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, which I think I can comfortably say is before any of us were born. 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 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 fee 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 create 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 the 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 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 the annual process, or when new fees need to be imposed outside the usual 1 July time frame. Clause 5(3) of the bill removes the current irregular commencement provisions (which provides for commencement within 14 sitting days after the regulation has been laid before the 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 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 to make the regulations under the existing act) and the Government Printer. Accordingly, I commend the bill to members and I seek leave to have the explanation of clauses inserted in Hansard without my reading it.
Explanation of Clauses
These clauses are formal.
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.
This clause sets out requirements and procedural provisions in respect of fee notices.
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.
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.
Debate adjourned on motion of Mr Brown.