Legislative Review Committee: Information Guide

Adjourned debate on motion of Hon. N.J. Centofanti:

That the report of the committee on its Information Guide be noted.

(Continued from 9 September 2020.)

The Hon. I. PNEVMATIKOS (17:30): Since its formation in 1991 through the Parliamentary Committees Act, the Legislative Review Committee has been an instrumental part of this parliament. The committee's Information Guide gives parties reporting who submit regulations an outline of how the committee should be operating. In South Australia, the focus of the Legislative Review Committee is to scrutinise subordinate legislation or, as usually referred to, delegated legislation.

The committee's main purpose is to inquire into, consider and report on any matters concerned with legal, constitutional or parliamentary reform or the administration of justice; any act or subordinate legislation; and any other functions imposed on the committee by an act or resolution of both houses of parliament. A review of legislative scrutiny committees in Australia identifies that the basic role of legislative review committees is to scrutinise legislation to ensure good lawmaking processes and outcomes.

The committee also interacts with the Subordinate Legislation Act 1978. This act requires the Legislative Review Committee to review every regulation, rule or by-law made by state or local governments, the courts or statutory authorities. In addition to these requirements, the committee was formally placed in charge of inquiring, considering and reporting on eligible petitions tabled in either house of the parliament with the passing of the Parliamentary Committees (Petitions) Amendment Act in 2019.

Currently, there are three petitions before the committee. I understand there are more petitions in the pipeline that will gradually make their way to the committee in due course. The Legislative Review Committee utilises scrutiny principles in considering all delegated regulations referred to it. The committee does not have regard or consider the substantive elements of any delegated legislation as to its merits or otherwise, this is the role of the parliament. Rather, the committee has a technical function to ensure that the regulations are within legislative requirements and any qualifying act.

The committee assesses whether the regulations are constitutionally valid, that adequate consultation, particularly by those likely to be affected, has occurred, does not unduly trespass on personal rights and liberties and the drafting is not defective or unclear, to mention a few of the scrutiny principles.

The Legislative Review Committee is scheduled to meet on Wednesday morning in any given sitting week. The committee is comprised of three government members (two from the other place and one from this place), two opposition members (one from the other place and one from this place) and one crossbench member from this place. The chair of the committee is an upper house government member. As well as committee members, the committee has a secretary and research officer to provide support, guidance and assistance to members in their deliberations.

With increasing work pressures in terms of both the volume of subordinate legislation to be considered and scheduling of hearing evidence that arises from the petitions the committee is considering, various ad hoc times have been added to the scheduling of meetings. Insufficient scheduling time for meetings and inadequate resourcing to facilitate the committee's undertakings is of great disadvantage to this parliament. This means that meetings have been scheduled in lunch breaks in sitting weeks, which are already burdened with various other meetings and commitments.

As a consequence, delegated legislation is not always considered thoroughly, nor are the inquiries able to be considered in a timely and thorough fashion to address the petitions, in addition to reporting to both houses of parliament and despite the best endeavours of staff and members of the committee. This committee provides parliamentary oversight on laws that have been delegated by the parliament to the executive branch, and the lack of support given to this committee risks the committee's integrity.

Inadequate reporting by the committee to both houses of parliament on any disallowance motions, in particular no reason provided to both houses of parliament in terms of why no action or a disallowance motion is put by the committee. Whilst the committee itself does not have the power to disallow regulations, as a legislative scrutiny committee we should be providing recommendations for the consideration of parliament. This would bridge the gap between the committee and the parliament, making the committee transparent and efficient in deliberating subordinate legislation.

In other Australian jurisdictions, the scrutiny committees provide a dedicated legislation monitor and disallowance alert during each sitting week. This outlines the comments of the committee in relation to the various regulations to be considered. Other scrutiny committees also publish on their website correspondence with ministers and responses to issues raised, thereby further enhancing the accountability and transparency of issues pertaining to delegated legislation under consideration.

The bipartisan nature of the committee and its role in scrutinising regulations lends itself to open and proper consideration of delegated legislation away from party political debate, which appropriately should occur on the floor of parliament. Nonetheless, the reality is that the committee functions in a very partisan way. This is reflected in a perceived tussle between government and non-government views to the extent that on every occasion there has been any discord within the committee in its deliberations, the chair of the committee has always exercised a casting vote with government members of the committee. This approach runs counter to the scrutiny principle that this committee is directed to uphold.

In order for the Legislative Review Committee to function as a scrutiny committee there are certain changes that require attention. These changes should be discussed within both houses of parliament and this should include but not be limited to:

proper and adequate resourcing of staff allocated to assist in the committee's work;

apportionment of adequate meeting time to enable the committee to undertake its duties by either increasing set meeting times or creating two committees, if required, to be able to adequately undertake the work required of the committee;

moving away from a partisan to a more bipartisan approach in terms of both discussion and decision-making within the committee, which accords with scrutiny principles; and

increasing accountability and transparency in the workings of the committee with the establishment of a delegated legislation monitor and disallowance alert provided to all members of parliament in any given sitting week.

The lack of support given to this committee ultimately undermines its validity and although the committee has clear governance direction there is a difference between the rhetoric and reality in terms of the committee's actions.

At the end of the day, it is up to members' discretion to adhere to the committee's rules. The committee is essential to this parliament operating as efficiently and as democratically as possible and, as such, it should be used and supported appropriately.

The Hon. C. BONAROS (17:39): I rise to speak to the report of the Legislative Review Committee on its Information Guide and echo the sentiments expressed by my colleague the Hon. Irene Pnevmatikos. As we know, delegated lawmaking functions provide a degree of flexibility for the executive. The trade-off for that flexibility is that those laws are not always subject to the same level of scrutiny as legislation, which is open for debate, challenge and amendments. The public and the parliament ought to expect proper scrutiny of all laws, delegated or not, and that is why the work of the Legislative Review Committee is so important.

A recent parliamentary inquiry into the making of delegated legislation in New South Wales considered the submission of Associate Professor Neudorf that delegated legislation in that jurisdiction is the principal form of lawmaking. While South Australian statistics are difficult to come by in the absence of a register of delegated legislation, it is fair to draw the same conclusion here. Indeed, in the absence of a register, the task of working out the numbers is more time consuming but nevertheless possible.

For instance, if you work your way through the government's legislation website you will find that in 2019 50 acts were enacted by the South Australian parliament. In that same time frame, the committee was responsible for inquiring into, considering and reporting to parliament on some 346 instruments. In other words, 87 per cent were delegated instruments. In 2020, 45 of the 514 pieces of legislation enacted were enacted by primary legislation, while 469—that is 91 per cent—were delegated instruments. It is a consistent pattern over a number of years.

This begs several very important questions. First, and most importantly, we should all be asking how this serves us in terms of ensuring appropriate levels of scrutiny and transparency in our lawmaking. Second, it begs the question of how much importance we place on parliamentary oversight. Thirdly, and as my honourable colleague has pointed out, it also begs the question: where are the resources for the committee that considers the bulk of our laws?

If successive governments are going to insist on using delegated instruments as our principal means of lawmaking, then surely the committee whose core function it is to scrutinise that legislation needs to be more adequately resourced to deal with that workload. Right now I can tell you categorically that it is not. Indeed, unless the Legislative Review Committee is to be nothing more than a rubber stamp, more resources need to be made available.

Regardless of an instrument's size—as a recent example, the Uniform Civil Rules 2020 surpassed 1,100 pages—both large and small instruments can present extremely complex matters. In fact, just a few words in the smallest of instruments can present the most complex of issues. Faced with limited time and resources in considering complex instruments, the committee has chosen to publish this Information Guide.

In giving evidence to the Select Committee on the Effectiveness of the Current System of Parliamentary Committees, Dr Sarah Moulds spoke of the time-saving benefits of this type of guide document. She said:

Some of the efficiency gains that we have seen with other delegated legislation review committees is where they are able to spend that time articulating some of the criteria or common things that they look for, turn that into standard or guideline practice that can be passed to departments or ministers or counsel. We see that a lot at the commonwealth level, where there has been a standard way. If you wanted to change a penalty or if you wanted to introduce different reporting powers or delegation responsibilities, 'Here's a way to do it that the committee considers to be best practice,' and that could save everyone's time if that was a consistent, available piece of information for people before it gets to the enactment stage.

The Information Guide aims to improve the quality of information provided to the committee so that the committee can spend less time chasing information from government departments and ministers with its limited resources and more time performing its important scrutiny role. I cannot stress enough how time-consuming this process has been. As a member of that committee, I can tell members that I spend a lot of my time outside the committee chasing down ministers and their staff, alerting them to issues that we know could be easily fixed—and ministers are usually amenable to fixing that if you point it out to them.

That is not something I should be running around doing as a member of that committee, but I am doing it. Often, I will approach a minister and tell him or her about a problem, they will get a staff member from the department onto the issue, they will send a letter to the committee indicating that they are willing to fix it, and we can resolve the issue that way. But that is a practice that we have adopted as a means of getting things fixed, it is not a viable or feasible option in considering every piece of delegated legislation that comes before that committee.

As I said, the guide is intended as a valuable starting point in providing report writers with a better understanding of the sorts of information that the committee requires and to provide a better understanding of the sorts of issues that the committee is likely to see as a concern or attract its attention. The parameters set out in the guide are consistent with the expectations of the public and of the parliament of what the work of the committee should be.

What should those expectations be? The public and indeed the parliament ought to expect delegated legislation is made in accordance with the enabling act under which it is made. The public and the parliament ought to expect delegated legislation is constitutionally valid and that it does not unduly trespass on personal rights and liberties. The public and the parliament ought to expect instruments are clearly drafted and certainly not defective in any way. The public and the parliament ought to expect instruments are accompanied by sufficient explanatory information to give the committee a clear understanding of the instrument itself. Importantly, the public and the parliament ought to expect delegated legislation is not made in a way contrary to the intent of parliament.

We saw in the case of Gayle's Law what can happen when delegated legislation is not made in accordance with the intent of parliament. You will recall the first set of regulations were heavily criticised for creating a loophole permitting remote health workers to attend callouts alone if a risk assessment was completed, contrary to the intent of parliament when passing those laws.

The Information Guide elaborates on the types of issues the committee may consider in meeting the expectations of the public and the parliament, including whether the instrument is made outside the scope of the delegated authority, whether those affected by an instrument have been afforded the opportunity to voice their concerns, or if there are any unintended consequences. These are all really important considerations for committee members. What is most helpful to the committee is understanding the type of consultation, who said it, what was said and how did the minister or a government department respond? It is a useful tool in aiding the committee to shape its investigations accordingly.

One of the main beefs of anyone in opposition or the crossbench is that it is becoming more and more apparent to the Legislative Review Committee that this government is relying overwhelmingly and increasingly on cabinet-in-confidence as a way of circumventing transparency. I do not accept cabinet-in-confidence should be a blanket excuse for a lack of openness and transparency. It cannot impinge on the committee's ability to do its work and deliver what the public and the parliament expects and deserves of it. It compounds the strain on the limited resources of the committee. We spend hours on end trying to get to the bottom of issues that again have this blanket cabinet-in-confidence label put over them.

The Information Guide, as I said, is a starting point. Its aim is to enable the committee to meet its ultimate obligations and expectations. But, of course, as my honourable colleague has pointed out, more can and has to be done. There is certainly room for the work of the committee to evolve further. As Dr Sarah Moulds highlighted previously, there is an opportunity to support a committee like the Legislative Review Committee with the option of utilising a panel of expert advisers, something that we have done informally up until this point. That is also included in the guide.

The committee could then routinely consider independent legal analysis of complex instruments as a support system for their own work. There is a host of experts who are more than willing to provide advice on these issues to the committee. These are the people in the know who operate in these areas every day and they are more than willing to offer advice to the committee if we provided them the ability to do so. The public and the parliament ought to expect this high standard of scrutiny and it would certainly provide additional assurance that instruments are being appropriately examined.

When it comes to legislation, various key stakeholders—the Law Society, for one—already perform this role on an ad hoc basis; in fact, I do not think they can keep up. I think that is a fair analysis. Consultation on delegated legislation by external panels is just one possibility that we could consider more formally. In any event, the question still remains: how do we maintain the integrity of a committee with a government chair? With all due respect to the government chair, who is in this place—and again I say this with all due respect to the current chair and previous chairs; there is one sitting next to her—we cannot put aside our partisan politics.

If you have served on that committee in recent times, you will know that the make-up of the committee, as has been pointed out, does not promote a multipartisan approach to the review and scrutiny of the work of the committee when considering government legislation. As I said in a recently cosigned minority report, it has become common practice for successive chairs of the committee to exercise their casting vote to wave through legislative instruments that clearly do not meet the scrutiny expectations of at least half of the members of that committee.

The lack of appropriate reporting on the work of the committee in this place means that other members are not alerted to these contentious votes. For the rest of you guys, it seems like we are just waving everything through, when in fact everything is being waved through by virtue of the fact that the chair is using their casting vote. This really is a crying shame because if there is one committee in this place that has previously enjoyed a reputation of—

The Hon. T.J. Stephens interjecting:

The Hon. C. BONAROS: —you used it more than once—working collaboratively across political parties it is this one, and it has done so historically—

Members interjecting:

The PRESIDENT: Order! The Hon. Mr Stephens is out of order, and there should not be a conversation across the chamber. The Hon. Ms Bonaros will be heard in silence.

The Hon. C. BONAROS: As I said, if there is one committee in this place that has previously or historically enjoyed a reputation of working collaboratively across political parties it is this one, and it has done so historically because, as we know, there are inherent risks associated with doing otherwise.

There are inherent risks associated when we do not scrutinise legislative instruments appropriately, and they can have far-reaching ramifications and consequences. You need not look further than the previous changes to our retail and commercial leases legislation and the legal saga that created to be convinced otherwise. How do we ensure legitimate avenues of inquiry are pursued when a Chair with a casting vote can shut down issues that clearly warrant further scrutiny? As I said, clearly we need to do more in this space. This guide is intended as a valuable first step.

I think all members of this committee are tired of having the same debate week in, week out about the considerations of technical aspects of bills that really deserve the attention of committee members and should not be waved through miraculously. It is not good lawmaking. We are not, and should not strive to be, a rubber stamp committee. I am genuinely hopeful that we will get to a stage where the committee can work on the technical aspects of the bills in a truly multipartisan approach in accordance with the core functions and objectives of the committee.

With those words, I look forward to the impact that the Information Guide will have in improving the quality, openness and transparency of information provided to the committee. Despite what the government may say about cabinet-in-confidence, I urge them in the strongest possible terms to do away with this practice of not providing details of consultation to members of the committee or to members of this place and to be open and transparent about the consultation processes that are taken on key pieces of legislation, whether they are bills or whether they are regulations, that they would like us to support.

The Hon. N.J. CENTOFANTI (17:54): I would like to acknowledge and thank the Hon. Connie Bonaros and the Hon. Irene Pnevmatikos for their contributions on this important report. I think those of us on the government side would argue that we do look thoroughly at the technical aspects of the bill. In fact, there have been a number of pieces of delegated legislation that have had a number of notices of motion to disallow, and I certainly reject the notion that we simply wave these regulations through.

As I have previously commented, the Legislative Review Committee performs a very important role, particularly because of its work in providing parliamentary oversight of 400 or more instruments each year, delegated by the parliament to the executive branch of the government. This committee aids this house by regularly reporting about its scrutiny of subordinate legislation and other matters to the house so that the house may act, if it chooses, on the matters brought to its attention. The committee also matters because of its work inquiring into and considering acts or bills referred to it by the house of parliament from time to time and its work inquiring into and considering eligible petitions of 10,000 or more signatures.

The Information Guide is a tool for members, ministers and departments to understand what the committee is looking for in order to deliberate on the matters that are brought before it. Providing succinct and informative reports to the committee allows the committee to deliberate in a timely fashion and aids in the smooth passage of regulations through the chamber and the other place.

Motion carried.