Jervis Bay Territory Rural Fires Ordinance 2014 [F2014L00443]-Continuing matters [2014] AUSStaCSDLM 143 (16 July 2014)

• Jervis Bay Territory Rural Fires Ordinance 2014 [F2014L00443]

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Jervis Bay Territory Rural Fires Ordinance 2014 [F2014L00443]

Purpose	Updates the legislative framework for providing effective and efficient rural fire services in the Jervis Bay Territory
Last day to disallow	15 July 2014
Authorising legislation	Jervis Bay Territory Acceptance Act 1915
Department	Infrastructure and Regional Development

[The committee first reported on this instrument in Monitor No. 6 of 2014. The committee raised concerns and sought further information in relation to the prescribing of matters by legislative rules].

Issue:

Prescribing of offences by rules

The ordinance repeals and replaces the Rural Fires Ordinance 2001. The Jervis Bay Territory Acceptance Act 1915 (the authorising legislation) provides for the making of ordinances (section 4F), and regulations, rules and by-laws (section 4L). This instrument is based on the NSW Rural Fires Act 1997 and Rural Fires Regulations 2008 with modifications to reflect the Jervis Bay Territory's jurisdictional and administrative circumstances.

In Delegated Legislation Monitor (Monitor) Nos 2 and 5 of 2014, the committee noted a novel approach (since 2013) in the drafting of Acts to provide for a broadly-expressed power to make legislative rules, and raised a number of significant concerns going to the implementation and implications of the displacing of the regulation-making power by such rules (see comments on Australian Jobs (Australian Industry Participation) Rule 2014 [F2014L00125]). One of the issues currently under consideration in relation to this matter relates to the advice of FPC that 'some types of provisions should be included in regulations and be drafted by OPC [without] strong justification for prescribing those provisions in another type of legislative instrument'.

In response to the committee's inquiry as to how such matters would be provided for in the absence of a regulation-making power, FPC advised:

If such provisions are required for an Act that includes only a general rule-making power, it would be necessary to amend the Act to include a regulation-making power that expressly authorises the provisions.

In relation to this issue, the committee notes that section 98 of the ordinance creates a broadly-construed rule-making power:

The Minister may, by legislative instrument, make rules prescribing matters:
(a) required or permitted by this Ordinance to be prescribed by the rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Ordinance.

Subsection 98(3) provides:

The rules may create offences punishable by a penalty not exceeding 50 penalty units.

The ES for the ordinance states that section 98:

...prescribes the matters to which the Minister may make rules. This section limits the penalty for offences created under the rules to a maximum of 50 penalty units.

In light of FPC's view that certain types of provisions (including offence provisions) require an express regulation-making power in the authorising Act and should be drafted by OPC, the committee notes that the accompanying ES contains no justification for the authorising of offence provisions via rules rather than via regulation [the committee requested further information from the minister].

ASSISTANT MINISTER'S RESPONSE:

The Assistant Minister for Infrastructure and Regional Development advised that the drafting of the Ordinance:

...ran in parallel to the Office of Parliamentary Counsel's development of its formal policy on the preparation of subordinate legislative instruments, including in relation to regulation-making powers and the appropriateness of offence provisions to be included under a rule-making power.
The Department of Infrastructure and Regional Development will work with the Office of Parliamentary Counsel to address the comments made by the Committee, including amending the Ordinance to expressly create a regulation-making power, amending the Rule to remove all offence provisions and drafting Regulations with the offence provisions.

COMMITTEE RESPONSE:

The committee thanks the assistant minister for his response and undertaking to amend the Ordinance.

The committee monitors the progress of undertakings, and would be grateful for the assistant minister's advice once the amendments are made.

However, the committee notes that the assistant minister's advice raises a number of questions regarding the committee's inquiries in relation to the Australian Jobs (Australian Industry Participation) Rule 2014 [F2014L00125].

In particular, the committee notes the assistant minister's advice that the drafting of the Ordinance, and the inclusion of offences in the rules (authorised by express provision), ran 'in parallel' to OPC's development of its formal policy on the appropriateness of offence provisions to be included under a rule-making power.

As the committee has previously noted, on 6 March 2014 (subsequent to the committee's initial comments on the matter), OPC circulated revised Drafting Direction No. 3.8, which included the addition of extensive instruction on the use of 'general instrument-making powers' of this kind. The direction included the guidance that 'some types of provisions should be included in regulations and be drafted by OPC [without] strong justification for prescribing those provisions in another type of legislative instrument'. The committee understood this to be a settled statement of the policy on the use of the general rule-making power.

With reference to these points, the committee notes that the assistant minister's undertaking appears to suggest that, while the inclusion of offence provisions in the rules satisfied legal criteria for validity, there was not a sufficiently 'strong justification' for making provision for the prescribing of offences by rules in this case. This is of particular interest to the committee because, as noted above, the committee's inquiries to date have shed little light on what would constitute a 'strong justification' for the inclusion of such matters in rules or, indeed, who will be responsible for the making of such judgements.

The assistant minister's advice also gives rise to questions regarding the policy development process in relation to the general-rule making power, and whether the implementation of the power has been done on the basis of a sufficiently well developed and articulated policy on its use.

These matters relate directly to the committee's inquiries in relation the Australian Jobs (Australian Industry Participation) Rule 2014 [F2014L00125]. The committee will have the opportunity to discuss these matters in its upcoming meeting with FPC and, in addition, seeks the written response of FPC to the matters outlined above.