SUBORDINATE LEGISLATION (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 12 May 2010.)

The Hon. M. PARNELL (21:42): I note that when the Hon. Rob Brokenshire introduced this bill he was very brief, the reason being that our former colleague here, the Hon. Rob Lawson (whose bill the Hon. Rob Brokenshire has reintroduced), made a more extensive contribution back in 2009. The Greens support this legislation. One of the reasons we are supporting it I outlined earlier this evening in the debate on the fees being attached to the property identification system for biosecurity.

It is a shame when we are faced with the dilemma of having to disallow the whole of a regulation, even though the vast bulk of it might be something that we support. This is a sensible amendment. I understand that for the government of the day it is a matter of some convenience to be able to mix the good and the bad in regulations, because they know that members of parliament will be loath to disallow the entire regulation when that means throwing the good out with the bad.

This is a sensible measure. It certainly passed this house back in 2009, from memory. My expectation is that it will pass this house again this time and it is worthy of support. I note that the Hon. Stephen Wade will introduce some amendments, and I understand that, whilst we were scheduled to vote on this matter tonight, perhaps we will not now do so to allow members time to consider those amendments, and I welcome that opportunity as well. In terms of the bill as it stands, it has the Greens' support.

The Hon. S.G. WADE (21:44): I rise to indicate that the opposition will support this legislation and I foreshadow an amendment I will move when we get to the committee stage. As the Hon. Mark Parnell has indicated, and as the Hon. Robert Brokenshire indicated in his second reading speech, the parentage of this bill is related to the work of the Hon. Robert Lawson, formerly of this place.

By way of background, of course, the Subordinate Legislation Act 1978 regulates the making, printing and publishing of certain subordinate legislation. Subordinate legislation is legislation made by a body other than the parliament under authority granted to that body often by an act of parliament. Subordinate legislation must be tabled in both houses within six sitting days of being made and can be disallowed by either house within 14 days of being tabled.

In 2009, a former member of this council, the Hon. Robert Lawson, introduced a private member's bill which he highlighted would address four particular weaknesses in the current arrangements for subordinate legislation. Firstly, if either house of the Parliament of South Australia disallows a regulation, the executive can make the same regulation straightaway after the disallowance, and repeatedly do so. This creates uncertainty in the community. This parliament has been witness to some extraordinary ping-pong matches between the parliament and the executive in terms of regulations. It is not a good use of anyone's time.

A second weakness that was highlighted by the Hon. Robert Lawson's bill was that either house has the power only to disallow the whole of a regulation. Parliament does not have the power to disallow part of a regulation. Therefore, while it may only be necessary to remove one part to deal with a problem in the regulation, the parliament is forced to disallow the whole of the regulation or allow the regulation to proceed unamended. There certainly have been cases where I think the parliament felt as though it was being manipulated, because regulations that had one negative element might have had six substantial positive elements, and our capacity to provide parliamentary oversight is undermined.

The third weakness that the Hon. Robert Lawson highlighted was that neither house of parliament has the power to amend regulations. The fourth was that section 10AA of the act provides that regulations will commence four months after they are made but that the minister can allow early commencement if it is considered necessary and appropriate. Over time, almost all regulations are said to be necessary and appropriate for early commencement.

In this regard, I acknowledge the work of the Legislative Review Committee. Unfortunately, I do not see any encouraging signs that the executive is weaning itself from the overuse of the early commencement provision. I am not particularly accusing the current incumbents of the executive benches. I suspect it is a trend that has developed in this state over some time.

As the Hon. Mark Parnell has acknowledged, on 12 May 2010 the Hon. Robert Brokenshire introduced into the Legislative Council a bill identical to that of the Hon. Robert Lawson, and the Hon. Robert Brokenshire indicated that in his short second reading explanation. The bill seeks to remedy the problems identified in the following ways.

Firstly, section 10(6a) is to be inserted. I will not read it, but it allows for disallowance in whole or in part. If a regulation is made in contravention of that subsection, it is void. Provisions that limit the re-enactment of subdelegated legislation, such as that clause, operate in the commonwealth, New South Wales, Tasmania, the Northern Territory and the ACT.

Secondly, the bill deals with whole or partial disallowance. It provides that a regulation could be 'wholly or partly disallowed by resolution of either house of parliament and will cease to have effect to the extent of the disallowance'. As I understand it, the parliaments of New South Wales, Victoria, Western Australia and Tasmania can all disallow a subdelegated piece of legislation in whole or in part. Thirdly, new section 10B would allow parliament to vary or substitute regulations. As I understand it, Western Australia is the only parliament that has a similar provision but does require the concurrence of the other house.

Fourthly, for a regulation to commence in less than four months, the minister would need to certify that 'commencement on the specified date, or at the specified time, is required due to the exceptional circumstances specified in the certificate'. That is provided for in section 10AA. The issues and remedies that the Hon. Robert Lawson's bill sought to address, of course, are still pertinent and of course we support the bill. We have identified, though, an opportunity to improve the legislation, and I will be moving an amendment at a later date to address this issue. The most innovative element in the third reform (the section 10B reform) is allowing either house to amend a regulation without the concurrence of the other house. As I indicated, Western Australia has a similar provision, but it does require the concurrence of the other house.

I appreciate that those of us in the Legislative Council are suspicious of the House of Assembly at times because it is controlled by the government. The very government that is making the regulation that we are reviewing has control of the other house, and people might say, 'Well, what's the point of having an ability to amend if the concurrence of the other house is required?'

Whilst the concurrence of the other house effectively provides the executive with a veto, the executive has a veto anyway, as it has the right to revoke an amended regulation as soon as it is gazetted following amendment by a house; and, as an amended regulation under section 10B is not subject to tabling and disallowance in its own right, our view is that there would be a risk that the bill in its current form would allow the executive to amend its own regulations in the House of Assembly and to effectively subvert parliamentary scrutiny.

On balance, we believe that that is a flaw and that we should follow the precedent of Western Australia and require concurrence; and, after all, we are not by ourselves a parliament, we are one component. It is therefore suggested that concurrence is an appropriate balance of the interests.

We also noted what we believe is a drafting error, and amendment No. 1 in the set that I have distributed is meant to address that. Members might look at it first thinking that it is a substantive change: it is merely meant to be replacing an 'insert' with a 'delete' because it produces a doubling-up of the words. Certainly, we do not believe there is any change in policy, just a drafting issue.

With those few remarks, and thanking the house for the opportunity to foreshadow the amendments to be moved in committee, I indicate that the opposition will be supporting the Hon. Robert Brokenshire's bill.

The Hon. A. BRESSINGTON (21:52): I rise to indicate that I will be supporting the Hon. Robert Brokenshire's Subordinate Legislation (Miscellaneous) Amendment Bill 2010, which seeks to give this parliament the powers to amend regulations tabled by the relevant minister, in addition to its current power to simply disallow the regulation as a whole.

As the honourable member indicated, this bill is identical in almost every way to that introduced by the Hon. Rob Lawson in 2009. I have made clear in this place on numerous occasions my respect for the Hon. Robert Lawson QC, who I have no doubt is now doing very well in the private sphere. His expertise always greatly enhanced the debate in this place, and I for one miss that.

I would also like to commend the Hon. Stephen Wade for being able to step up to the plate to fill that void. As the Hon. Robert Lawson outlined when introducing it, the bill amends the Subordinate Legislation Act 1978 to empower either house of this parliament to amend or delete a contentious section of a regulation as opposed to our—

The Hon. R.P. Wortley interjecting:

The Hon. A. BRESSINGTON: Excuse me?

The Hon. R.P. Wortley interjecting:

The Hon. A. BRESSINGTON: —maybe if you did something worthwhile I'd commend you once in a while as well—current limited power to disallow the entire regulation—

The Hon. R.P. Wortley interjecting:

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): Order! The Hon. Mr Wortley will get his chance.

The Hon. A. BRESSINGTON: While the saying 'using a sledgehammer to crack a walnut' is used often in this place—

The Hon. S.G. Wade: Leave Russell out of this!

The Hon. A. BRESSINGTON: —what, the sledgehammer or the walnut—I can see no more fitting example than disallowing an entire regulation to address a single section of concern, as other members have mentioned. This bill also addresses what is to my mind a fundamental flaw in the current process provided by the Subordinate Legislation Act 1978, that being the ability of the relevant minister to reintroduce regulations the day after they have been disallowed by the parliament.

This happened recently with the regulations under the Workers Rehabilitation and Compensation Act 1986 dealing with exit fees for those businesses seeking to be self-insured, which, despite this council voting to disallow on two separate occasions, was reintroduced without amendment.

I have no doubt that it will again occur with the disallowance today of the regulations under the Livestock Act concerning property identification code fees. Actually, it did not go through, so there you go! By failing to engage with members in an attempt to address and rectify their concerns and instead reintroducing rejected regulations, the executive, I believe, shows contempt for this parliament. This simply should not be allowed to occur.

Additionally, the bill seeks to address the long-abused ability of the relevant minister under section 10AA(2) of the act to commence regulations immediately upon being gazetted, where necessary and appropriate. The act assumes that this would occur only in exceptional cases and that most regulations will come into effect in accordance with section 10AA(1); that is, four months after being gazetted. This period is intended to allow time for this parliament to undergo proper process in scrutinising the regulation through the Legislative Review Committee and, if moved, to debate a motion to disallow before it comes into operation.

This period would ensure that those who would be impacted by the regulation were given the opportunity to engage the democratic process by making representations to the members of parliament about their concerns before having to comply, and it would prevent this parliament being faced with the difficulty of being asked to disallow a regulation that has already commenced. However, as was noted by the Hon. Robert Lawson, ministers certifying that it is necessary and appropriate has become the norm. This is undoubtedly due to this threshold being too easily satisfied, hence this bill is proposing to require certification that there are exceptional circumstances justifying early commencement.

I can see no principle of governance that this bill offends. In fact, this will only enhance the role of this parliament in overseeing, scrutinising and contributing to instruments of our law and better reflects its supremacy over the executive, as is inherent in the Westminster democracies. While the government will no doubt oppose the bill, as it did in 2009, it will do so not in the interests of this parliament or the people it represents, but in its own self-interest, for which it should be ashamed. I commend the bill to the house.

The Hon. J.A. DARLEY (21:56): I rise briefly to speak on this bill. I note that the bill is identical to that previously introduced by the Hon. Robert Lawson. Whilst I appreciate what the Hon. Robert Brokenshire is trying to achieve through this bill, I have some reservations about how it will work in practice. The role of making regulations is one that has always been within the purview of the executive arm of government.

It is government agencies that are responsible for all the legwork and consultation involved in the making of regulations. The Legislative Review Committee plays a pivotal role in examining the regulations and the process by which those regulations have been made, including consultation with interested parties and the community. Either house of parliament has the power to move to disallow any regulations that are considered unacceptable.

This power is particularly imperative to members of the Legislative Council. That said, it sometimes results in an entire regulation being disallowed, even if it is only one part of that regulation that is offensive. I myself have a disallowance motion before the house which, as a whole, is not unacceptable; however, I cannot simply move to disallow that part that is of concern to me.

The process for moving disallowance motions and disallowing regulations is by no means perfect; however, I am concerned that the measures proposed by the Hon. Robert Brokenshire could potentially circumvent the checks and balances currently undertaken in relation to regulations. I am not suggesting that regulations as presented by the executive are always right, but it is not the procedural role of the parliament to effectively be amending regulations without adequate provisions for scrutiny. Given these concerns, I will not be supporting the bill.

The Hon. R.P. WORTLEY (21:58): It is good to hear a responsible presentation. This bill seeks to amend the Subordinate Legislation Act 1978 to prevent regulations from being reintroduced immediately after they have been disallowed, to allow either house of parliament to disallow part of a regulation or to vary or substitute regulations, and to replace the current test of 'necessary and appropriate' for a certificate of early commencement with a test of 'exceptional circumstances'.

This bill is the same bill as that which was introduced in this place on 14 October 2009 by the Hon. Robert Lawson MLC. The government opposed the bill then and it opposes it now, for the same reasons. The government is particularly concerned with the clause in the bill allowing the disallowance part of a regulation and preventing the executive from making a regulation of substantially the same effect as the disallowed regulation within six months after the disallowance.

The disallowance of one provision, or certain words in a regulation, has the potential to radically change the effect of the regulation or even to render provisions of the principal act ineffective. This is completely undesirable. Further, if a regulation cannot be remade for six months because it is of substantially the same effect as the disallowed regulation, the consequences of such an action may be detrimental to the effective functioning of the principal act. For this reason, the government opposes the bill.

Debate adjourned on motion of Hon. P. Holloway.