Legislation issues
Calling all “instrument makers”
In Victoria (Australia) agencies which propose subordinate legislation (mainly, regulations) are required to comply with specific procedural requirements at the time they are made. Not only that, subordinate legislation is given a “life” of only ten years, following which the process must be followed once again. The reason for all of this is largely to ensure that alternatives to the proposed form of regulation are considered. The procedure which agencies are required to follow includes preparation of a regulatory impact statement, publicity and consideration of submissions made by stakeholders.
Proposals to extend these requirements to other documents are now being considered by the Victorian Government. The name of the initiative tells the story —it is part of the Reducing the Regulatory Burden program.
Under the proposal, consultation will be required before a legislative instrument is made, in much the same way as it is now required for subordinate legislation. There will, similarly, be a requirement for a regulatory impact statement to be prepared and publicised. The RIS is to assess costs and benefits, including—
“an assessment of the economic, environmental and social impact and the likely administration and compliance costs including resource allocation costs”
of the proposal. The obligation to undertake this work will fall upon the sectoral agency, rather quaintly described in the proposals as the instrument maker.
Not all documents will trigger these new requirements. While a “legislative instrument”, in general terms, will be—
“an instrument made under an Act or statutory rule that is of a legislative character ...”
many documents are to be exempt if the proposals are implemented in their current form. These exemptions include local laws made by local government, planning schemes and instruments of a purely administrative character.
Submissions on the proposals were to be made by 15 February 2010. For more information, including a discussion paper, visit the Victorian Department of Premier and Cabinet website by clicking here. The Department is seeking, in particular, comment on the following issues:
- the definition of ‘legislative instrument’;
- proposed exemptions from the RIS requirements;
- Ministerial certification of legislative instruments; and
- a revised definition of ‘appreciable burden’.
Parliamentary Bills —drafting and amendment
The Australian Office of Parliamentary Counsel (OPC) is a specialist office which drafts proposed Acts (Bills) for sectoral agencies – that is for the Australian Executive Government – for introduction into the Parliament. Similar offices operate in each of the States. Legislation which is enacted by the Australian Parliament invariably starts life as a Bill drafted by OPC, which explains why the OPC’s objective (“outcome”) is—
“Laws passed by the Commonwealth Parliament are drafted in such a way that they give legal effect to the intended policy and form a coherent and readable body of Commonwealth laws.”
Although OPC is an Executive Government agency it is also available to draft Bills and amendments for non-Government parties in the Parliament. This is not an activity which occupies much of OPC’s time, it seems. One of OPC’s performance indicators is—
“Private members’ Bills drafted where resources permit.”
The expression “where resources permit” suggests that drafting of Bills for non-Government parties is a spare time activity for OPC. In 2008-2009, however, it was not even this: the OPC 2008-2009 Annual Report records that no requests to draft private members’ Bills were received during that year.
It also transpires that the number of amendments drafted for non-Government parties is not large. The number is fewer than the number of amendments drafted for the Government itself (that is, amendments by the Government to its own Bills), and sometimes fewer even than the number of amendments correcting OPC’s own drafting errors. The statistics for 2008-2009 (extracted from the OPC 2008-2009 Annual Report) are—
Government policy change |
Government new policy |
Government correction of drafting errors |
Non-government amendments |
Total |
812 (67.4%) |
340 (28.2%) |
14 (1.2%) |
38 (3.2%) |
1204 |
Evaluation questions for draft bills and regulations – the Quebec system
The economic impact of proposed laws is an issue of importance to law-makers. In Quebec, Canada, the Secretariat of the Ministerial Committee for Economic Prosperity and Development in 2005 devised a series of questions for assessing draft bills and regulations submitted to Cabinet which would have an economic impact on business. It is not apparent how other economic impacts are to be measured, whether the questions have been modified since 2005 nor, indeed, whether the questions are still being asked. Still, it is of interest that the questions include:
- objectives of the bill or draft regulation. (Actually, this is a heading, without questions under it. We can fill the gap: “What objectives are articulated in the draft bill or regulations?” and “Are these consistent with the objectives specified in the supporting documents?”);
- can the problem be resolved without recourse to legislation or regulation? (ahemm, a better question would be, “Can the objectives be achieved ...”);
- have administrative requirements regarding permits (&c) been strictly limited?
- [what are the] results of consultations with internal and external clients?
The consultation issue, as with the objectives issue
, is left only as a heading and not a list of question. We can start the list:
“Has comprehensive and effective consultation about the proposal taken place?”
Importantly, the Quebec questions do identify both internal and external consultation as being important. The s0-called “clients” (clientèles in the French version) who are consulted, however, would better be described as stakeholders. The term client seems rather inappropriate for regulatory activity – arguably the public at large is a client, as regulation takes place to achieve public objectives. A stakeholder, by contrast, is a person or group with a special interest in a proposal.
The scene at the right is a road in Patna, India (November 2009). There are many stakeholders affected by road laws – as is the case with most laws.
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