposed Division of Jacka.

Disallowable Instrument DI2011-59 being the Public Place Names (Crace) Determination 2011 (No. 1) made under section 3 of the Public Place Names Act 1989 determines the names of two new roads in the Division of Crace.

Disallowable Instrument DI2011-60 being the Public Place Names (Bonner) Determination 2011 (No. 1) made under section 3 of the Public Place Names Act 1989 determines the names of nine roads in the Division of Bonner.


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Disallowable Instrument DI2011-62 being the Attorney General (Fees) Amendment Determination 2011 (No. 1) made under section 50 of the Security Industry Act 2003 amends DI2010-107 by removing items 230.1, 231-232, 236 and 238 from Schedule 2 and substituting new items.

Disallowable Instrument DI2011-63 being the Taxation Administration (Rates) Determination 2011 (No. 1) made under section 139 of the Taxation Administration Act 1999 revokes DI2010-94 and determines variable rating factors for the calculation of rates payable under the Rates Act 2004.

Disallowable Instrument DI2011-64 being the Taxation Administration (Rates—Rebate Cap) Determination 2011 (No. 1) made under section 139 of the Taxation Administration Act 1999 revokes DI2010-95 and determines a new rebate cap under the Rates Act 2004.

Disallowable Instrument DI2011-65 being the Taxation Administration (Rates—Fire and Emergency Services Levy) Determination 2011 (No. 1) made under section 139 of the Taxation Administration Act 1999 revokes DI2010-93 and determines new amounts for the calculation of the fire and emergency services levy under the Rates Act 2004.

Disallowable Instrument DI2011-66 being the Heritage (Council Member) Appointment 2011 (No. 1) made under section 17 of the Heritage Act 2004 revokes DI2008-71 and appoints a specified person as a member of the ACT Heritage Council, representing archaeology.

Disallowable Instrument DI2011-67 being the Heritage (Council Member) Appointment 2011 (No. 2) made under section 17 of the Heritage Act 2004 revokes DI2008-71 and appoints a specified person as a member of the ACT Heritage Council, representing landscape architecture.

Disallowable Instrument DI2011-68 being the Heritage (Council Member) Appointment 2011 (No. 4) made under section 17 of the Heritage Act 2004 revokes DI2008-71 and appoints a specified person as a member of the ACT Heritage Council, representing the Aboriginal community.

Disallowable Instrument DI2011-69 being the Public Place Names (City) Determination 2011 (No. 2) made under section 3 of the Public Place Names Act 1989 determines the name of one road in the Division of City.

Disallowable Instrument DI2011-70 being the Public Place Names (Harrison) Determination 2011 (No. 2) made under section 3 of the Public Place Names Act 1989 determines the name of 17 roads in the Division of Harrison.

Disallowable Instrument DI2011-71 being the Public Place Names (Forde) Determination 2011 (No. 1) made under section 3 of the Public Place Names Act 1989 determines the name of five roads in the Division of Forde.

Disallowable Instrument DI2011-72 being the Government Procurement Appointment 2011 (No. 1) made under sections 12 and 13 of the Government Procurement Act 2001 appoints a specified person as a non-public employee member of the Government Procurement Board.

Disallowable Instrument DI2011-73 being the Government Procurement Appointment 2011 (No. 2) made under sections 12 and 13 of the Government Procurement Act 2001 appoints a specified person as a non-public employee member of the Government Procurement Board.


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Disallowable Instrument DI2011-74 being the Road Transport (Safety and Traffic Management) Parking Authority Declaration 2011 (No. 1) made under subsection 75A(2) of the Road Transport (Safety and Traffic Management) Regulation 2000 repeals DI2008-260 and declares a specified company to be a parking authority.

Disallowable Instrument DI2011-81 being the Climate Change and Greenhouse Gas Reduction (Renewable Energy Targets) Determination 2011 (No. 1) made under section 9 of the Climate Change and Greenhouse Gas Reduction Act 2010 determines targets for the use of renewable energy (electricity).

Disallowable Instrument DI2011-84 being the Long Service Leave (Portable Schemes) Building and Construction Industry Levy Determination 2011 made under subsection 51(1) of the Long Service Leave (Portable Schemes) Act 2009 determines the levy payable by employers in the building and construction industry.

Disallowable Instrument DI2011-85 being the Public Place Names (Wright) Determination 2011 (No. 1) made under section 3 of the Public Place Names Act 1989 determines the names of new roads in the Division of Wright.

Disallowable Instrument DI2011-86 being the Building (ACT Appendix to the Building Code—2011 edition) Determination 2011 made under subsection 136(2) of the Building Act 2004 revokes DI2010-263 and makes appendices for the 2011 edition of the Code.

Disallowable Instrument DI2011-87 being the Public Place Names (Molonglo Valley District) Determination 2011 (No. 1) made under section 3 of the Public Place Names Act 1989 determines the name of a major arterial road in the Molonglo Valley District.

Disallowable Instrument DI2011-91 being the Canberra Institute of Technology (Advisory Council) Appointment 2011 (No. 6) made under section 31 of the Canberra Institute of Technology Act 1987 appoints a specified person as a member of the Canberra Institute of Technology Advisory Council, representing the interests of industry and commerce.

Disallowable Instrument DI2011-92 being the Board of Senior Secondary Studies Appointment 2011 (No. 1) made under section 8 of the Board of Senior Secondary Studies Act 1997 appoints a specified person as a member of the ACT Board of Senior Secondary Studies, after consultation with the Canberra Institute of Technology.

Disallowable Instrument DI2011-93 being the Board of Senior Secondary Studies Appointment 2011 (No. 2) made under section 8 of the Board of Senior Secondary Studies Act 1997 appoints a specified person as a member of the ACT Board of Senior Secondary Studies, after consultation with vocational education and training organisations.

Disallowable Instrument DI2011-94 being the Education (Non-government Schools Education Council) Appointment 2011 (No. 1) made under section 57 of the Education Act 2004 appoints a specified person as chair of the Non-government Schools Education Council.

Disallowable Instrument DI2011-95 being the Health (Interest Charge) Determination 2011 (No. 1) made under section 193 of the Health Act 1993 revokes DI2010-20 and determines the interest charged on the aggregate amount of fees and charges unpaid after the due date


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Disallowable Instrument DI2011-96 being the Heritage (Council Member) Appointment 2011 (No. 6) made under section 17 of the Heritage Act 2004 revokes DI2008-71 and appoints a specified person as a member of the ACT Heritage Council, representing engineering.

Disallowable Instrument DI2011-97 being the Heritage (Council Member) Appointment 2011 (No. 7) made under section 17 of the Heritage Act 2004 revokes DI2008-71 and appoints a specified person as a member of the ACT Heritage Council, representing architecture.

Disallowable Instrument DI2011-99 being the Heritage (Council Member) Appointment 2011 (No. 3) made under section 17 of the Heritage Act 2004 revokes DI2008-71 and appoints a specified person as a member of the ACT Heritage Council, representing the property sector.

Disallowable Instrument DI2011-100 being the Heritage (Council Member) Appointment 2011 (No. 5) made under section 17 of the Heritage Act 2004 revokes DI2008-71 and appoints a specified person as a member of the ACT Heritage Council, representing nature conservation.

Disallowable Instrument DI2011-101 being the Heritage (Council Chairperson) Appointment 2011 (No. 1) made under section 17 of the Heritage Act 2004 revokes DI2009-58 and appoints a specified person as chairperson of the ACT Heritage Council.

Disallowable Instrument DI2011-102 being the Heritage (Council Deputy Chairperson) Appointment 2011 (No. 1) made under section 17 of the Heritage Act 2004 revokes DI2008-70 and appoints a specified person as deputy chairperson of the ACT Heritage Council.

Disallowable Instrument DI2011-103 being the Road Transport (General) Vehicle Registration and Related Fees Determination 2011 made under section 96 of the Road Transport (General) Act 1999 revokes DI2010-73 and determines fees payable for the purposes of the Act.

Disallowable Instrument DI2011-104 being the Road Transport (General) Driver Licence and Related Fees Determination 2011 made under section 96 of the Road Transport (General) Act 1999 revokes DI2010-74 and determines fees payable for the purposes of the Act.

Disallowable Instrument DI2011-105 being the Road Transport (General) Refund and Dishonoured Payments Fees Determination 2011 made under section 96 of the Road Transport (General) Act 1999 revokes DI2010-76 and determines fees payable for the purposes of the Act.

Disallowable Instrument DI2011-106 being the Road Transport (General) Numberplate Fees Determination 2011 made under section 96 of the Road Transport (General) Act 1999 revokes DI2010-75 and determines fees payable for the purposes of the Act.

Disallowable Instrument DI2011-107 being the Road Transport (General) Parking Permit Fees Determination 2011 made under section 96 of the Road Transport (General) Act 1999 revokes DI2010-77 and determines fees payable for the purposes of the Act.

Disallowable Instrument DI2011-108 being the Road Transport (General) Fees For Publications Determination 2011 made under section 96 of the Road Transport (General) Act 1999 revokes DI2010-78 and determines fees payable for the purposes of the Act.


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Disallowable Instrument DI2011-109 being the Dangerous Goods (Road Transport) Fees and Charges Determination 2011 made under section 194 of the Dangerous Goods (Road Transport) Act 2009 revokes DI2010-154 and determines fees payable for the purposes of the Act.

Disallowable Instrument DI2011-110 being the Road Transport (General) Public Passenger Services Licence and Accreditation Fees Determination 2011 made under section 96 of the Road Transport (General) Act 1999 revokes DI2010-110 and determines fees payable for the purposes of the Act.

Disallowable Instrument DI2011-111 being the Heritage (Council Member) Appointment 2011 (No. 8) made under section 17 of the Heritage Act 2004 appoints a specified person as a member of the ACT Heritage Council, representing the community.

Disallowable Instrument DI2011-112 being the Public Health (Chief Health Officer) Appointment 2011 (No. 2) made under section 7 of the Public Health Act 1997 repeals DI2011-82 and DI2011-83 and appoints a specified person as the Chief Health Officer.

Disallowable Instrument DI2011-113 being the Crimes (Sentence Administration) (Sentence Administration Board) Appointment 2011 (No. 1) made under paragraph 174(1)(b) of the Crimes (Sentence Administration) Act 2005 appoints a specified person as deputy chair of the Sentence Administration Board.

Disallowable Instruments—Comment The Committee has examined the following disallowable instruments and offers these comments on them: Retrospective application - Positive comment

Disallowable Instrument DI2011-52 being the Legislative Assembly (Members' Staff) Members' Salary Cap Determination 2011 (No. 1) made under subsections 10(3) and 20(4) of the Legislative Assembly (Members' Staff) Act 1989 revokes DI2010-156 and determines the conditions under which Members may employ staff and engage consultants or contractors.

Disallowable Instrument DI2011-53 being the Legislative Assembly (Members' Staff) Speaker's Salary Cap Determination 2011 (No. 1) made under subsections 5(3) and 17(4) of the Legislative Assembly (Members' Staff) Act 1989 revokes DI2010-157 and determines the conditions under which the Speaker may employ staff and engage consultants or contractors.

The instruments mentioned above set a salary cap for the staff of Members of the Legislative Assembly and the Speaker of the Legislative Assembly, respectively. In each case, the instruments state that they are “taken to have commenced on 1 July 2010”, thereby having a retrospective operation. The Committee notes that, in each case, the Explanatory Statement contains the following statement:

The new allocation is expressed to operate retrospectively as the pay increase applies from 1 July 2010. The retrospective effect of the commencement provision contained in this instrument has a non-prejudicial effect on persons other than the Territory or a territory authority.


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The Committee notes with approval that the statement addresses any potential issues arising from the operation of section 76 of the Legislation Act 2001, which prohibits non-prejudicial retrospectivity.

This comment does not require a response from the Minister.

Retrospective application - Positive comment

Disallowable Instrument DI2011-54 being the Corrections Management (Official Visitor) Appointment 2011 (No. 1) made under subsection 57(1) of the Corrections Management Act 2007 appoints a specified person as an official visitor.

The Committee notes that this instrument, which appoints a specified person as an official visitor, under the Corrections Management Act 2007, has a retrospective operation, in that it is “taken to have commenced on 15 February 2011”, having been made on 6 April 2011. The Explanatory Statement for the instrument contains the following statement:

The instrument has retrospective application to the day after the cessation of [the specified person’s] previous appointment and commences from 15 February 2011. The appointment will not adversely affect any person’s rights and does not impose liabilities on a person.

The Committee notes with approval that the statement addresses any potential issues arising from the operation of section 76 of the Legislation Act 2001, which prohibits non-prejudicial retrospectivity.

This comment does not require a response from the Minister.

Incorporation of material by reference

Disallowable Instrument DI2011-61 being the Nature Conservation (Special Protection Status) Declaration 2011 (No. 1) made under section 33 of the Nature Conservation Act 1980 revokes DI2005-64 and declares specified species to have special protection status.

This instrument declares specified species to have “special protection status”, under section 33 of the Nature Conservation Act 1980. Section 33 provides:

33 Special protection status

(1) The conservator may, in writing, declare the members of a species of migratory animal to have special protection status if the protection of the species is the object, or part of the object, of an Act of the Commonwealth, or of an international agreement (however described) entered into by the Commonwealth.

(2) The conservator shall, in writing, declare the members of a species of native animal or native plant to have special protection status if—

(a) he or she believes on reasonable grounds that the species is threatened with extinction; or

(b) the Minister makes a declaration under section 38 that the species is endangered.

(3) A declaration under this section is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act 2001.


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(4) In this section:

migratory animal means a migratory animal that periodically or occasionally visits Australia, the Australian coastal sea or the sea over the continental shelf of Australia.

The operative part of the instrument is section 2, which provides:

2. Details of instrument

I declare that species of native animals or native plants listed in the attached schedules 1, 2 and 3 have special protection status.

Schedule 1 provides:

SCHEDULE 1

SPECIAL PROTECTION STATUS MIGRATORY ANIMAL WILDLIFE

Migratory species listed in the:

Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention)

China-Australia Migratory Bird Agreement (CAMBA)

Japan-Australia Migratory Bird Agreement (JAMBA)

Republic of Korea - Australia Migratory Bird Agreement (ROKAMBA)

Schedule 2 provides (in part):

SCHEDULE 2

SPECIAL PROTECTION STATUS WILDLIFE VULNERABLE TO OR THREATENED WITH EXTINCTION

1. Species of flora and fauna listed as vulnerable, endangered, critically endangered and extinct under the provisions of the Environment Protection and Biodiversity Conservation Act 1999 (C’wlth),

Lists currently available at:

http://www.environment.gov.au/; or

http://www.environment.gov.au/cgi-bin/sprat/public/publicthreatenedlist.pl?wanted=fauna

http://www.environment.gov.au/cgi-bin/sprat/public/publicthreatenedlist.pl?wanted=flora

and;

2. Those species listed below ….

Schedule 2 then lists various species of fish, birds, invertebrates and “other”.

Schedule 3 lists various species of land mammals, birds, fish, amphibians, reptiles, invertebrates and plants that (according to the heading to Schedule 3) have been declared endangered, by ministerial determination.


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While the issue is not expressly dealt with, it appears that the lists relied upon in the international agreements referred to in Schedule 1 and in instruments made under the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth) (to which Schedule 2 refers) are intended to be incorporated, as they exist from time to time. The Committee notes that the Explanatory Statement for the instrument states:

To ensure that the SPS Instrument is consistent with the Commonwealth species list, the Schedules in this instrument refers to the Commonwealth listings and Commonwealth website as they keep an up-to date list of threatened species and are regularly updated by the Commonwealth.

The Committee notes that section 47 of the Legislation Act 2001 deals with the application of laws or instruments by ACT laws. It provides (in part):

47 Statutory instrument may make provision by applying law or instrument

(1) This section applies if an Act, subordinate law or disallowable instrument (the authorising law) authorises or requires the making of a statutory instrument (the relevant instrument) about a matter.

(2) The relevant instrument may make provision about the matter by applying an ACT law—

(a) as in force at a particular time; or

(b) as in force from time to time.

(3) The relevant instrument may make provision about the matter by applying a law of another jurisdiction, or an instrument, as in force only at a particular time.

Not For information on the operation of s (3), see the examples to s (9).

(4) If the relevant instrument makes provision about the matter by applying a law of another jurisdiction or an instrument, the following provisions apply:

(a) if subsection (3) is displaced by, or under authority given by, an Act or the authorising law—the law of the other jurisdiction or instrument is applied as in force from time to time;

Note For the displacement of s (3), see s 6, examples 1 and 2.

(b) if subsection (3) is not so displaced and the relevant instrument does not provide that the law of the other jurisdiction or instrument is applied as in force at a particular time—the law or instrument is taken to be applied as in force when the relevant instrument is made.

………………………………..

Unless disapplied, subsection 47 (3) would appear to operate to make the various lists that are applied by this instrument apply as they exist at the time that the instrument was made. The statement in the Explanatory Statement, however, would tend to suggest that there is an intention that the lists referred to in Schedule 2 should operate as they exist from time to time.

The Committee also notes that there is nothing, either on the face of the instrument or in the Explanatory Statement for the instrument, to indicate how (if at all) section 47 of the Legislation Act is intended to apply to the instrument.

The Committee would appreciate the Minister’s advice as to the application of section 47 of the Legislation Act to this instrument.


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Are these instruments disallowable?

Disallowable Instrument DI2011-75 being the Territory Records (Advisory Council) Appointment 2011 (No. 1) made under sections 44 and 45 of the Territory Records Act 2002 appoints a specified person as chair of the Territory Records Advisory Council.

Disallowable Instrument DI2011-76 being the Territory Records (Advisory Council) Appointment 2011 (No. 2) made under sections 44 and 45 of the Territory Records Act 2002 appoints a specified person as deputy chair of the Territory Records Advisory Council.

Disallowable Instrument DI2011-77 being the Territory Records (Advisory Council) Appointment 2011 (No. 3) made under section 44 of the Territory Records Act 2002 appoints a specified person as a member of the Territory Records Advisory Council, representing community associations interested in historical or heritage issues.

Disallowable Instrument DI2011-78 being the Territory Records (Advisory Council) Appointment 2011 (No. 4) made under section 44 of the Territory Records Act 2002 appoints a specified person as a member of the Territory Records Advisory Council, representing entities interested in Aboriginal and Torres Strait Islander heritage.

Disallowable Instrument DI2011-79 being the Territory Records (Advisory Council) Appointment 2011 (No. 5) made under section 44 of the Territory Records Act 2002 appoints a specified person as a member of the Territory Records Advisory Council, representing professional organisations.

Disallowable Instrument DI2011-80 being the Territory Records (Advisory Council) Appointment 2011 (No. 6) made under section 44 of the Territory Records Act 2002 appoints a specified person as a member of the Territory Records Advisory Council, representing organisations interested in public administration, governance and public accountability.

The six instruments mentioned above appoint six specified persons as members of the Territory Records Advisory Council. Two of the specified persons are appointed as chair and as deputy chair of the Council. The instruments are all expressed to be disallowable instruments.

Division 19.3.3 of the Legislation Act 2001 provides for the scrutiny by the Legislative Assembly of instruments appointing persons to statutory positions. Section 229 makes instruments of appointment disallowable by the Legislative Assembly. However, section 227 also limits the application of Division 19.3.3 (and, therefore, section 229). It provides:

227 Application—div 19.3.3

(1) This division applies if a Minister has the power under an Act to appoint a person to a statutory position.

(2) However, this division does not apply to an appointment of—

(a) a public servant to a statutory position (whether or not the Act under which the appointment is made requires that the appointee be a public servant); or

(b) a person to, or to act in, a statutory position for not longer than 6 months, unless the appointment is of the person to, or to act in, the position for a 2nd or subsequent consecutive period; or

(c) a person to a statutory position if the only function of the position is to advise the Minister.


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The key provision above (for the purposes of this comment) is paragraph (2)(a). An instrument of appointment is generally not a disallowable instrument if the appointee is a public servant. It is for this reason that the Committee has requested that the Explanatory Statements for instruments of appointment contain words to the effect of “the appointee is not a public servant”. This allows the Committee (and the Legislative Assembly) to be satisfied that paragraph 227(2)(a) of the Legislation Act has been taken into account and that instruments are, in fact, disallowable.

The Explanatory Statements for the instruments mentioned above contain no indication as to whether or not the persons appointed are public servants. While the Committee notes that various of the appointments are, in fact, re-appointments, the Committee notes that the persons in question may subsequently have become public servants. In any event, the Committee considers that a statement about a person’s non-public-servant status should be included in the Explanatory Statement. As the Committee has previously stated, this is not an onerous requirement. Is this instrument disallowable?

Disallowable Instrument DI2011-88 being the Education (Government Schools Education Council) Appointment 2011 (No. 1) made under section 57 of the Education Act 2004 appoints a specified person as a community member of the Government Schools Education Council.

This instrument re-appoints a specified person as a community member of the Government Schools Education Council. The Explanatory Statement for the instrument states that it is a disallowable instrument.

Division 19.3.3 of the Legislation Act 2001 provides for the scrutiny by the Legislative Assembly of instruments appointing persons to statutory positions. Section 229 makes instruments of appointment disallowable by the Legislative Assembly. However, section 227 also limits the application of Division 19.3.3 (and, therefore, section 229). It provides:

227 Application—div 19.3.3

(1) This division applies if a Minister has the power under an Act to appoint a person to a statutory position.

(2) However, this division does not apply to an appointment of—

(a) a public servant to a statutory position (whether or not the Act under which the appointment is made requires that the appointee be a public servant); or

(b) a person to, or to act in, a statutory position for not longer than 6 months, unless the appointment is of the person to, or to act in, the position for a 2nd or subsequent consecutive period; or

(c) a person to a statutory position if the only function of the position is to advise the Minister.

The key provision above (for the purposes of this comment) is paragraph (2)(a). An instrument of appointment is generally not a disallowable instrument if the appointee is a public servant. It is for this reason that the Committee has requested that the Explanatory Statements for instruments of appointment contain words to the effect of “the appointee is not a public servant”. This allows the Committee (and the Legislative Assembly) to be satisfied that paragraph 227(2)(a) of the Legislation Act has been taken into account and that instruments are, in fact, disallowable.


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The Explanatory Statement for this instrument contains no indication as to whether or not the person appointed is a public servant. While the Committee notes that the appointment is, in fact, a re-appointment, there is no guarantee that the person in question has not subsequently become a public servant. In any event, the Committee considers that a statement about the person’s non-public-servant status should be included in the Explanatory Statement. As the Committee has previously stated, this is not an onerous requirement.

Is this instrument validly made?

Disallowable Instrument DI2011-89 being the ACT Teacher Quality Institute Board Appointment 2011 (No. 1) made under Division 3.2 of the ACT Teacher Quality Institute Act 2010 appoints a specified person as chair of the Board of the ACT Teacher Quality Institute.

This instrument appoints a specified person as chair of the Board of the ACT Teacher Quality Institute. The prefatory part of the instrument indicates that it is made under “Division 3.2” of the ACT Teacher Quality Institute Act 2010. Division 3.2 of that Act includes section 15, which provides (in part):

15 Institute board members

(1) The institute board has at least 12, but not more than 14, members.

(2) The institute board must include the following members:

(a) a chair;

Note The chair of the governing board must be appointed under the Financial Management Act 1996, s 79.

…………………………..

The Committee notes that the note to paragraph 15(2)(a) of the Act states that the chair must be appointed under the Financial Management Act 1996.

In the light of the note, the Committee seeks the Minister’s assurance that this appointment has validly been made.

Is this instrument validly made?

Disallowable Instrument DI2011-90 being the Canberra Institute of Technology (Advisory Council) Appointment 2011 (No. 5) made under section 31 of the Canberra Institute of Technology Act 1987 appoints a specified person as a member of the Canberra Institute of Technology Advisory Council, representing the interests of industry and commerce.

This instrument appoints a specified person as a member of the Canberra Institute of Technology Advisory Council, representing the interests of industry and commerce. The prefatory part of this instrument states that it is made under “section 32 (appointment of chair”)” of the Canberra Institute of Technology Act 1987. There is otherwise nothing in the instrument, or the Explanatory Statement for the instrument, to indicate that the person appointed is appointed as the chair of the Council. The Explanatory Statement for the instrument indicates that the instrument is made under section 31 of the Canberra Institute of Technology Act, which, in fact, deals with the appointment of “ordinary” members of the Council.

In the light of the above, the Committee seeks the Minister’s assurance that this appointment has validly been made.


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Drafting issue

Disallowable Instrument DI2011-98 being the Work Safety (ACT Code of Practice for First Aid) Code of Practice 2011 made under section 18 of the Work Safety Act 2008 approves First Aid in the Workplace as a code of practice.

The Committee notes that the Explanatory Statement for this instrument states:

Section 18 of the Work Safety Act 2008 provides that the Minister may approve a code of practice to provide practical guidance about the Act. Section 18 (2) provides that before approving a proposed code of practice, the Minister must refer consult the ACT Work Safety Council. At its 3rd on 18 June 2010, the Council noted that approval would be sought to have the ACT Code of Practice for First Aid notified as a Code of Practice in the ACT.

The Code of Practice provides guidance to persons conducting or administering First Aid at business or undertaking. The Code sets out practical guidance to prevent the occurrence of injury and illness, and practical guidance for administering First Aid.

The Committee notes that there appear to be extra and/or missing words in the second and third sentences of the first paragraph and in the first sentence of the second paragraph listed above.

This comment does not require a response from the Minister. Subordinate laws—No comment The Committee has examined the following subordinate laws and offers no comments on them:

Subordinate Law SL2011-10 being the Climate Change and Greenhouse Gas Reduction Regulation 2011 made under the Climate Change and Greenhouse Gas Reduction Act 2010 establishes voluntary sector agreements with industry and community to address climate change.

Subordinate Law SL2011-12 being the Leases (Commercial and Retail) Amendment Regulation 2011 (No. 1) made under the Leases (Commercial and Retail) Act 2011 prescribes, as a shopping centre, a group of premises located in the City and exempts certain leases under the Act.

Subordinate Law SL2011-13 being the Magistrates Court (Workers Compensation Infringement Notices) Amendment Regulation 2011 (No. 1) made under the Magistrates Court Act 1930 updates the schedule of offences that fall within the framework created to enable infringement notices to be issued for specified offences, to reflect revised workers' compensation offence provisions. Subordinate laws—Comment The Committee has examined the following subordinate laws and offers the following comments on them:

Human rights issues

Subordinate Law SL2011-11 being the Road Transport (Alcohol and Drugs) Amendment Regulation 2011 (No. 1) made under the Road Transport (Alcohol and Drugs) Act 1977 amends and Road Transport (Alcohol and Drugs) Regulation 2000 to make provision for the use of certain drug testing equipment for the purposes of the Act.


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This subordinate law amends the Road Transport (Alcohol and Drugs) Regulation 2000, to provide for certain new drug testing equipment, as well as providing for procedures relating to the use of the equipment. The Committee notes that the Explanatory Statement for the subordinate law contains the following statement:

The amendments in themselves are not expected to affect human rights, in that they do not create new obligations, create offences, impose penalties or significantly alter any existing entitlements or rights. The amendments are nevertheless part of a scheme for drug testing motorists that does materially affect several human rights. The Explanatory Statement for the Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 discusses the human rights implications of roadside drug testing schemes and the justification for the introduction of such a scheme in the ACT as a reasonable limitation of rights for the purpose of section 28 of the Human Rights Act 2004. Interested readers are referred to that Explanatory Statement, which is available on the Legislation Register at http://www.legislation.act.gov.au/default.asp.

The Committee makes no further comment on the subordinate law.

This comment does not require a response from the Minister. Minor drafting issue

Subordinate Law SL2011-14 being the Mental Health (Treatment and Care) Amendment Regulation 2011 (No. 1) made under the Mental Health (Treatment and Care) Act 1994 amends the Mental Health (Treatment and Care) Regulation by adding a new civil agreement with Victoria to the list of jurisdictions whose Mental Health Acts are the subject of Ministerial Agreements with the ACT.

This subordinate law amends the Mental Health (Treatment and Care) Regulation 2003 (the principal subordinate law). The Committee notes that the Explanatory Statement for this subordinate law states:

The Regulation lists the jurisdictions’ whose Mental Health Acts are the subject of Ministerial Agreements with the ACT to allow interstate recognition of each others’ laws; the relevant legislation of those jurisdictions and the provisions of the legislation that allow for the planned interstate transfer or the apprehension and return, of patients with a mental illness as defined under the Act between the named jurisdictions.

As new Agreements are developed or existing agreements are reviewed, the Regulation requires amendment to update the list of jurisdictions, the relevant interstate Mental Health Acts and the specific provisions.

This amendment to the Regulation will add a new civil Agreement with Victoria, signed November 2010 and revise the references relating to the current forensic Agreement with Victoria to reflect the Victorian Mental Health legislation and Agreement accurately.

This explanation would seem to suggest that reference to an additional agreement, relating to Victoria, has been added to the principal subordinate law.

The Committee notes that, prior to the amendments made by this subordinate law taking effect, the definition of interstate agreement, in the Dictionary to the principal subordinate law, provides (in part):

interstate agreement means any of the following agreements about the interstate application of mental health laws:


http://www.legislation.act.gov.au/default.asp

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(a) the agreement dated 25 July 2002 between the Minister for Health for the ACT and the Minister for Health of the State of Victoria (the Victorian agreement);

………………………

Section 5 of this subordinate law replaces paragraph (a) of the definition with the following:

(a) the agreements dated 8 July 2002 and 23 November 2010 between the Minister for Health for the ACT and the Minister for Health of the State of Victoria (the Victorian agreement);

The Committee notes the difference in dates for the July 2002 agreements mentioned in the definition. That being so, it would seem that, in addition to adding a new agreement, the new definition is also replacing the reference to the earlier agreement.

The Committee would be grateful if the Minister could advise whether, in fact, the reference to the earlier agreement is also being amended. GOVERNMENT RESPONSES The Committee has received responses from: The Treasurer, dated 20 June 2011, in relation to comments made in Scrutiny Report 37

concerning the Planning and Development (Lease Variation Charges) Amendment Bill 2011.

The Attorney-General, dated 20 June 2011, in relation to comments made in Scrutiny Report 36 concerning the Electoral Legislation Amendment Bill 2011.

The Minister for Economic Development, undated, in relation to comments made in Scrutiny Report 37 concerning the Gaming Machine (Club Governance) Amendment Bill 2011.

The Committee wishes to thank the Treasurer, the Attorney-General and the Minister for Economic Development for their helpful comments. Vicki Dunne, MLA Chair June 2011

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JUSTICE AND COMMUNITY SAFETY—STANDING COMMITTEE (PERFORMING THE DUTIES OF A SCRUTINY OF BILLS AND

SUBORDINATE LEGISLATION COMMITTEE)

REPORTS—2008-2009-2010-2011

OUTSTANDING RESPONSES

Bills/Subordinate Legislation

Report 1, dated 10 December 2008 Development Application (Block 20 Section 23 Hume) Assessment Facilitation Bill

2008 Report 2, dated 4 February 2009 Education Amendment Bill 2008 (PMB) Report 8, dated 22 June 2009 Disallowable Instrument DI2009-75 - Utilities (Consumer Protection Code)

Determination 2009 Report 10, dated 10 August 2009 Disallowable Instrument DI2009-93 - Utilities (Grant of Licence Application Fee)

Determination 2009 (No. 2) Report 12, dated 14 September 2009 Civil Partnerships Amendment Bill 2009 (PMB) Report 14, dated 9 November 2009 Building and Construction Industry (Security of Payment) Bill 2009 Disallowable Instrument DI2009-58 - Heritage (Council Chairperson) Appointment

2009 (No. 1) Report 18, dated 1 February 2010 Planning and Development (Notifications and Review) Amendment Bill 2009 (PMB) Report 19, dated 22 February 2010 Education (Suspensions) Amendment Bill 2010 (PMB) Report 22, dated 27 April 2010 Infrastructure Canberra Bill 2010 (PMB) Radiation Protection (Tanning Units) Amendment Bill 2010 (PMB) Report 24, dated 28 June 2010 Disallowable Instrument DI2010-65 - Auditor-General (Standing Acting Arrangements)

Appointment 2010

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Bills/Subordinate Legislation

Report 30, dated 15 November 2010 Corrections Management (Mandatory Urine Testing) Amendment Bill 2010 (PMB) Discrimination Amendment Bill 2010 (PMB) Report 34, dated 24 March 2011 Disallowable Instrument DI2011-13 - University of Canberra (Academic Board) Statute

2011 Disallowable Instrument DI2011-17 - Cultural Facilities Corporation (Governing Board)

Appointment 2011 (No. 1) Road Transport (Third-Party Insurance) Amendment Bill 2011 Report 36, dated 28 April 2011 Electoral (Casual Vacancies) Amendment Bill 2011 Food (Nutritional Information) Amendment Bill 2011 (PMB) Report 37, dated 16 June 2011 Disallowable Instrument DI2011-48 - Electricity Feed-in (Renewable Energy Premium)

Rate Determination 2011 (No. 1) Disallowable Instrument DI2011-49 - Public Sector Management Amendment

Standards 2011 (No. 3) Education and Care Services National Law (ACT) Bill 2011

Scrutiny Report · 2012. 11. 12. · Disallowable Instrument DI2011-63 being the Taxation...

Documents

Transcript of Scrutiny Report · 2012. 11. 12. · Disallowable Instrument DI2011-63 being the Taxation...