The Single-Use Plastics Bill
The Tasmanian Government introduces the Single-Use Plastics (Phase-Out) Bill. As passed by the House of Assembly, clause 7 provides: 'A person must not supply a scheduled single-use plastic item.' Clause 2 defines a 'scheduled item' as 'any item prescribed by the regulations'. The Bill goes to the Legislative Council, which inserts a two-year exemption for businesses with fewer than five employees. The House of Assembly refuses the amendment and the Council insists. Meanwhile a Devonport café owner asks her local MP whether the ban applies to her from 1 July. The Minister then announces: 'If the Parliament will not act, I will prescribe the items by regulation under the Environmental Management and Pollution Control Act 1994 (Tas) and ban them that way.'
1. By 1 July the Bill has passed one house but not the other and the houses remain in deadlock. What is the legal status of the Bill, and can the café owner be prosecuted under it?
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A Bill becomes an Act only when it has passed both houses and received royal assent from the Governor of Tasmania. Until assent, it has no legal force at all. It is a proposal, not a law. So the café owner cannot be prosecuted, and any enforcement action taken under the Bill would be unlawful.
Tasmania has a bicameral Parliament - the House of Assembly and the Legislative Council - but it has no deadlock-breaking mechanism equivalent to s 57 of the Commonwealth Constitution. There is no double dissolution and no joint sitting. If the houses will not agree, the Bill simply lapses, either when the session ends or when Parliament is prorogued. It must be reintroduced from the beginning if the government wants to try again.
Students often assume the Governor could break the deadlock. She cannot. The Governor acts on the advice of the responsible minister and assents to Bills that have properly passed both houses; she does not choose between them. The practical consequence is that the Legislative Council, which is not controlled by the executive, has a genuine veto - which is exactly why the Council's amendment has to be taken seriously rather than simply overridden.
2. Can the Minister achieve the ban by regulation under the environmental management Act? Explain the legal limits on delegated legislation.
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Only if the parent Act authorises it. Delegated legislation is valid only within the power conferred by the Act under which it is made. A regulation that goes beyond that power is ultra vires and a court will declare it invalid.
There are two hurdles here:
- Subject matter. The regulation must fall within a regulation-making power in the Environmental Management and Pollution Control Act 1994 (Tas). The Minister must point to a specific head of power and satisfy the court that a ban on supplying a product is a measure of the kind the Act contemplates, having regard to its objects.
- Purpose and scope. A general regulation-making power is not a free-standing law-making power. It must serve the Act's purposes, not replace the Act's scheme with a policy the Minister prefers.
There is a further constitutional concern. Doing by regulation what Parliament has just refused to enact is constitutionally contentious. A court will not ordinarily examine parliamentary debates to strike down a regulation, but it will scrutinise the regulation strictly, and a parliamentary scrutiny committee can recommend that it be disallowed. The proper course, if the Minister wants a statutory ban, is to return to Parliament with a new Bill.
3. A constituent asks the MP: 'Can we force a referendum on this, the way they do in some countries?' Advise her.
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No. Australia has no citizen-initiated referendum at either Commonwealth or State level. A petition signed by any number of voters cannot compel a referendum or a vote in Parliament.
At Commonwealth level, s 128 of the Constitution allows a referendum only on a Bill to alter the Constitution that has passed both houses (or one house twice). It is a mechanism for constitutional change, not for ordinary legislation, and it cannot be triggered by the public.
Tasmania's Constitution Act 1934 likewise provides for a referendum only in narrow circumstances relating to entrenched constitutional matters. A plastics ban would not fall within them.
The realistic avenues are the ordinary political ones: lobbying MPs, particularly the independent-minded Legislative Council members who are the actual obstacle here; petitions to Parliament, which must be presented by a member; committee inquiries; submissions to the scrutiny committee if a regulation is made; media and public campaigning; and voting. There is also a legal avenue - if the Minister does make the regulation, any affected business can challenge it in the Supreme Court as ultra vires. That is a genuine remedy; a referendum is not.