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1.4  Review procedures

When setting cost recovery charges, it is useful to be aware of the potential review procedures that it could be subject to.

Regulations Review Committee

The Regulations Review Committee (the Committee) acts on Parliament's behalf to ensure that delegated law making powers are used appropriately. It can examine regulations and investigate complaints about regulations. It reports to Parliament and can move that the House of Representatives vote to 'disallow' a regulation. A fuller discussion of the Committee and its role is available in the OAG's guidance.

The Committee uses the grounds set out in Parliament's Standing Order 319(2) to determine whether a regulation setting a fee should be brought to the attention of Parliament. The most relevant grounds are likely to be:

  • The regulation is not in keeping with the general objects and intentions of the statute under which it is being made (Standing Order 319(2)(a)).
  • The regulation trespasses unduly on personal rights and liberties (Standing Order 319(2)(b)).
  • The regulation makes some unusual or unexpected use of the powers conferred by the statute under which it is made (Standing Order 319(2)(c)).
  • The regulation is more appropriate for parliamentary enactment (Standing Order 319(2)(f)).

Example: Migrant settlement fees

In 1998 the Committee considered a regulation that set out a migrant settlement fee payable by applicants for residence visas or permits. A large portion of the fee was intended to go towards the cost of providing English language tuition for non-English speakers. The fee was the same regardless of whether the applicant needed this tuition or not. The Committee recommended that the regulation be revoked under Standing Order 319(2)(a) because the fee could be considered a tax, which would not be in keeping with the general objectives and intentions of the enabling legislation.

Judicial review

There are grounds relating to the process followed when setting fees or levies on which a regulation could be challenged in the courts through judicial review. The High Court has the power to invalidate a fee if, for example, upon reviewing the process by which it was set, the Court finds that the process was unfair or, unreasonable or that irrelevant considerations were taken into account.

Review by the Auditor-General

The Auditor-General can examine the process used to set charges. This may inform advice to the Regulations Review Committee about whether cost recovery setting processes are in line with the relevant guidelines. The Auditor-General may also look at the cost recovery setting process as part of its annual auditing duties, or as part of its other roles, such as conducting inquiries.

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