#SBG 16/2/20: Prima facie; primarily facile, or Piss take?

Ref: Strict liability, strictly enforced. & http://auntypru.com/a-cabaret-in-the-temple-of-doom/

Prima facie; primarily facile, or Piss take? AP Forum version

“Accepted as correct until proved otherwise”. A perfect, nutshell description of the regulatory process. We, in Australia have paid for and sat (miserably) through many ‘Senate Inquiries’ into the antics of the ‘regulator’ – CASA, despairing of the questions asked. I’d even bet we hold a world record for the sheer volume of questions asked and answers given; (word count beyond human understanding) – non of which have made the slightest bit of difference as the wider aviation businesses, medium to light weight operations devolve into isolated cottage industries. Well all except for the huge, profitable ‘sausage factories’ that is; churning out ‘qualified’ clones of some scripted qualification regime which ensures all the boxes are ticked – nice and legal like. Which is fine until the airline HR model is hired and the cost of ‘training’ a clone to ‘do the job’ is passed on through exorbitant regional airfares. Why is this so? A question any reasonable man )yes, yes or woman( – Uhmm-  (human being) may ask. Phew.

Many believe it has to do with ‘the regulatory burden’. To a point, there is a case to answer on that score. The three decade endless ‘change’ has not, not by any measure, fiscal or operationally been a stellar success. Why is this so?

Well, we dragged P2 out of the deep basement shredder bins, brushed him off and retrieved his find; slightly mangled but nonetheless readable for all that. He toddles off to share his Choc Frog with his best mate (a rabbit he rescued – long story don’t ask) leaving us with the gubbins. 

“Senate standing order 23(4) also requires the committee to scrutinise each instrument to determine whether the attention of the Senate should be drawn to the instrument on the ground that it raises significant issues, or otherwise gives rise to issues that are likely to be of interest to the Senate”.

Agency engagement. 4.2 The committee is engaging with the relevant agencies via its secretariat to seek further information about potential scrutiny concerns raised by the instruments listed below.

> Terms of reference

> The committee’s scrutiny principles are set out in Senate standing order 23(3) which requires the committee to scrutinise each instrument as to whether:

> (a) it is in accordance with its enabling Act and otherwise complies with all legislative requirements;

> (b) it appears to be supported by a constitutional head of legislative power and is otherwise constitutionally valid;

> © it makes rights, liberties, obligations or interests unduly dependent on insufficiently defined administrative powers;

> (d) those likely to be affected by the instrument were adequately consulted in relation to it;

> (e) its drafting is defective or unclear;

> (f) it, and any document it incorporates, may be freely accessed and used;

> (g) the accompanying explanatory material provides sufficient information to gain a clear understanding of the instrument;

> (h ) it trespasses unduly on personal rights and liberties;

> (i) it unduly excludes, limits or fails to provide for independent review of decisions affecting rights, liberties, obligations or interests;

> (j) it contains matters more appropriate for parliamentary enactment; and

> (k) it complies with any other ground relating to the technical scrutiny of delegated legislation that the committee considers appropriate.

Blind Freddy (G’day mate) can see the potential here for serious questions to be asked by  ‘the committee secretariat’. But it all turns to worms when :-“Seeking advice from the agency” is the response of choice. Then, it all gets to be a little ‘circular’. For example:-

Aviation Transport Security Amendment (Security Controlled Airports) Regulations 2019 [F2019L01656]

Principle (g) adequacy of explanatory materials
Principle (h) privacy
Principle (k) parliamentary oversight
Seeking advice from the agency.

Or:-

>Civil Aviation Legislation Amendment (Parts 103, 105 and 131) Regulations 2019 [F2019L01621]
Principle (i) availability of independent review
Principle (h) reversal of evidential burden of proof
Principle (h) privacy
Seeking advice from the agency.

Principle (h) – reversal of evidential burden of proof. Consider the ridiculous proposition posed. In all ‘criminal’ cases (real ones) as defined, the burden of proof falls where? Mens Rea and all that – denied, without a whimper from the protectors of democracy? WTD. Then, they refer it back to the agency ‘for advice’. Gods spare me…

Principals’ (i) through (h) as they relate to CASA enforcement demand immediate attention and close scrutiny – followed by immediate bipartinsane repeal. Unconstitutional? – Just a bit. Should the Senate ever want to resolve and save the time and money an Inquiry costs – perhaps they could just consider the outrage they’d feel at being guilty – without hope of defence for a misdemeanour? Even a clerical error or anything else CASA choose to whip up into a case against; – presented in the AAT – without the rules of evidence the police must rely on to prosecute? Not bloody funny. And yet here we are again – “seeking advice from the agency”. “Did you rob the bank?” – “Oh no M’lud was two other fellah’s”.  “Fair enough – off you go then”.

Question without notice Madam Chair – What exactly do you expect in response to your question – “to the Agency”. I suggest you refer to the 9,000 odd answers provided by ‘the agency’ for a quick answer. It’s like watching a duckling Ping-Pong match. The committee Pings it to the agency – they Pong it back. No one even considering the travesty inflicted on the ‘rule of law’ – which by the way – Parliament enshrined in our democracy. Want to know why the aviation industry is hacked off and scared to speak out? See the explanation – above.

Chair – So Doctor Aleck, do you think it is reasonable to give Bloggs a criminal record, which will affect his future career for making an arithmetical error on the technical log?

Lost Marbles – “Oh yes Madam chair” – “Safety is our prime concern”.  “He may pay the fine and forget the matter entirely; but we will keep the offence on record and will use it as ‘background’ to prove him not able to be rehabilitated and to pad our ‘catch rate’ of these offenders, committing heinous crimes against my tricky one way rules.”

Aye, just when you thought here was a beacon of hope, you discover the Senate oversight of our civil liberties, under homemade law rely on the ‘advice’ of those who penned the law; now under Senate ‘scrutiny’. Brilliant; stellar, world class – how ducking spectacular.

No matter. The grandfather clock saga (serious stuff now). We have a cutting list (finally). These billets must be hand cut, according to my letter. I measured up with a 1900 vintage cabinet makers wooden ruler. Just for fun, TOM used the latest ‘laser’ measuring gizmo to compare. Beers were bet; I have half a fridge full now. 98% accuracy (half a thou) on 87% of measurements; no discernible difference in the remaining 13%. Not too shabby I’d say. Grandpapa’s ruler had the right of it – carpenters are sundials – cabinet makers are Rolex.

But, do enjoy the workings of the Senate and your tax dollar while I slip through the orchard into a cool evening; no option, the dogs only wake up once the temperature drops “Out! – take me out” they bark. So I oblige ‘em – pretending it’s a lot of bother and trouble; but they know who woke ‘em from slumber. ‘Twas me and the biscuit tin. Shhhh!   

Selah.

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P2 comment: Sorry “K” just thought you’d like to know what I have discovered in my latest foray through the APH cyber dustbins…  

To begin here is a link – HERE & or PDF version – for the committee report and recommendations that came out of their 2019 Senate Inquiry into ‘Parliamentary Scrutiny of Delegated Legislation‘.

Extract from the report:    

Chair and Deputy Chair’s foreword

A fundamental principle of parliamentary democracy is that the law should be made by the elected representatives of the people in Parliament. However, despite this, around half the law of the Commonwealth is delegated legislation; that is, law made by or on behalf of the executive government. Too little is known about the role delegated legislation plays in the Australian legal landscape. Parliament routinely delegates its law making powers to ministers, agency heads and senior public servants. While it is often necessary for Parliament to delegate these powers, as it doesn’t always have the time or expertise to deal with the technical details underpinning the law, it is essential that Parliament scrutinise such legislation to guard against the inappropriate exercise of executive power.

The Senate Standing Committee on Regulations and Ordinances (the committee) has performed this role on behalf of the Parliament for almost 90 years. It is one of the oldest standing committees in the Australian Parliament and has spawned numerous similar parliamentary scrutiny committees across Australia and internationally. The committee has always adopted a non-partisan commitment to principles of technical scrutiny, setting aside party politics and policy considerations to focus on issues of general principle affecting the rights of people and Parliament.

While the committee has been one of the Commonwealth Parliament’s most active and important committees, after almost 90 years of operation it is important to inquire into the committee’s continuing effectiveness and future direction. The significant work of the committee can be undermined by a lack of understanding of the role Parliament plays in exercising control over delegated legislation and the essential role the committee plays. When the committee draws its concerns about delegated legislation to the Senate’s attention it is high time that all parliamentarians and the government of the day listen to those concerns and take action to resolve them.

Part II of this report makes a number of recommendations to improve the committee’s existing scrutiny practices – including updating its terms of reference, bringing its powers in line with other standing committees and updating and expanding the principles by which it scrutinises delegated legislation. Currently around three-quarters of the committee’s comments fall under one of its scrutiny principles – whether delegated legislation ‘is in accordance with the statute’. This general description does not indicate the vast range of matters the committee considers. Additional principles should be adopted to clarify the scope of the committee’s existing scrutiny functions and to provide clearer guidance as to its role. Additionally, the committee’s current approach to reporting to the Senate may not be the most effective way of highlighting its scrutiny concerns. The report therefore sets out a number of actions the committee will take to improve its work practices and highlight its important work.

Part III of the report considers the adequacy of the existing framework for parliamentary control and scrutiny of delegated legislation. Unlike many other parliaments, the Australian Parliament has considerable control over delegated legislation (through its power to veto, or disallow, legislative instruments made by the executive). Yet, in practice, it is difficult for parliamentarians to keep abreast of the hundreds of instruments tabled each year, and all too often significant matters of policy are left to be determined by delegated legislation (despite the warnings of the Senate Standing Committee for the Scrutiny of Bills). While the committee draws its technical scrutiny concerns about delegated legislation to the Senate’s attention, there is no consistent scrutiny of its policy implications. Therefore, where delegated legislation gives rise to significant issues, policy committees should be notified and consider whether to conduct an inquiry into its policy merits.

In addition, parliamentary control over delegated legislation is undermined when delegated legislation is exempted from disallowance or sunsetting. It is particularly concerning when this exemption is itself provided for in delegated legislation. There should be strict limits on when delegated legislation can be exempted from disallowance or sunsetting, to ensure adequate parliamentary control. In addition, the law should be publicly available and understood before it comes into force. As a general rule, delegated legislation should commence 28 days after registration (rather than the day after registration), to allow people affected by the law to foresee the legal consequences of their actions.

As parliamentarians, we owe it to the Australian people to act independently, and to remove from the statute book delegated legislation which does not respect individual rights and liberties or the right of Parliament to control the content of the law. The committee will continue to maintain its non-partisan commitment to scrutinising delegated legislation on behalf of the Parliament. It is up to all parliamentarians and the government to ensure that significant matters are not left to be determined by delegated legislation, and to listen and act on the concerns raised by the committee.

You will note that under Part III the committee will now notify policy committees (ie Legislative committees) and/or the Senate when the SDL committee has significant concerns about certain pieces of delegated legislation/instruments.

The first example of this was listed under ‘Matters of Interest to the Senate‘ and in the latest DLM 2of 2020 and somewhat ironically involves the Senate RRAT Legislative Committee. The explanatory correspondence to the Chair Senator Susan McDonald can be read on page 1 HERE.

Under Part II of the report the committee has resolved to increase and improve the principles/terms of reference (see SBG above) for proper more effective scrutiny of delegated legislation. This is underpinned by newly minted reference guidelines for Ministerial departments and government agencies to refer to when responding to the committees identified concerns with a piece of delegated legislation.

This brings me back to the “K”, understandably pessimistic, concern that the SDL committee is ‘Seeking advice from the agency’??    

In fact I have it from the Horse’s mouth (ie the committee Secretariat) that the agency concerned (ie CASA) will be obliged to respond to the committee with a ‘please explain’ why it is necessary for there to be ‘strict liability’ provisions imposed on those particular CASR Parts (Parts 103, 105 and 131) and also the committee’s concerns with the delegated legislation..

…unduly excluding, limiting or failing to provide for independent review of decisions affecting rights, liberties, obligations or interests…

…so this is what Dr Jonathon (I’ve lost my marbles) Aleck will actually have to respond to when addressing the committee’s concerns: 

Reference – https://www.aph.gov.au/Parliamentary_Bus…Guidelines

Guidelines on technical scrutiny principles

The committee examines the technical qualities of all instruments subject to disallowance, disapproval or affirmative resolution by the Senate, and assesses whether they comply with the committee’s non-partisan scrutiny principles. The committee’s scrutiny principles are set out in Senate standing order 23(3). These guidelines provide information on the committee’s approach to applying its scrutiny principles, including:

• Principle (a): compliance with legislative requirements;
• Principle (b): constitutional validity;
• Principle ©: scope of administrative powers;
• Principle (d): adequacy of consultation;
• Principle (e): drafting;
• Principle (f): access and use;
• Principle (g): adequacy of explanatory materials;

• Principle (h): personal rights and liberties;

• Principle (i): availability of independent review;
• Principle (j): matters more appropriate for parliamentary enactment; and
• Principle (k): other technical scrutiny grounds.

MTF? – Yes much…P2