regulations
statutory rule in the context of human rights
and SARC must report to Parliament where it
considers a statutory rule to be incompatible
with the Charter. In 2012, SARC considered 158
statutory rules and 47 legislative instruments.
statutory rule raised human rights concerns for
SARC: the Offshore Petroleum and Greenhouse
Gas Storage Regulations 2011. SARC questioned
several aspects of the accompanying human
rights certificate, including: describing provisions
that limit human rights but not identifying them by
number; identifying possible inaccuracies; and
requesting further advice about the definition of
a "reportable incident", which appeared to be
different to that in the Act. The Minister for Energy
and Resources provided a detailed response.
process surrounding regulations equivalent to
that for Bills. The difference, however, is that the
process for scrutinising regulations is not made
publicly available, with information compiled
in an Annual Review by SARC and released
the following year. The Commission believes it
would assist informed scrutiny of regulations if
SARC was able to report regularly on legislative
instruments in Alert Digests in the same way as
it reports on Bills, rather than reporting annually.
The federal scrutiny process could be used as a
model for such reporting.
significant effect on human rights, as it contains
the practical detail often missing from primary
laws. One example where a government
program benefits from the articulation of rights
in the regulations is the Supported Residential
Services (Private Proprietors) Regulations 2012,
which include minimum standards for residential
services. These minimum standards reference
rights and rely on the rights framework articulated
in the Supported Residential Services (Private
Proprietors) Act 2010. The Department of Health
notes that "[t]he articulation of rights in a set of
standards is expected to have a positive impact
for residents".
SARC report raised human rights concerns in
relation to the Health (Commonwealth State
Funding Arrangements) Bill 2012. SARC did,
however, note that the Bill includes a power
to modify primary legislation by means of
subordinate legislation (commonly referred to as
"Henry VIII" clauses) and sought an explanation
from the Minister justifying the inclusion of such
a provision and whether it was an inappropriate
delegation of legislative power. From a Charter
scrutiny perspective, this practice is also
concerning as modifications introduced in this
way are not subject to the same scrutiny process
as primary legislation.
amendments
of human rights issues. The Fire Services Levy
Monitor Bill 2012 imposed heavy penalties for
making certain false, misleading or deceptive
statements. SARC wrote to the Minister to query
whether applying this penalty to unintentional
statements in non-commercial contexts breached
the right to freedom of expression. The Minister
responded that this was not the intention of
the Bill and the Government moved a House
amendment indicating that a clause would only
apply to conduct in trade or commerce and not
affect freedom of expression in non-commercial
contexts.
concerns with reverse onus provisions in the
Water Amendment (Governance and Other
Reforms) Bill 2012. Although no alterations
were made to the Bill, the Minister undertook to
request that the Department of Sustainability and
Environment review these provisions, assess the
viability of alternative options and propose any
amendments at the next available opportunity.
review of the Charter, it agreed in principle that
House amendments should be subject to human
rights scrutiny, although a process for doing so
has not yet been proposed.
pp 910.