Industrial Chemicals (Consequential Amendments and Transitional Provisions) Bill 2017 [2017] AUSStaCSBSD 171 (14 June 2017)

• Industrial Chemicals (Consequential Amendments and Transitional Provisions) Bill 2017

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Industrial Chemicals (Consequential Amendments and Transitional Provisions) Bill 2017

Purpose	This bill seeks to repeal the Industrial Chemicals (Notification and Assessment) Act 1989 together with three related Industrial Chemicals Charges Acts when new arrangements come into effect on 1 July 2018. The bill also seeks to make consequential amendments to a range of other Commonwealth legislation to reflect these changes
Portfolio	Health
Introduced	House of Representatives on 1 June 2017
Scrutiny principle	Standing Order 24(1)(a)(i)

Retrospective application ^[79]

1.107 Item 50 enables rules of a transitional nature to be made. Subitem 50(3) provides that rules made before 1 July 2020 may provide that 'this Act or any other Act or instrument' has effect with any modification prescribed by the rules.

1.108 A provision that enables delegated legislation to amend primary legislation is known as a Henry VIII clause. There are significant scrutiny concerns with enabling delegated legislation to override the operation of legislation which has been passed by Parliament as such clauses impact on the level of parliamentary scrutiny and may subvert the appropriate relationship between the Parliament and the Executive. As such, the committee expects a sound justification for the use of a Henry VIII clause to be provided in the explanatory memorandum.

1.109 In this instance, the explanatory memorandum provides a detailed justification as to the need for this power, particularly in light of the complexity of transitioning from the old to the new law (with over 45,000 industrial chemicals authorised for introduction) and the significant consequences for not having the right transitional arrangements in place.^[80] The committee accepts that it may be appropriate for the limited use of a Henry VIII clause in such circumstances.

1.110 However, in addition, subitem 50(4) provides that subsection 12(2) of the Legislation Act 2003 does not apply to rules made before 1 July 2020. Subsection 12(2) of the Legislation Act 2003 provides that a provision of a legislative instrument does not apply in relation to a person if the provision applies retrospectively and, as a result, the person's rights would be disadvantageously affected or liabilities would be retrospectively imposed on a person. The committee has a long-standing scrutiny concern about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals. The committee therefore expects any disapplication of section 12(2) of the Legislation Act 2003 to be fully justified. However, the explanatory memorandum does not address this issue.

1.111 The committee requests the Minister's advice as to why it is necessary, in relation to the making of transitional rules, to disapply the application of section 12(2) of the Legislation Act 2003 (which prohibits the retrospective application of legislative instruments which have a detrimental effect on a person or impose retrospective liability on a person).

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[79] Subitems 50(3) and (4). The committee draws Senators’ attention to this provision pursuant to principle 1(a)(i) of the committee’s terms of reference.

[80] Explanatory memorandum, p. 23.