[Peetwo]

DLM 4 & IPA - Regulatory Dark Matter?? 

Via the SSCDL webpages:

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Link: https://www.aph.gov.au/-/media/Committee...902D823E7B

Page 26:

Part 138 (Aerial Work Operations) Manual of Standards 2020 [F2020L01402]

Principle (e) drafting

Seeking advice from the minister.

Notice of motion to disallow placed on 15/02/2021.

Note: To move 15 sitting days after 15/2/21 that the instrument be disallowed.

Next referring to the 'Additional Docs' page for the ongoing 'EXEMPTION OF DELEGATED LEGISLATION FROM PARLIAMENTARY OVERSIGHT' inquiry; I noted the following IPA paper: 

5  Institute of Public Affairs - 'Regulatory dark matter: How unaccountable regulators subvert democracy by imposing red tape without transparency,' Kurt Wallace (received 11 September 2020)

Hmm...some extracts that highlight parallels to our very own 'Law Unto Themselves' big R-regulator CASA...

Ref Exec Summary - pg 3:

..For the first time in Australia this report analyses and develops a methodology for
measuring a category of red tape that to date has been ignored. This category of
red tape is described as ‘regulatory dark matter’ which refers to publications by
government agencies that seek to influence the behaviour of regulated actors (such
as businesses) but lack adequate democratic oversight. These publications are not
necessarily bound by law, but nonetheless have a regulatory effect which results in a
greater red tape burden faced by individuals and businesses...

‘Regulatory dark matter’ is defined as “regulatory actions taken by departments and
agencies that are subject to little scrutiny or democratic accountability.” This broad
definition includes two commonly used categories in the Australian context: legislative
instruments and quasi-regulation. Regulatory dark matter, particularly quasi-regulation,
is also often referred to as “soft law” in the Australian context...

...For every page of enabling legislation passed by Parliament, there are another eight
pages of regulation imposed on the Australian economy by the regulatory state. This
8-to-1 ratio of “dark” to “light” regulation is a concerning aspect of the red tape
burden. While regulation passed by Parliament is subject to a transparent democratic
process, regulatory dark matter is being imposed by the regulatory state with little
democratic oversight...

..From these five agencies there are 75,976 pages of regulatory dark matter currently in place, including 19,011 pages of legislative instruments, while quasi-regulation (such as guidance material) added 56,965 pages. For purposes of comparison, regulatory dark matter is more than 52 times greater than Tolstoy’s famous War and Peace and eight times larger than the original enabling legislation for these agencies passed by Parliament...

Ref page 14:

..Although the Senate has a process by which they can disallow legislative instruments, 
in practice the scrutiny is highly delegated and does not adequately evaluate the 
economic impact of regulation. Quasi-regulation is further removed from the democratic
 process of accountability. Agencies are able to use various publications for regulatory
 purposes without going through the processes and checks involved in passing 
legislation or regulation.

When rules can be made and implemented by unelected bureaucrats there are
perverse incentives for regulatory expansion. The institutional structure allows
bureaucrats to expand the power and influence of their agency without direct
democratic accountability...

MTF...P2