Legislation (Fees) Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (12:26): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, the Bill I introduce today is the Legislation (Fees) Bill 2019.

The Bill repeals and replaces the Fees Regulation Act 1927, which provides the authority for regulations to be made for the prescription and variation of fees for the purposes of various Acts. In particular, the Bill converts the existing statutory power to set fees by regulation into a power to set fees by Ministerial notice or by regulation.

Rather than amend the existing Act, the Bill repeals and replaces that Act, which had not been amended since it came into operation in 1927. The Bill is simpler and reflects modern drafting styles.

At present, each year schedules of increases to annual fees and charges are prepared by Departments and provided to the Office of Parliamentary Counsel for the preparation of amendments to the relevant regulations..

The only reason that the Office of Parliamentary Counsel is involved is that currently the only process to set fees is by the regulation-making powers contained in the principal Acts under which the fees are imposed.

Nearly half of all of the Office of Parliamentary Counsel's publishing for the year occurs on the single date of 1 July as a result of the annual fee increases which are coordinated by the Department of Treasury and Finance..

The removal of Parliamentary Counsel from this process would allow them to provide a better service in getting legislation published promptly. It would also mean that Departments will be responsible for ensuring the fees increase notices are prepared and published in the Government Gazette in a timely manner. This will remove the need for back-and-forth versions of the regulation shells between the Departments and the Office of Parliamentary Counsel.

Clauses 4 and 5 of the Bill creates these efficiencies by enabling Departments to prescribe their fees by fee notices. The relevant Minister or Department that administers an Act under which a fee arises will take responsibility for preparing fee notices and arranging for their publication in the Government Gazette.

The Bill recognises, however, that in some instances it will be preferable for some fees to continue to be prescribed by regulation. This is permitted by clauses 4 and 6 of the Bill, which provide that prescribing fees by a notice is discretionary, and that regulations may still be made or varied under any other relevant legislation. One instance in which this might be used is for fees which are currently set pursuant to a national scheme, such as the Motor Vehicles (National Heavy Vehicles Registration Fees) Regulations 2008. In those circumstances, users of those schemes will benefit from the uniformity of the way in which the fees are set out in different jurisdictions.

Clause 4(3) enables an authority to vary a fee prescribed by a fee notice. This can be done by the authority publishing a new fee notice in substitution of the current fee notice. This will have the effect of revoking and replacing the earlier fee notice, so that there is one complete fee notice in operation at any given time. Similarly, clause 4(4) of the Bill entitles an authority to revoke a fee notice outright.

Clauses 4 and 5 will also be used when agencies need to apply fee increases outside of the annual process, or when new fees need to be imposed outside of the usual 1 July timeframe.

Clause 5(3) of the Bill removes the current irregular commencement provisions (which provides for commencement within 14 sitting days after the regulation was laid before Parliament) in favour of the more usual commencement arrangements (a day specified in the notice; where the relevant Act authorises, a day before the notice is published; or the day on which it is published in the Gazette). There are no negative consequences but a number of technical advantages to this change, including:

making it easier to identify when regulation variations commence as there will be no need to refer to and review Parliamentary notice papers;

making it easier to populate the legislative history of regulations as there will be a fixed point to anchor to the changes; and

reducing the risk of future error by Departments which will assume responsibility of the process, by establishing one process.

The Bill retains Parliament's scrutiny over the notices. Clause 5(4) of the Bill provides that sections 10 (other than subsection(1)) and 10A of the Subordinate Legislation Act 1978 apply in relation to a fee notice. This means that a fee notice must be laid before each House of Parliament within six sitting days after it has been published in the Government Gazette and that a copy of the fee notice must be provided to the Legislative Review Committee along with an accompanying report. The fee notices will be disallowable (in the same way that regulations are). They will also have the same evidentiary value as fees published by regulations, because courts are required to take judicial notice of publications in the Government Gazette.

This proposal arises from a request by the Office of Parliamentary Counsel to implement measures to cease publication of annual fees and charges regulations by its office. The beneficial effect of the Bill is wider, however. It brings efficiencies to all of the other agencies and entities which are currently involved in prescribing fees by making regulations, including the Departments themselves, Cabinet, the Governor in Executive Council (whose approval is required make the regulations under the existing Act) and the Government Printer.

I commend the Bill to Members and I seek leave to insert the Explanation of Clauses in Hansard without my reading it.

Explanation of Clauses

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause defines key terms and phrases used in the measure.

4—Relevant authority may prescribe fees by fee notice

This clause provides that, where an Act allows for fees to be prescribed, or makes no provision in respect of charging fees for services provided by the Crown etc, then the relevant authority under that Act may prescribe fees by fee notice.

5—Fee notices

This clause sets out requirements and procedural provisions in respect of fee notices.

6—Saving provisions

This clause clarifies that fees may, where appropriate, continue to be prescribed by regulation. The clause also provides that, where a particular fee is prescribed both by regulation and fee notice, the fee is to be determined by reference to the most recent instrument.

7—Regulations

This clause confers regulation making powers in respect of the measure.

Schedule 1—Repeal of Fees Regulation Act 1927

This Schedule repeals the Fees Regulation Act 1927.

The Hon. K.J. MAHER (Leader of the Opposition) (12:27): I am the lead speaker on this bill for the Labor Party, and indicate that the Labor Party will support the speedy progress of this bill through the second reading and committee stage. We think this bill is a sensible bill. It means that, in effect, the process of drawing up increasing fees and charges will not be something that needs to be done by parliamentary counsel as regulations and then go through all the associated processes; it will be something that can be done departmentally and will free up the parliament's and the executive's time, but importantly (and the reason we are supporting it) is because it is still a disallowable instrument, so either chamber of parliament can disallow it if it so chooses. On the basis that it remains a disallowable instrument, the Labor opposition will support the bill.

The Hon. M.C. PARNELL (12:28): The Greens support the second reading of this bill, which provides for a more efficient way to set fees and charges under various acts. Rather than having to go through parliamentary counsel, the relevant documents can be prepared by appropriate departments and a fee notice put in the Government Gazette under the minister's name or even under the department's name (presumably the CEO or another nominated official).

The Greens support increased efficiency in public administration, provided it does not decrease services, reduce accountability or add uncertainty in interpretation. On my reading of this bill, it passes all those three tests. In relation to accountability, the bill provides that fee proclamations under this new regime will be disallowable instruments, that is, disallowable by either house of parliament, as is the case with existing regulations.

Fee notices will also need to be referred to the Legislative Review Committee in the same way that regulations are referred, and that is the effect of clause 5 of this bill, which invokes section 10A of the Subordinate Legislation Act. In terms of ensuring certainty in interpretation, I think that this is covered by the express references in the bill to the Acts Interpretation Act. Some of the new fee notices under the bill would have already fallen within the definition of 'statutory instruments' under the Acts Interpretation Act, particularly those fee notices that are made by ministers, but the grey area was probably fee notices made by agencies other than ministers, so that is now made explicit in the bill.

This means that the rules of statutory interpretation, including all the definitions in the Acts Interpretation Act, will apply to fee notices in the same way that they apply to acts and regulations. Unless something new emerges in committee or from constituents that we have not considered yet, I expect the Greens will support the third reading of the bill, but for now we are happy to support the second reading and we look forward to further debate.

The Hon. R.I. LUCAS (Treasurer) (12:30): I have canvassed other members, who have indicated that they do not intend to speak and they are prepared to support the bill, so I thank the two members who have spoken and indicated their support for the bill and support for its passage through the committee stage today.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (12:32): I move:

That this bill be now read a third time.

Bill read a third time and passed.