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LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY Legal and Constitutional Affairs Committee

Report of Ministerial

Correspondence on Subordinate Legislation and Publications

October 2020 – July 2021

August 2021

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Contents

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Contents

Contents ...3

Chair’s Preface ...4

Committee Members ...5

Committee Secretariat ...6

Terms of Reference ...7

1 Introduction ... 9

2 Disallowance of Subordinate Legislation ... 11

Protective Disallowance Notices ... 11

Tabling of Subordinate Legislation ... 12

3 Ministerial Correspondence on Subordinate Legislation ... 13

Environment Protection Regulations No. 6 of 2020 ... 13

Plant Health Amendment Regulations No. 18 of 2020 ... 33

Batchelor Institute of Indigenous Tertiary Education (Gift Fund) By-Laws 2020 ... 37

Petroleum Regulations No. 31 of 2020 ... 46

Liquor Amendment Regulations No. 2 of 2021 ... 54

Building Amendment Regulations No. 3 of 2021 ... 56

Appendix A: List of Ministerial Correspondence on Subordinate Legislation ... 58

Appendix B: Subordinate Legislation commented on in 14th Assembly ... 59

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Report of Ministerial Correspondence on Subordinate Legislation and Publications

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Chair’s Preface

As rules, regulations and by-laws affect people in their day to day lives, it is important that the Assembly maintains a sufficient level of scrutiny of subordinate legislation to ensure that they keep within the purpose of the laws under which they are made and do not unduly affect people’s rights. As part of that scrutiny, the Committee obtains advice from its independent legal counsel, Professor Ned Aughterson, and writes to responsible Ministers regarding any questions or concerns the Committee has with a regulation. Ministers reply with clarification about the intended operation of the regulations or undertakings to correct any errors. This report places those letters on the public record and allows interested persons to see those clarifications or undertakings.

During the reporting period, the Committee considered 38 pieces of subordinate legislation.

As detailed in this report, the Committee’s legal counsel identified concerns regarding four regulations. It also came to the Committee’s attention that, following gazettal, two regulations (Liquor Amendment Regulations and Building Amendment Regulations), were not then tabled in the Assembly within 3 sitting days as required under section 63(1)(c) of the Interpretation Act 1978; thereby rendering the regulations of ‘no effect’.

The Committee is also responsible for monitoring compliance with statutory reporting requirements. For example, all Northern Territory government departments and a range of other organisations are required to provide annual reports on their activities to the Speaker or relevant Minister for tabling in the Assembly. It is pleasing to note that during the current reporting period all agencies, independent officers, statutory authorities and government owned corporations met their relevant reporting obligations.

On behalf of the Committee, I would like to thank Ministers, their staff and agencies for their responses to the Committee’s queries and I would like to thank staff of the Department of the Legislative Assembly. The Committee also acknowledges the significant contribution made by Professor Aughterson, and thanks him for his diligence in advising the Committee.

I also thank my fellow Committee members for their bipartisan approach in seeking to ensure a high standard of rules and regulations in the Northern Territory.

Mr Joel Bowden MLA Chair

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Committee Members

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Committee Members

Mr Joel Bowden Member for Johnston

Party: Territory Labor

Parliamentary Position Deputy Speaker Committee Membership

Standing: Legal and Constitutional Affairs House

Public Accounts

Chair: Legal and Constitutional Affairs Public Accounts

Deputy Chair: House

Ms Marie-Clare Boothby MLA Member for Brennan

Party: Country Liberals

Committee Membership

Standing Legal and Constitutional Affairs Mr Lawrence Costa

Member for Arafura

Party Territory Labor

Committee Membership

Standing Legal and Constitutional Affairs Public Accounts

Mr Steve Edgington MLA Member for Barkly

Party: Country Liberals

Committee Membership

Standing: Legal and Constitutional Affairs Mr Mark Monaghan MLA

Member for Fong Lim

Party: Territory Labor

Parliamentary Position Government Whip, Acting Deputy Speaker Committee Membership

Standing: Legal and Constitutional Affairs Public Accounts

Standing Orders

Deputy Chair: Legal and Constitutional Affairs, Public Accounts

On 23 February 2021 the Assembly discharged the Member for Blain, Mr Mark Turner MLA, from the Committee and appointed the Member for Arafura, Mr Lawrence Costa MLA, in his place. Pursuant to Standing Order 181, on 1 March 2021 Member for Nelson, Mr Gerard Maley MLA, was discharged from the Committee and replaced by Member for Barkly, Mr Steve Edgington MLA.

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Committee Secretariat

Committee Secretary: Julia Knight Administration Officer: Kim Cowcher

Contact Details: GPO Box 3721 DARWIN NT 0801

Tel: +61 08 8946 1485 Email: [email protected]

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Terms of Reference

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Terms of Reference

Standing Order 178

Legal and Constitutional Affairs Committee

(1) A Legal and Constitutional Affairs Committee will be appointed at the commencement of each Assembly to inquire into and report on such constitutional and legal matters as may be referred to it by:

(a) the Attorney-General, or (b) a resolution of the Assembly.

(2) The Committee will consist of 5 members.

Sessional Order 10

Subordinate Legislation and Publications Committee Duties Assigned to Legal and Constitutional Affairs Committee

The Assembly suspends the requirement to appoint a separate Subordinate Legislation and Publications Committee as required under Standing Order 176 and assigns all of the duties under that Standing Order to be undertaken by the Legal and Constitutional Affairs Committee as established under Standing Order 178.

Standing Order 176

Subordinate Legislation and Publications Committee

(1) A Subordinate Legislation and Publications Committee must be appointed at the commencement of each Assembly to examine and report upon all instruments of a legislative or administrative character and other papers which are required by statute to be laid upon the Table.

(2) The Committee must consist of five Members.

(3) The Committee will, with respect to any instrument of a legislative or administrative character which the Legislative Assembly may disallow or disapprove, consider:

(a) whether the instrument is in accordance with the general objects of the law pursuant to which it is made,

(b) whether the instrument trespasses unduly on personal rights or liberties, (c) whether the instrument unduly makes rights and liberties of citizens dependent

upon administrative and not upon judicial decisions,

(d) whether the instrument contains matter which in the opinion of the Committee should properly be dealt with in an Act,

(e) whether the instrument appears to make some unusual or unexpected use of the powers conferred by the statute under which it is made,

(f) whether there appears to have been unjustifiable delay in the publication or laying of the instrument before the Assembly, and

(g) whether for any special reason the form or purport of the instrument calls for elucidation.

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(4) The Committee, if it is of the opinion that an instrument should be disallowed or disapproved:

(a) will report that opinion and the grounds thereof to the Assembly before the end of the period during which any notice of the motion for disallowance of that instrument may be given to the Assembly, and

(b) if the Assembly is not meeting, may refer its opinion and the grounds thereof to the authority by which the instrument was made.

(5) The Committee, if it is of the opinion that any matter relating to any paper which is laid upon the Table of the Assembly should be brought to the notice of the Assembly, may report that opinion and matter to the Assembly.

(6) The Committee will inquire into and report, from time to time, on the printing, publication and distribution of publications or such matters as are referred to it by the Speaker or the Assembly.

(7) For the purposes of this Standing Order, ‘instrument of a legislative or administrative character’ has the same meaning as that defined in the Interpretation Act.

Adopted 20 October 2020

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Introduction

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1 Introduction

1.1 Pursuant to Sessional Order 10, the Legal and Constitutional Affairs Committee has been given the duties of the Subordinate Legislation and Publications Committee to examine and report on all instruments of a legislative or administrative character that the Assembly may disallow or disapprove and advise the Assembly whether the instrument has sufficient regard to the rights and liberties of individuals and the institution of Parliament.

1.2 Committees to examine subordinate legislation against such terms are common in Westminster style Parliaments. This scrutiny assists the Parliament to ensure other bodies use their delegated power to make laws according to certain principles. Those principles are detailed in Standing Order 176(3) of the Committee’s Terms of Reference.

1.3 Subordinate legislation is any regulation, rule or by-law made under an Act.1 Subordinate legislation takes effect from the time it is notified in the Northern Territory Government Gazette, or from the time specified in the legislation.2 However, where any Act confers the power to make or amend statutory rules, regulations and by-laws subject to disallowance under section 63 of the Interpretation Act 1978, there is a statutory requirement for all such instruments to be presented to the Assembly within three sitting days of its notification in the Gazette.3 Further, section 63(8) of the Act provides that if subordinate legislation is not tabled in accordance with section 63(1)(c) ‘it is of no effect’.4

1.4 The Committee obtains independent legal advice on whether an instrument raises any issues. It will then refer issues raised to the relevant Minister for response. If issues arise warranting the Assembly’s immediate attention, the Committee reports that subordinate legislation to the Assembly. It also provides periodic reports such as this to the Assembly of its correspondence with Ministers to account to the Assembly for the work it has done and place on the public record the issues noted and the explanations given.

1.5 In addition to its scrutiny of subordinate legislation, the Committee is responsible for monitoring compliance with the statutory reporting requirements of Government entities. For example, under section 28 of the Public Sector Employment and Management Act 1993 and section 12 of the Financial Management Act 1995, all Northern Territory government departments are required to present annual reports and audited financial statements to the appropriate Minister for tabling in the Assembly.

1.6 Independent Officers, such as the Auditor-General, Ombudsman and Independent Commissioner Against Corruption; statutory authorities; government owned

1 Interpretation Act 1978 (NT), ss 7 & 63

2 Interpretation Act 1978 (NT), s 63(1)

3 Interpretation Act 1978 (NT), ss 63(1)(c) & 63(3)(c)

4 Interpretation Act 1978 (NT), s 63(8)

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corporations; and a number of other regulatory bodies are also required to submit annual reports, audited financial statements, and inquiry reports to the Speaker or relevant Minister for tabling pursuant to their respective enabling legislation. It is pleasing to note that in the current reporting period all agencies, independent officer, statutory authorities, and government owned corporations met their relevant reporting requirements.

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Disallowance of Subordinate Legislation

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2 Disallowance of Subordinate Legislation

2.1 Pursuant to section 63(9) of the Interpretation Act, the Assembly may disallow subordinate legislation by motion; notice of which must be given within 12 sitting days of the tabling of the subordinate legislation. This disallowance power enables the Assembly to supervise how other bodies such as the Administrator uses the Assembly’s law-making power that has been delegated to them.

2.2 As indicated previously, if the Committee identifies issues of concern, it will first seek to resolve the matter with the responsible Minister. However, if the Committee cannot otherwise resolve the matter and is of the opinion that subordinate legislation, or a provision of subordinate legislation, ought to be disallowed, Standing Order 176(4) stipulates that the Committee:

(a) shall report that opinion and the grounds thereof to the Assembly before the end of the period during which any notice of the motion for disallowance of that instrument may be given to the Assembly; and

(b) if the Assembly is not sitting, may refer its opinion and the grounds thereof to the authority by which the instrument was made.

2.3 Following consideration of the Committee’s report, the Assembly may pass a resolution disallowing subordinate legislation which has the effect of repealing the legislation. In the case of subordinate legislation amending or repealing other legislation, the disallowance restores the other legislation from the date of the disallowance.

2.4 Where the Assembly passes a resolution of disallowance, section 64 of the Act places restrictions on the making of subordinate legislation that is the same in substance or has the same effect as the disallowed legislation within six months of the disallowance, unless the Assembly rescinds its resolution. Subordinate legislation made in contravention of this provision is of no effect.

Protective Disallowance Notices

2.5 Given the Committee’s role, it is vital that it concludes its consideration of an instrument before the end of the disallowance period to meet the requirements of the Committee’s terms of reference, and to enable the Assembly to give effect to any recommendations to disallow the instrument.

2.6 If it appears the 12 sitting day disallowance period for an instrument will expire before the Committee can resolve any concerns, it may ask the Chair to give the Assembly a notice of motion to disallow the regulation in order to extend the disallowance period. The effect of this is to extend the disallowance period until the notice of motion is finally dealt with.

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Tabling of Subordinate Legislation

2.7 As noted previously, pursuant to section 63 of the Interpretation Act, subordinate legislation must be tabled in the Assembly within three sitting days of its notification in the Gazette. Failure to do so renders the instrument invalid.5

2.8 During the reporting period, it came to the Committee’s attention that following gazettal neither the Liquor Amendment Regulations [No. 2 of 2021] nor the Building Amendment Regulations [No. 3 of 2021] were then tabled in the Assembly within the three sitting days. In the first instance, the Committee notified the Cabinet Office and was subsequently advised that the matter had been raised with the Chief Executive Officer for the Department of the Chief Minister and Cabinet and that the department was working with the Office of the Parliamentary Counsel to rectify the oversight.

Noting the importance of ensuring that subordinate legislation is made in accordance with the Interpretation Act, the Committee also sought advice from the responsible Ministers as to how the matter had been resolved. This correspondence is included in the following chapter.

5 Interpretation Act 1978, ss 63(1) & 63(8)

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Environment Protection Regulations No. 6 of 2020

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3 Ministerial Correspondence on Subordinate Legislation

Environment Protection Regulations No. 6 of 2020

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Plant Health Amendment Regulations No. 18 of 2020

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Plant Health Amendment Regulations No. 18 of 2020

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Batchelor Institute of Indigenous Tertiary Education (Gift Fund) By-Laws 2020

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Batchelor Institute of Indigenous Tertiary Education (Gift Fund)

By-Laws 2020

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Petroleum Regulations No. 31 of 2020

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Liquor Amendment Regulations No. 2 of 2021

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Liquor Amendment Regulations No. 2 of 2021

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Building Amendment Regulations No. 3 of 2021

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Building Amendment Regulations No. 3 of 2021

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Appendix A: List of Ministerial Correspondence on Subordinate Legislation

No. Title of Regulation/By-law Minister Letter to

Minister Minister’s Response 6 of 2020 Environment Protection Regulations Hon Eva Lawler 11/11/20 21/01/21 18 of 2020 Plant Health Amendment Regulations Hon Nicole Manison 17/02/21 15/03/21

N/A Batchelor Institute of Indigenous Tertiary Education (Gift Fund)

By-Laws 2020 Hon Lauren Moss 17/02/21

23/03/21 12/03/21 20/04/21 31 of 2020 Petroleum Regulations Hon Nicole Manison 23/03/21 16/04/21 2 of 2021 Liquor Amendment Regulations Hon Natasha Fyles 11/05/21 24/05/21 3 of 2021 Building Amendment Regulations Hon Eva Lawler 1105/21 21/05/21

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Appendix B: Subordinate Legislation commented on in 14th Assembly

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Appendix B: Subordinate Legislation commented on in 14

th

Assembly

Report No. Title of Regulation/By-Law Minister Date

Current

3 of 2021 Building Amendment Regulations Hon Eva Lawler 1105/21 2 of 2021 Liquor Amendment Regulations Hon Natasha Fyles 11/05/21 31 of 2020 Petroleum Regulations Hon Nicole Manison 23/03/21

N/A Batchelor Institute of Indigenous Tertiary Education (Gift Fund) By-

Laws 2020 Hon Lauren Moss 17/02/21

23/03/21 18 of 2020 Plant Health Amendment Regulations Hon Nicole Manison 17/02/21 6 of 2020 Environment Protection Regulations Hon Eva Lawler 11/11/20

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