NCP National Competition Policy Implementation in Queensland Queensland Legislation Review Timetable A QUEENSLAND GOVERNMENT POLICY STATEMENT JULY 1996 Queensland Legislation Review Timetable A QUEENSLAND GOVERNMENT POLICY STATEMENT JULY 1996 TABLE OF CONTENTS Introduction 1 2 3 4 5 6 7 8 9 5 Purpose ........................................................................................................................................ 5 Background ................................................................................................................................. 5 Development of Queensland Review Timetable ................................................................ 6 Coverage of Legislation ............................................................................................................ 6 Legislation forming part of joint or “co-operative” Commonwealth-State regulatory or administrative arrangements ........................................................................ 7 Local government local laws and planning schemes ........................................................ 7 Development of public interest test methodology ............................................................. 7 Conduct of NCP legislation review exercises ..................................................................... 8 Other Review Arrangements for Queensland Legislation ............................................... 9 Attachment 1: Guidelines for Identifying “Measures that Restrict Competition” for the Purposes of Queensland Legislation Review Exercise. ............................................................................. 11 Attachment 2: Queensland Legislation Identified (as at 1 June 1996) as Forming Part of Joint or “Co-operative” Commonwealth-State Regulatory Arrangements for the Purposes of NCP Legislation Review. ........................................................................................................... 13 Attachment 3: Schedule of Identified Restrictions on Competition in Portfolio Legislation and Proposed Timing of Reviews to Meet the Requirements of NCP.......................................... 14 Index of Schedule PORTFOLIO/DEPARTMENT Consumer Affairs Office (Department of Justice) .................................................................... 17 Corrective Services .......................................................................................................................... 23 Local Government & Planning ..................................................................................................... 24 Education ........................................................................................................................................... 27 Emergency Services ......................................................................................................................... 30 Environment ...................................................................................................................................... 31 Family, Youth & Community Care ............................................................................................... 34 Health ............................................................................................................................................... 35 Training & Industrial Relations .................................................................................................... 42 Justice ............................................................................................................................................... 45 Mines & Energy ................................................................................................................................ 47 Natural Resources ............................................................................................................................ 50 Premier & Cabinet ........................................................................................................................... 52 Primary Industries ........................................................................................................................... 53 Tourism, Small Business & Industry ........................................................................................... 59 Office of Racing (Police Portfolio) ................................................................................................ 61 Transport and Main Roads ............................................................................................................. 62 Treasury ............................................................................................................................................. 66 Public Works & Housing ................................................................................................................ 70 Queensland Legislation Review Timetable National Competition Policy INTRODUCTION 1. Purpose The purpose of this timetable is to meet the requirements of Clause 5(3) of the Competition Principles Agreement of the National Competition Policy which obligates Queensland and the other participating jurisdictions to develop a timetable for the review, and where appropriate the reform, of legislation containing measures that restrict competition. 2. Background In April 1995, the Commonwealth and all State/Territory Governments signed a set of agreements to implement a National Competition Policy (NCP). Under the policy, each participating jurisdiction is committed to implementing a series of competition reforms within specified time frames in accordance with a common set of principles. One of these obligations is that each participating jurisdiction develop a timetable by mid 1996 for review, and where necessary reform, by the year 2000, of all legislation that contains measures that restrict competition. NCP requires that legislation that restricts competition be reformed unless it can be shown, as a result of the review process, that: (i) the benefits of the restriction to the community as a whole (ie, not just to a particular sector, industry or interest group) outweigh the costs of the restriction - often called the "public benefit" test; and the objectives of the legislation can only be achieved by restricting competition (which in turn implies that proper consideration is given to all feasible alternatives). (ii) In terms of the NCP agreements, the specific requirements in regard to legislation review are to: (i) publish a timetable by mid 1996 listing all legislative measures that restrict competition and specifying when that legislation is to be reviewed over the period up to the year 2000; subject all proposals for new legislation that restricts competition to the public benefit test; (ii) (iii) where legislation that restricts competition is retained after the initial review, to subject that legislation to a further review at least once every 10 years; and (iv) report annually to the National Competition Council (NCC) on progress in implementing the review timetable. Subsequently, it has been agreed between the Commonwealth and States/Territories that all reviews should be completed, and implementation of the appropriate reform programs be commenced (or, at the very least, be endorsed by the relevant Government) by 31 December 2000. A Queensland Government Policy Statement July 1996 5 P National Competition Policy Queensland Legislation Review Timetable The Queensland Government recognises two key deadlines in regard to the legislation review component of NCP. Firstly, there is a need to review existing legislation that restricts competition completed by 31 December 1999 (or, at the very latest, by 30 June 2000 in particular cases where an extension into the first six months of the year 2000 has been approved by the Queensland Government ). Secondly, implementation of any necessary reforms stemming from the reviews (or, at the very least, official Government endorsement of those reforms), is required by 31 December 2000. 3. Development of Queensland review timetable In Queensland, the process for developing a review timetable was co-ordinated by the National Competition Policy Unit within the Treasury Department. This process commenced in December 1995 with a request by the NCP Unit for each department to identify measures that restricted competition in Acts and subordinate legislation which they administered. The guidelines developed by the NCP Unit to assist departments in such measures, are set out in Attachment 1. Essentially, the 11 categories of actual or potential restrictions set out in these guidelines cover what was included in the two broad types of measures that restrict competition: (namely barriers to entry into a market and restrictions on competition within a market), as identified in the Report of the Independent Committee of Inquiry into National Competition Policy (the “Hilmer Report”) of August 1993. Based on the Treasury guidelines, departments were requested to provide data on relevant legislation to the NCP Unit, together with an indicative time for review of that legislation over the period to the year 2000. On the basis of this information, a review timetable schedule has been prepared which includes a summary of the identified measures that restrict competition. This is set out in Attachment 3. Some of the nominated review dates may be altered as a result of further negotiations with departments, relevant stakeholders, and the NCP agencies in the other jurisdictions, particularly in regard to legislation that might ultimately be the subject of some form of either national or inter-jurisdictional review. 4. Coverage of legislation As well as Acts of Parliament, the Queensland NCP legislation review exercise will cover “subordinate legislation” as defined in section 9 of the Statutory Instruments Act 1992 (which includes instruments such as regulations, ordinances, rules, by-laws, orders in council and proclamations) and also local government laws made under the City of Brisbane Act 1924 and the Local Government Act 1993. However, it is not intended that the review exercise will include administrative arrangements, policies or procedures of departments and regulatory agencies, except where such arrangements, policies or procedures are promulgated as subordinate legislation. 6 A Queensland Government Policy Statement July 1996 Queensland Legislation Review Timetable National Competition Policy 5. Legislation forming part of joint or "co-operative" Commonwealth-State regulatory or administrative arrangements There is Queensland legislation in a number of areas designed to give effect to the State's participation in joint or “co-operative” Commonwealth-State regulatory arrangements. It is assumed that any review that may be necessary under NCP will be co-ordinated at the national level, in which case the relevant Queensland legislation will be reviewed in accordance with any timetable negotiated between the Commonwealth and the States/Territories and in accordance with any pre-existing inter-Governmental agreements that underpin national regulatory arrangements. The principal pieces of legislation in this category are listed in Attachment 2. Additional legislation may be added to this list following publication of review timetables by the Commonwealth and the other jurisdictions and any subsequent discussions on the subject of inter-jurisdictional regulatory arrangements. 6. Local government local laws and planning schemes Local government laws will be included in the NCP legislation review exercise. The Department of Local Government and Planning (DLG&P) will review the set of model local laws made under the Local Government Act 1993, while individual local governments will be asked to review their own specific local laws in accordance with a methodology which will be agreed between Treasury, the Local Government Association of Queensland (LGAQ), DLG&P and the Business Regulation Review Unit (BRRU) of the Department of Tourism, Small Business and Industry. This will be co-ordinated with a general review of local laws required under the Local Government Act. However, at this stage, it is not proposed to include local government planning schemes in the initial NCP review exercise, but rather it is intended to phase in NCP review requirements over time as part of a general review process for local planning schemes (currently set out in the Local Government (Planning and Environment) Act 1990, ie. local planning schemes can run for 10 years but have to be reviewed after seven years in accordance with the requirements of that Act). Review arrangements for local planning schemes will also be considered as part of a current review of previous public submissions on the draft Planning, Environment and Development Assessment (PEDA) Bill commissioned by the Minister for Local Government and Planning. 7. Development of public interest test methodology The Queensland Government is in the process of developing an appropriate benefit-cost methodology to be used to assess the public interest in legislation review exercises. This will include both a “User's Guide” type document setting out the guidelines for assessing costs and benefits for various NCP purposes, including legislation review, and a software package to assist departments to work through the process. A Queensland Government Policy Statement July 1996 7 P National Competition Policy Queensland Legislation Review Timetable It is also the intention that a modified version of the guidelines and software package will also be developed for review of local government laws and local government planning schemes. 8. Conduct of NCP legislation review exercises The Queensland Government recognises that a number of different legislation review processes could be employed in view of the likely volume of reviews to be conducted within a comparatively short time frame. Accordingly, there is the possibility that not all departments will have adequate resources available to undertake several reviews (and particularly major ones) simultaneously, and recognising that some reviews will inevitably be more complex and sensitive than others. The possible review processes for Queensland legislation (all of which will need to include the eventually agreed public interest test methodology) include: (i) internal review by the relevant line department (where it would be desirable for the review to be carried out a central policy/legislation reform unit that is independent from that part of the department which actually administers the legislative arrangements that are under review); review by a specialist legislation review agency such as the Business Regulation Review Unit (BRRU) of the Department of Tourism, Small Business and Industry; (ii) (iii) review by a formal inter-departmental committee, especially in cases where more than one department is involved in the administration of the legislation or where one or more of the “central agencies” (such as Treasury and the Department of the Premier and Cabinet) wish to be directly involved in the review process; (iv) review by a formally constituted review committee (as is the case with the sugar industry review underway at present), comprising representatives of parties affected by the legislation in question (including community groups where appropriate) as well as representatives of the relevant department/s chaired by a suitably qualified or “independent” chairperson; (v) review by a suitably qualified external (ie, private sector) consultant engaged by the relevant department after consultation with NCP Unit and BRRU; and (vi) national review by either the National Competition Council (NCC) or by other means including by way of external consultants jointly appointed by the participating jurisdictions, by State/State or State/Commonwealth review committees or by other means as might be proposed. The review process and terms of reference to be employed for each particular review will be negotiated on a “case by case” basis between the relevant department and the NCP Unit which will also consult with BRRU and the State Development Co-ordination Branch of the Department of the Premier and Cabinet, prior to seeking formal Government endorsement. 8 A Queensland Government Policy Statement July 1996 Queensland Legislation Review Timetable National Competition Policy The NCP agreements require that the terms of reference of an NCP legislation review exercise must enable the review to: (i) (ii) clarify the objectives of the legislation; identify the nature of the restriction on competition; (iii) analyse the likely effect of the restriction on competition and on the economy generally; (iv) assess and balance the costs and benefits of the restriction; and (v) consider alternative means for achieving the same result, including non-legislative approaches. It is the Queensland Government's intention that, regardless of the review process employed, each review exercise will incorporate an appropriate program for consultation with, and input from, relevant stakeholders. 9. Other Review Arrangements for Queensland Legislation As a quite separate exercise to the NCP legislation review requirements, the Business Regulation Review Unit (BRRU) of the Department of Tourism, Small Business and Industry also has a role to assist all departments in the preparation of Regulatory Impact Statements for significant new or amended subordinate legislation, taking into account economic, social and environmental considerations. Furthermore, the Queensland Government's proposed Small Business Policy will require a review of all regulations, licences, etc affecting business and where possible to reduce such regulation. This policy flows on from the recently completed Systematic Review of Business Legislation and Regulations program administered by BRRU. The Queensland Government proposes to establish an industry task force, comprising representatives of the major industry and small business bodies, to oversee a review of regulation and licensing imposts on business. The review process, which will also be administered by BRRU, will involve wide consultation with the business community. The industry task force will be responsible for preparing the recommendations to the Government on specific measures to reduce the regulatory burden. The complete details of the review arrangements to be implemented to give effect to the Small Business Policy will shortly be announced by the Queensland Government. Under Part 7 of the Statutory Instruments Act 1992, subordinate legislation (such as regulations) expires on the 10th anniversary of the day of its making unless a regulation is made under that Act exempting the legislation from expiry. However, as per section 61 of the Act, subordinate legislation made on or before 30 June 1987 will not expire until 1 July 1997. The grounds for exemption, as per section 56 of the Act, are fairly limited. A Queensland Government Policy Statement July 1996 9 P National Competition Policy Queensland Legislation Review Timetable The drafting of subordinate legislation is carried out by the Office of the Parliamentary Counsel, a statutory office located within the Premier's portfolio. While the “automatic expiry” provisions of the Statutory Instruments Act apply to virtually all subordinate legislation and not only to legislation required to be reviewed under NCP, these provisions have been taken into account in developing the NCP legislation review timetable insofar as subordinate legislation is concerned. In the event that any of the expiring legislation is proposed to be remade, it will be subject to NCP legislation review principles prior to making the legislation ie., any measure that restricts competition will be subject to a public interest test. The Queensland Government recognises that it is particularly important from a resource perspective to minimise duplication or overlap relating to the various review processes. Accordingly, the NCP Unit will liaise closely with BRRU and the Office of the Parliamentary Counsel to ensure that the Government's review processes under National Competition Policy, the Statutory Instruments Act and the proposed Small Business Policy are properly co-ordinated. 10 A Queensland Government Policy Statement July 1996 Queensland Legislation Review Timetable National Competition Policy ATTACHMENT 1 GUIDELINES FOR IDENTIFYING “MEASURES THAT RESTRICT COMPETITION” FOR THE PURPOSES OF QUEENSLAND LEGISLATION REVIEW EXERCISE In December 1995, and following endorsement by the NCP Steering Committee, departments were asked to identify legislative provisions, in both primary and subordinate legislation, that provide for any of the following, namely: (i) (ii) an outright prohibition in regard to any particular business activity; a statutory monopoly, namely where a body specified in the legislation is created or given powers, either State-wide or in a particular locality, as the sole participant allowed to engage in a particular business activity; (iii) licensing or registration requirements for persons or bodies wishing to engage in a particular business activity and which operate on the basis of either limiting the number of participants or limiting participation to those persons or bodies that meet defined standards, qualifications or training or to those who hold membership of a particular occupational or professional organisation; (iv) allocation of quantitative entitlements, quotas or franchises among participants engaging in a particular business activity; (v) requirements for prescribed quality or technical standards to be observed, or for specified equipment to be used, in regard to a particular business activity, other than those requirements that apply generally in regard to public/workplace health and safety; (vi) price control provisions, whether by way of setting, or prescribing a process for determining, the maximum/minimum prices or charges for a specified good or service or the maximum/ minimum rates of commission, agency or fees for any good or service; (vii) restrictions on the conduct of a business relating to matters such as hours of operation, size of premises, provision of specified facilities, geographical area of operation, advertising or promotion, sector-specific operation (eg, retail vs wholesale), type of good or service allowed to be offered for sale, etc; (viii) the nomination of a particular person or body as the sole or preferred customer or supplier in regard to a particular business activity; (ix) measures that have the effect of conferring a benefit on a particular person or body engaged in a particular business activity, relative to other parties engaged in the same activity, including prescribing technical specifications or standards that can only be met by a particular operator, prescribing different requirements for public sector vis a vis private A Queensland Government Policy Statement July 1996 11 P National Competition Policy Queensland Legislation Review Timetable sector operators or making financial assistance available (including the waiver of various State or local government charges or fees as well as direct assistance measures such as a grant or subsidy) if a business is carried on at a particular place or in a particular manner; (x) the allocation of licences or other authorities which either allow the holder access to natural resources (including water, minerals, forests and fisheries) [see also note below] or which create rights, or permit specified activities, denied to non-holders (for example, licences to dispose of waste material in a particular manner); and restrictions that have the effect of limiting or preventing participation in a particular business activity by interstate or overseas participants, for example by way of preferential purchasing arrangements for State-based suppliers, statutory restrictions on supply or purchase arrangements outside the Queensland market and product standards that differ significantly from interstate or international standards. (xi) Note: Following subsequent consideration of the matter of restrictions on access to natural resources, the following principles have been adopted in deciding if there is a restriction on competition, namely : 1. Only restrictions that exist in Acts and regulations are to be considered in deciding if there is a restriction. Crown ownership or control of the resource, and licensing schemes* to regulate access to those resources are not restrictions per se. Limits on the number of licences issued, or on the amount of the resource attached to a license, are restrictions, unless required for legitimate resource management purposes.** Conditions imposed, or discrimination in the issuing, renewal or transfer of licences are restrictions unless for legitimate resource management purposes or for reasons associated with normal commercial dealings eg. financial position and previous non-performance of applicants. Non-license conditions prescribed in legislation relating to harvesting and use of the resource (eg. closed seasons, harvesting methods, etc.) are restrictions unless for legitimate resource management purposes. 2. 3. 4. 5. * “licence” includes permits, allocations and all other methods for controlling access to natural resources vested in, or under the control of, the Crown in the right of the State of Queensland. “resource management purposes” means ensuring a natural resource is managed in an ecologically sustainable way in accordance with recognised scientific evaluations. ** 12 A Queensland Government Policy Statement July 1996 Queensland Legislation Review Timetable National Competition Policy ATTACHMENT 2 QUEENSLAND LEGISLATION IDENTIFIED (AS AT 1 JUNE 1996) AS FORMING PART OF JOINT OR “CO-OPERATIVE” COMMONWEALTHSTATE REGULATORY ARRANGEMENTS FOR THE PURPOSES OF NCP LEGISLATION REVIEW. • • • • • • • • • • • • Corporations (Queensland) Act 1990 Consumer Credit (Queensland) Act 1994 and the Consumer Credit Code Financial Institutions Act 1992 and the Financial Institutions Code Securities Industry (Application and Laws) Act 1981 Futures Industry (Application of Laws) Act 1986 Trade Measurement Act 1990 Agricultural and Veterinary Chemicals (Queensland) Act 1994 Biological Control Act 1987 Food Standards Regulation 1994 under the Food Act 1981 (which adopts the National Food Standards Code) Workplace Health and Safety (Lead) Compliance Standard under the Workplace Health and Safety Act 1995 that part of the Standard Building Law under the Building Act 1975 which adopts The Building Code of Australia legislation that provides for the adoption of provisions from the Commonwealth's Classification (Publications, Films and Computer Games) Act 1995 namely the Classification of Computer Games and Images (Interim) Act 1995, the Classification of Films Act 1991 and the Classification of Publications Act 1991 Mutual Recognition Act 1992 Wheat Marketing (Facilitation) Act 1989 • • A Queensland Government Policy Statement July 1996 13 P National Competition Policy Queensland Legislation Review Timetable ATTACHMENT 3 SCHEDULE OF IDENTIFIED RESTRICTIONS ON COMPETITION IN PORTFOLIO LEGISLATION AND PROPOSED TIMING OF REVIEWS TO MEET THE REQUIREMENTS OF NATIONAL COMPETITION POLICY. NOTES: 1. The list of legislation cited for review has been compiled on the basis of legislation which is on the statute book or which is before the Parliament of Queensland as at 30 June 1996. Any legislation enacted subsequent to that date which is required to be included in the NCP review arrangements will be cited in revised schedules which will be published in the annual reports by the Queensland Government on progress towards implementing the legislation review element of NCP. The publication of these annual reports is another requirement of the NCP Agreements. There is no legislation currently (ie. as at 30 June 1996) identified for NCP legislation review in respect of the Department of Police, the Department of Economic Development and Trade and the Office of Sport. Review dates generally refer to the period 1 July in the first cited year to 30 June in the second cited year, except in the case of 1998-1999 where the review period may extend to 31 December 1999 for certain reviews. However, the workers' compensation legislation is set down for review in the period 1 July 1999 to 30 June 2000 in accordance with a policy decision of the Queensland Government to accept a recommendation in this regard stemming from a review into workers' compensation arrangements (the Kennedy Inquiry) which reported in July 1996. The proposed review dates may be altered in some cases depending on Government review priorities over time, the outcome of negotiations with the other jurisdictions in regard to legislation that may be suitable for some form of national or interjurisdictional review and the outcome of consultation with relevant stakeholders in regard to proposed NCP legislation review arrangements. 2. 3. 4. 14 A Queensland Government Policy Statement July 1996 Queensland Legislation Review Timetable National Competition Policy Queensland Legislation Review Timetable A Queensland Government Policy Statement July 1996 15 P - 17 - - 18 - - 19 - - 20 - - 21 - - 22 - - 23 - - 24 - - 25 - - 26 - - 27 - - 28 - - 29 - - 30 - - 31 - - 32 - - 33 - - 34 - - 35 - - 36 - - 37 - - 38 - - 39 - - 40 - - 41 - - 42 - - 43 - - 44 - - 45 - - 46 - - 47 - - 48 - - 49 - - 50 - - 51 - - 52 - - 53 - - 54 - - 55 - - 56 - - 57 - - 58 - - 59 - - 60 - - 61 - - 62 - - 63 - - 64 - - 65 - - 66 - - 67 - - 68 - - 69 - - 70 - - 71 -