Incorporated by Reference in Regulations

I appreciate the efforts of Canadian Senators to fix problems with legislation – specifically those which make legislative research more interesting.

One example of the Seante fixing legislation, is the Statutes Repeal Act, S.C. 2008, c.20 which in the words of Simon Foddensweeps up behind our legislators, killing off statutes that were passed and assented to nine years or more ago but that were never proclaimed in force“. I love the Statutes Repeal Act. It helps to make my job interesting.

In October of 2012, the Senate again committed to working on fixing legislation – this time with a relatively obscure issue regarding Federal regulations. I am writing about Bill S-12 from the 41st Parl., 1st Sess.. The short title of the bill is Incorporation by Reference in Regulations Act.

The summary of the bill states:

This enactment amends the Statutory Instruments Act to provide for the express power to incorporate by reference in regulations. It imposes an obligation on regulation-making authorities to ensure that a document, index, rate or number that is incorporated by reference is accessible. It also provides that a person is not liable to be found guilty of an offence or subjected to an administrative sanction for a contravention relating to a document, index, rate or number that is incorporated by reference unless certain requirements in relation to accessibility are met. Finally, it makes consequential amendments to the Statutory Instruments Regulations.

When in force, this bill has the potential of making point-in-time research for Federal Regulations particularly complicated. I look forward to tracking down referenced information like indexes, rates or numbers that are referenced in the bill and marrying their publication dates with those intended in the legislation.

The bill does impose an obligation on the regulation-making authority to ensure that the items referenced are accessible. Another interesting feature at a time when the government depository services program ihas been on the chopping block and the paper distribution of government documents has essentially ceased. Perhaps Library and Archives Canada could make an argument that if this bill passes, they would need to resume the Interlibrary Loan service that no longer exists in order to help the regulators meet their obligations. My thought is that organizations whose work falls under federal regulation will be hiring plenty of library people in the future, especially those skilled in legislative research.

The Library of Parliament has produced a research publication about this bill.

Happy reading.

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Comments

  1. The Senate bill may have been inspired by similar provisions in Ontario’s Legislation Act, 2006. Ontario was particularly concerned with access to the incorporated materials.

    Access to incorporated document and earlier versions

    (4) When a document is incorporated by reference as described in subsection (1), the Minister responsible for the administration of the Act under which the regulation is made shall take steps to ensure that,

    (a) the incorporated document is readily available to the public, on and after the day the regulation or amending regulation containing the reference is filed under Part III (Regulations); and

    (b) the incorporated document and any earlier versions of it that were previously incorporated into the regulation or into a predecessor of the regulation remain readily available to the public

    The legislation is also concerned with the sub-delegation issue mentioned in the Library of Parliament’s report. That issue has been dealt with by subsection 62(3), which makes the incorporation of an outside (non-legislative) document fixed, or ‘closed’. This rule may be overridden by legislation, which would have to expressly authorize the regulation-making authority to do a rolling incorporation by reference -at which point that authority is no longer sub-delegating, but delegating…