Thursday, 15 August 2024
Bills
Subordinate Legislation and Administrative Arrangements Amendment Bill 2024
Subordinate Legislation and Administrative Arrangements Amendment Bill 2024
Introduction and first reading
The PRESIDENT (01:46): I have a further message from the Legislative Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to make miscellaneous amendments to the Subordinate Legislation Act 1994 and to consequentially amend the Monetary Units Act 2004, to make miscellaneous amendments to the Administrative Arrangements Act 1983 and for other purposes.’
That the bill be now read a first time.
Motion agreed to.
Read first time.
Harriet SHING: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Harriet SHING (Eastern Victoria – Minister for Housing, Minister for Water, Minister for Equality) (01:46): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
Opening paragraphs
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Subordinate Legislation and Administrative Arrangements Amendment Bill 2024 (Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview
The Bill makes minor and technical changes to improve the operation and clarity of the Subordinate Legislation Act 1994 (SL Act) and the Administrative Arrangements Act 1983 (AA Act).
The objective of the proposed Bill is to:
• clarify and improve the operation of the SL Act in its governance of the development of subordinate legislation by the Executive Government; and
• clarify and improve the operation of the AA Act by improving the usability of Orders in Council made under the AA Act and providing greater certainty and clarity as to their effect.
The reforms proposed address issues identified by the Department of Premier and Cabinet and other government departments in the administration of the two Acts.
Specifically, the Bill will amend the SL Act to:
• add provisions to assist with the interpretation of key definitions in the SL Act, including clarifying the definitions of ‘legislative character’ and ‘administrative character’. The definitions are applied to determine whether the SL Act applies to subordinate instruments;
• expressly provide for departmental consultation in the development of statutory rules or legislative instruments, to reflect the departmental consultation process that occurs in practice. The SL Act currently only requires consultation with impacted Ministers whose area of responsibility may be affected by the proposed statutory rule or legislative instrument;
• extend the application of an exemption from regulatory impact statement processes so that it is available for statutory rules, as well as legislative instruments, where the instrument is responding to a public emergency, urgent public health or safety issue or damage to the environment, resource sustainability or the economy. The SL Act currently only provides for such exemptions for legislative instruments; and
• update the requirements for how statutory rules are made available to reduce the current administrative burden and reflect that the public is likely to seek to purchase or inspect a statutory rule online. The Bill allows a physical copy of a statutory rule to be purchased online or at an approved bookshop, and requires that the responsible Minister ensures that a copy of a statutory rule is available for inspection without charge. The Government Printer is currently required to ensure that copies of statutory rules can be purchased from a prescribed bookshop, with no obligation to publish them online.
The Bill will amend the AA Act to:
• enable a consolidated Administrative Arrangements Order (AAO) version to be made by the Secretary and published online. This reform will address departmental and agency feedback that it is complicated to search for information on administrative changes and arrangements, such as changes to Ministerial responsibility without a consolidated AAO; and
• clarify the definition and scope of key terms in the AA Act, to assist departments and agencies in interpreting the AA Act.
Human Rights Issues
The Bill engages the following rights under the Charter:
• right to freedom of expression (section 15); and
• right to take part in public life (section 18).
For the following reasons, having taken into account all relevant factors, I am satisfied that the Bill is compatible with the Charter and, if any rights are limited, the limitation is reasonable and justified in a free and democratic society based on human dignity, equality and freedom in accordance with section 7(2) of the Charter.
Right to freedom of expression (section 15)
Section 15(1) of the Charter provides that every person has the right to hold an opinion without interference, including the freedom to seek, receive and impart information and ideas of all kinds orally, in writing, in print, by way or art or in another medium chosen by that person.
Clauses 3 and 28 of the Bill clarify key definition provisions of the SL Act and AA Act. The clarifications will make it easier for departments and agencies to understand their responsibilities, including, for example, being able to identify where subordinate legislation requires community consultation through a regulatory impact statement process. As a result, the Bill may enhance the right to freedom of expression by clarifying the circumstances in which community consultation should occur, thereby enabling people to more easily seek to enforce that right if consultation does not occur.
Accordingly, I consider that the Bill is consistent with the right to freedom of expression in section 15 of the Charter.
Right to take part in public life (section 18)
Section 18(1) of the Charter provides that every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives.
The right applies to a wide range of activities such as state and local politics and public administration. It might include a person being involved in politics or sharing their opinion in an election or referendum. Every eligible person has the right to vote in state and local council elections.
Clauses 3 and 28 of the Bill clarify key definition provisions of the SL Act and AA Act. These provisions make it easier for departments and agencies to understand their responsibilities, including for example being able to identify whether an instrument is a legislative instrument or, specifically, whether it is of a legislative or purely administrative character for the purposes of the SL Act. The incorrect characterisation of an instrument may lead to a lack of appropriate community scrutiny, especially as instruments characterised as administrative in character are not subject to a regulatory impact statement process. As such, the Bill may enhance the right to take part in public life by clarifying definitions and the circumstances in which community consultation should occur. This ensures the community can express their views about issues that affect them, and more easily seek to enforce that right if consultation does not occur.
Clause 9 provides for the exemption of statutory rules or legislative instruments from the application with all or any of the provisions of the SL Act, including from public consultation requirements. This has an impact on the right to take part in public life by limiting the public’s ability to be consulted on the making of statutory rules and legislative instruments. However, this is justified because the new exemption grounds only apply in specific circumstances that help to maintain the status quo and allow the government to act quickly during periods of a declared emergency.
Clause 18 requires statutory rules to be available online. The Government Printer is currently required to ensure that copies of statutory rules can be purchased from a prescribed bookshop but there is no requirement that they be made available online. Clause 18 modernises the SL Act by requiring statutory rules to be made available online or at an approved bookshop. Given current technology, much of the public is likely to seek information online, so requiring statutory rules to also be available in this way rather than at specific physical locations will make statutory rules more accessible to a broader portion of the public. Improved access to statutory rules will enhance the right to take part in public life by ensuring that people are aware of their rights and obligations under those rules.
Similarly, clause 30 provides for the electronic publication of AAO consolidated versions to be published online. In addition to ensuring information on administrative changes and arrangements is easier for departments and agents to access, it will also ensure that members of the public can more easily access this information and be made aware of changes such as changes to Ministerial responsibility. Improved access to AAO consolidated versions will enhance the right to take part in public life by ensuring that people are more clearly aware of administrative changes and arrangements.
Accordingly, I consider that the Bill is consistent with the right to take part in public life in section 18 of the Charter.
Conclusion
The Bill promotes and protects Charter rights. To the extent that the Bill affects or limits Charter rights, I consider that these limitations as reasonable and demonstrably justifiable.
Hon Jaclyn Symes MP
Attorney-General
Minister for Emergency Services
Second reading
That the bill be now read a second time.
Ordered that second-reading speech be incorporated into Hansard:
The Subordinate Legislation and Administrative Arrangements Amendment Bill 2024 (Bill) aims to improve the operation and clarity of the Subordinate Legislation Act 1994 (SL Act) and the Administrative Arrangements Act 1983 (AA Act).
The reforms are all minor and technical in nature and address issues identified by the Department of Premier and Cabinet and other government departments in the administration of the SL Act and AA Act.
Key SL Act reforms
Clarification of definitions
The Bill will add provisions to the SL Act to assist with the interpretation of ‘legislative character’ and ‘administrative character’, which are definitions that are applied to determine whether the SL Act applies to subordinate instruments. Departments and agencies have indicated that, at times, interpreting and applying these definitions presents challenges, so the Bill aims to make these definitions clearer.
Departmental consultation
The SL Act requires that the Minister must, in the preparation of statutory rules and legislative instruments and where the Subordinate Legislation Act 1994 Guidelines require consultation, ensure that consultation occurs with any other Minister whose area of responsibility may be affected by the proposed statutory rule or legislative instrument. The Bill will permit consultation to also occur with impacted public sector body Heads, to reflect the departmental consultation that occurs in practice. The Bill provides that a failure to undertake this consultation will not affect the operation of the statutory rule or legislative instrument.
Public emergency exemption
Currently, legislative instruments can be exempt from regulatory impact statement processes where the instrument is responding to a public emergency, urgent public health or safety issue or damage to the environment, resource sustainability or the economy. The Bill will extend this emergency exemption ground to apply to statutory rules that have not already been extended under section 9 of the SL Act.
Online access to statutory rules
The Government Printer is currently required to ensure that copies of statutory rules can be purchased from a prescribed bookshop. This means that statutory rules are, at present, not required to be made available for purchase online. To modernise the SL Act, the Bill will require that the Government Printer makes every effort to ensure a physical copy of a statutory rule can be purchased online or an approved bookshop. The Minister can recommend to the Governor in Council that it declare by order published in the Government Gazette an approved bookshop. Ministers must also ensure that a copy of a statutory rule is available for inspection without charge.
Key AA Act reforms
Consolidated Administrative Arrangements Order
The Bill will allow for a consolidated Administrative Arrangements Order (AAO) version to be made. This reform will address departmental and agency feedback that it is complicated to search for information on administrative changes and arrangements, such as changes to Ministerial responsibility. An AAO consolidated version published in accordance with the Bill will be admissible as evidence thereof before all courts and, unless the contrary is proved, a document purporting to be an AAO consolidated version will be what it purports to be.
Other amendments to the AA Act
Further amendments are proposed to clarify the definition and scope of key terms in the AA Act, to assist departments and agencies in interpreting the AA Act.
Conclusion
These minor and technical changes will improve the operation and clarity of the SL Act and the AA Act.
I commend the Bill to the House.
Evan MULHOLLAND (Northern Metropolitan) (01:47 ): I move:
That debate on this bill be adjourned for one week.
Motion agreed to and debate adjourned for one week.