Ministerial Correspondence on Subordinate Legislation

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LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

Public Accounts Committee

Report of

Ministerial Correspondence on Subordinate Legislation

July 2018 - May 2019

May 2019

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Contents

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Committee Members

Ms Sandra Nelson MLA: Member for Katherine

Party: Territory Labor

Committee Membership

Chair Public Accounts Committee

Social Policy Scrutiny Committee House Committee

Mr Terry Mills MLA: Member for Blain

Party: Independent

Deputy Chair Public Accounts Committee

Mrs Kate Worden MLA: Member for Sanderson

Public Accounts Committee

Economic Policy Scrutiny Committee

Mr Gary Higgins MLA: Member for Daly

Party: Country Liberals

Public Accounts Committee Standing Orders Committee House Committee

Mr Tony Sievers MLA: Member for Brennan

Chair Economic Policy Scrutiny Committee House Committee

Public Accounts Committee

Mr Gerry Wood MLA: Member for Nelson

Party: Independent

Privileges Committee Public Accounts Committee

On 1 February 2019, Member for Port Darwin, the Hon Paul Kirby MLA was discharged from the Committee and replaced by Member for Katherine, Ms Sandra Nelson MLA. On 12 February 2019, Member for Sanderson, Mrs Kate Worden MLA stood down as Chair of the Committee. The Member for Katherine, Ms Sandra Nelson MLA was elected Chair of the Committee. On 22 March 2019, Member for Spillett, Mrs Lia Finocchiaro MLA was discharged from the Committee and replaced by Member for Daly, Mr Gary Higgins MLA.

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Committee Secretariat

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Committee Secretariat

First Clerk Assistant: Mr Russell Keith Senior Research Officer: Ms Elise Dyer Administration Officer: Ms 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

Sessional Order 13

Public Accounts Committee

(1) Standing Order 177 is suspended and the Public Accounts Committee appointed under that Standing Order shall continue with following terms of reference.

(2) The Public Accounts Committee has the following duties:

(a) to examine the accounts of the receipts and expenditure of the Northern Territory and each statement and report tabled in the Legislative Assembly, pursuant to the Financial Management Act and the Audit Act

(b) to report to the Legislative Assembly with such comments as it thinks fit, any items or matters in or arising in connection with those accounts, statements or reports, or in connection with the receipt or disbursement of the moneys to which they relate, to which the committee is of the opinion that the attention of Parliament should be drawn

(c) to report to the Legislative Assembly any alteration which the committee thinks desirable in the form of the public accounts or in the method of keeping them or in the method of receipt, control, issue or payment of public moneys

(d) to inquire into and report to the Legislative Assembly on any question in connection with the public accounts of the Northern territory

(i) which is referred to it by a resolution of the Assembly or (ii) which is referred to it by the Administrator or a Minister

(e) to inquire into and report to the Legislative Assembly on any matters within the executive authority of Ministers of the Territory to which the committee is of the opinion that the attention of the Assembly should be drawn

(f) the reports by statutory bodies tabled in the Assembly, including the recommendations of the Electoral Commissioner tabled under section 313 of the Electoral Act

(g) in relation to any instruments of a legislative or administrative character which the Assembly may disallow or disapprove:

(i) whether that instrument has sufficient regard to the rights and liberties of individuals, including whether the instrument:

(A) makes rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review; and

(B) is consistent with principles of natural justice; and

(C) allows the delegation of administrative power only in appropriate cases and to appropriate persons; and

(D) does not reverse the onus of proof in criminal proceedings without adequate justification; and

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Terms of Reference

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(E) confers powers to enter premises, and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer; and

(F) provides appropriate protection against self-incrimination; and (G) does not adversely affect rights and liberties, or impose obligations,

retrospectively; and

(H) does not confer immunity from proceeding or prosecution without adequate justification; and

(I) provides for the compulsory acquisition of property only with fair compensation; and

(J) has sufficient regard to Aboriginal tradition; and

(K) is unambiguous and drafted in a sufficiently clear and precise way.

(ii) whether that instrument has sufficient regard to the institution of Parliament, including whether an instrument:

(A) is within the authorising law which allows the instrument to be made:

and

(B) is consistent with the policy objectives of the authorising law; and (C) contains only matter appropriate to subordinate legislation; and (D) amends statutory instruments only; and

(E) allows the subdelegation of a power delegated by an Act only in appropriate cases and to appropriate persons and if authorised by an Act.

(3) The Committee will consist of six Members.

(4) The Committee will elect a Government Member as Chair.

(5) The Committee will provide an annual report of its activities to the Assembly.

(6) This resolution does not change the Chair, membership or existing inquiries of the Committee.

(7) Standing Order 176 is suspended and the Subordinate Legislation and Publications Committee is dissolved.

(8) The Public Accounts Committee will have access to the records of the former Subordinate Legislation and Publications Committee and may continue the consideration of any matter commenced by that Committee.

Adopted 24 August 2017

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1 Introduction

Committee’s Duties Regarding Subordinate Legislation

1.1 Under Sessional Order 14, the Public Accounts Committee has taken on the duties of the former 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 to 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 is common in Westminster style Parliaments. This scrutiny is to assist the Parliament ensure other bodies use its delegated power to make laws according to certain principles. Those principles are detailed in Sessional Order 14(2)(g).

1.3 Under section 63 of the Interpretation Act 1978, 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. The Committee’s role is to bring to the Assembly’s attention any issues arising under Sessional Order 14(2)(g) to inform it on whether the power to disallow should be exercised.

1.4 The Committee obtains independent legal advice on whether an instrument raises any issues. It will then refer issues raised to the 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.

Significant issues arising with regulations

1.5 In most instances the Committee was satisfied with the explanations Ministers gave and any related undertakings given. There were, however, two instances which raised concerns for the Committee, although the Committee did not consider that they warranted a separate report.

Pastoral Land Amendment Regulations

1.6 As set out in the letters in Chapter 2, Regulation 32 of the Pastoral Land Regulations was in response to the Assembly enacting section 68(5)(c) of the Pastoral Land Act 1992 subsequent to what the Minister described as an administrative error. This was after significant amendments were made to the Pastoral Land Legislation Amendment Bill 2017 due to a decision to defer some of the proposals made in the original Bill. The Minister explained that the purpose of Regulation 32 was “to suspend the application of Section 68(5)(c) of the Act until appropriate sub leasing provisions are made”.

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Introduction

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1.7 The purpose of the regulation-making power is to give effect to an Act, not to suspend a provision of an Act when it is inconsistent with Government policy. To do this is prima facie not to have due regard to the institution of Parliament as the supreme law-making body. Further, the Committee’s independent legal advice took the view that such a regulation was beyond the regulation-making power under the Act.

1.8 The Minister also advised that the regulation would soon be replaced with the planned legislative amendments.

1.9 Given these circumstances, where the Regulations appeared convenient for the administration of pastoral lands, did not appear to adversely affect any person, and were to be replaced in the coming months, the Committee did not consider a standalone report to the Assembly was required.

Petroleum (Environment) Amendment Regulations No 27 of 2018 & Petroleum (Environment) Further Amendment Regulations 28 of 2018

1.10 As detailed in the letters below, questions were raised regarding whether regulations relating to hydraulic fracturing in the Petroleum (Environment) Regulations were outside the regulation-making power under the Petroleum Act 1984.

1.11 The definition of ‘petroleum’ under the Act states that it “does not include a substance which, in its naturally occurring state, is not recoverable from a well by conventional means”. On its face, this appeared to exclude hydraulic fracturing from the ambit of the Act.

1.12 Although this definition is to be amended on the commencement of the Petroleum Legislation Amendment Act 2019, it was the definition at the time the regulations were made.

1.13 The Minister provided his firm advice “that Petroleum obtained by hydraulic fracturing has always been within the ambit of the definition”, although he did not provide the reasoning behind that advice, or what then was the meaning of the exclusion within the definition.

1.14 The Committee accepted the Minister’s advice, although it notes that it is better able to discharge its duties if Ministers provide the reasons for their views, and that in some circumstances it may decide that a notice of motion to disallow a regulation is required to extend the period for disallowance if adequate reasoning is not provided in a timely manner.

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2 Ministerial Correspondence on Subordinate Legislation

Termination of Pregnancy Law Reform Regulations No. 20 of 2017

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Public and Environmental Health Amendment Regulations No. 12 of 2018

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Public and Environmental Health Amendment Regulations No. 12

of 2018

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Termination of Pregnancy Law Reform Amendment Regulations No. 17 of 2018

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Termination of Pregnancy Law Reform Amendment Regulations

No. 17 of 2018

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Education and Care Services National Amendment Regulations No. 246 of 2018

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Education and Care Services National Amendment Regulations

No. 246 of 2018

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Education and Care Services National Amendment Regulations No. 246 of 2018

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Fisheries Amendment (Priority Species and Swim Bladder)

Regulations No. 18 of 2018

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Fisheries Amendment (Priority Species and Swim Bladder) Regulations No. 18 of 2018

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Gaming Machine Amendment Regulations No. 15 of 2018

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Gaming Machine Amendment Regulations No. 15 of 2018

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Gaming Machine Amendment Regulations No. 15 of 2018

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Pastoral Land Amendment Regulations No. 24 of 2018

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Pastoral Land Amendment Regulations No. 24 of 2018

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Pastoral Land Amendment Regulations No. 24 of 2018

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Petroleum (Environment) Amendment Regulations No. 27 of 2018

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Petroleum (Environment) Amendment Regulations No. 27 of 2018

Petroleum (Environment) Further Amendment Regulations No. 28

of 2018

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Petroleum (Environment) Further Amendment Regulations No. 28 of 2018

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Plant Health (Fees) Amendment Regulations No. 29 of 2018

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Plant Health (Fees) Amendment Regulations No. 29 of 2018

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Education (Infringement Notice) Regulations No. 2 of 2019

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Education (Infringement Notice) Regulations No. 2 of 2019

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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 20 of 2017 Termination of Pregnancy Law Reform

Regulations Hon. Natasha Fyles 01/11/17 N/A

12 of 2018 Public and Environmental Health

Amendment Regulations 2018 Hon. Natasha Fyles 14/08/18 28/08/18 17 of 2018 Termination of Pregnancy Law Reform

Amendment Regulations 2018 Hon. Natasha Fyles 31/10/18 29/11/18 246 of 2018 Education and Care Services National

Amendment Regulations 2018 Hon. Selena Uibo 31/10/18 12/11/18 18 of 2018 Fisheries Amendment (Priority Species

and Swim Bladder) Regulations 2018 Hon. Ken Vowles 31/10/18 20/11/18 15 of 2018 Gaming Machine Amendment

Regulations 2018 Hon. Natasha Fyles 31/10/18 15/11/18

24 of 2018 Pastoral Land Amendment Regulations

2018 Hon. Eva Lawler 19/03/19 16/04/19

24 of 2018 Pastoral Land Amendment Regulations

2018 Hon. Eva Lawler 02/05/19 07/05/19

27 of 2018 Petroleum (Environment) Amendment

Regulations 2018 Hon. Paul Kirby 19/03/19 18/04/19

27 of 2018 Petroleum (Environment) Amendment

28 of 2018 Petroleum (Environment) Further

Amendment Regulations 2018 Hon. Paul Kirby 19/03/19 18/04/19 28 of 2018 Petroleum (Environment) Further

Amendment Regulations 2018 Hon. Paul Kirby 02/05/19 10/5/2019 29 of 2018 Plant Health (Fees) Amendment

2 of 2019 Education (Infringement Notice)

Regulations 2018 Hon. Selena Uibo 09/04/19 03/05/19

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Appendix B: Subordinate Legislation commented on in 13

^th

Assembly

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

July 2018 – May 2019

2 of 2019 Education (Infringement Notice)

Regulations 2019 Hon. Selena Uibo 09/04/19

29 of 2018 Plant Health (Fees) Amendment

Regulations 2018 Hon. Paul Kirby 20/03/19

28 of 2018 Petroleum (Environment) Further

Amendment Regulations 2018 Hon. Paul Kirby 19/03/19 27 of 2018 Petroleum (Environment) Amendment

Regulations 2018 Hon. Paul Kirby 19/03/19

24 of 2018 Pastoral Land Amendment

Regulations 2018 Hon. Eva Lawler 19/03/19

15 of 2018 Gaming Machine Amendment

Regulations 2018 Hon. Natasha Fyles 31/10/18

18 of 2018 Fisheries Amendment (Priority Species

and Swim Bladder) Regulations 2018 Hon. Ken Vowles 31/10/18 246 of 2018 Education and Care Services National

Amendment Regulations 2018 Hon. Selena Uibo 31/10/18 17 of 2018 Termination of Pregnancy Law Reform

Amendment Regulations 2018 Hon. Natasha Fyles 31/10/18 12 of 2018 Public and Environmental Health

Amendment Regulations 2018 Hon. Natasha Fyles 14/08/18 20 of 2017 Termination of Pregnancy Law Reform

Regulations Hon. Natasha Fyles 01/11/17

June 2017 – July 2018

36 of 2017 Racing and Betting Amendment

Regulations 2017 Hon. Natasha Fyles 13/03/18

20 of 2017 Termination of Pregnancy Law Reform

Regulations Hon. Natasha Fyles 11/10/17

12 of 2017 Litchfield Council (Dog Management)

By-Laws Hon. Gerry McCarthy 11/10/17

11 of 2017 Bushfires Management (General)

Regulations Hon. Lauren Moss 17/08/17

3 of 2017 Barramundi Fishery Management Plan

Amendment 2017 Hon. Ken Vowles 17/08/17

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2016 – May 2017

36 of 2016 Guardianship of Adults Regulations Hon. Natasha Fyles 23/11/16 32 of 2016 Petroleum (Environment) Regulations Hon. Ken Vowles 23/11/16 21 of 2016 Local Court (General) Rules Hon. Natasha Fyles 27/10/16 12 of 2016 Medical Services (Royal Darwin

Hospital Parking) Regulations Hon. Natasha Fyles 27/10/16 11 of 2016 NT Civil and Administrative Tribunal

Rules Hon. Natasha Fyles 27/10/16

N/A NT Public Sector Employment and

Management By-Laws 2016 Hon. Gerry McCarthy 27/10/16