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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Parliamentary Committees

Legislative Review Committee: Annual Report 2015

Mr ODENWALDER (Little Para) (11:02): I move:

That the report of the committee, entitled Annual Report 2015, be noted.

I am advised that this annual report is the first annual report of the committee since November 1998.

Ms Bedford: So this is going to be a long one?

Mr ODENWALDER: Yes, that's right. I will try to keep my comments brief. It is the committee's intention that annual reports for every calendar year will now continue to be presented to the parliament. I hasten to add that I am not the Chair of this committee, but the annual report provides information about the committee's inquiries and consideration of regulations referred to the committee in accordance with section 10A of the Subordinate Legislation Act. It also details the committee's inquiries into matters referred to the committee by the parliament.

In 2015, the committee inquired into and considered 259 regulations, 37 rules and 66 by-laws. The committee asked representatives of five Public Service agencies and two advisory bodies to appear before the committee to further assist its inquiries and consideration of 15 regulations. The committee's consideration of regulations tabled in parliament is assisted by delegated authorities providing the committee with supporting reports that set out matters including:

the effect of each provision in the regulation;

details about any consultation undertaken by the regulator before the regulation was made; and

if the minister under which a regulation is made certifies an early commencement of the regulation, the reason or reasons for the early commencement.

The committee expresses its gratitude to delegated authorities for continuing to provide the committee with supporting reports. Without these reports, the committee would not be able to properly inquire into and consider the regulations referred to it.

The report also includes information about the early commencement of regulations, rules and by-laws. In relation to regulations, the report found that 94.6 per cent of regulations tabled in 2015 commenced earlier than the four months provided for under the act. However, the report goes on to detail the range of reasons for this early commencement and these reasons include:

to increase fees and charges for the state budget;

to correct an error, clarify a matter or resolve an inconsistency in a regulation;

to pass on a benefit to those affected by the regulation;

for health and safety reasons; or

to coincide with or support other legislative change.

Importantly, while the number of regulations commencing earlier than the four months provided for in the act is high, further examination generally shows legitimate and acceptable reasons for the vast majority of regulations commencing early.

In relation to the committee's inquiry work, the annual report includes information on three inquiries conducted by the committee in 2015. The committee's inquiry into the Sexual Reassignment Repeal Bill 2014 was referred to the committee on 3 December 2014 and was tabled on 12 April 2016. There was also the committee's review of its report into the partial defence of provocation, which was tabled in both houses on 2 December 2015 in light of the High Court's decision in The Queen v Lindsay, and the review is ongoing. The committee inquired into an amendment to Births, Deaths and Marriages Registration Regulations to enable de facto relationships to be recognised on the register recording the death of a person. This inquiry is ongoing and the committee is currently deliberating.

On behalf of the Chair, Gerry Kandelaars in another place, I want to thank members of the committee: the members for Heysen and Elder; and the Hon. John Darley and the Hon. Andrew McLachlan in another place. I also want to thank the committee staff for their diligence and their forbearance sometimes: Ben Cranwell, the researcher; and Matt Balfour, the committee secretary. I commend the report to the house.

Ms REDMOND (Heysen) (11:05): It is my pleasure to rise to speak briefly on this first report of the Legislative Review Committee to have been tabled since 1998. I was not aware that we had not tabled a report for that long. I have not always been on the committee, but I have spent probably half of my 14 years in this place serving on this committee and it is a committee that I have always enjoyed, at least until now. Things have changed recently.

Mr Knoll: Blaming you, Lee.

Ms REDMOND: No, Lee is not a problem. Like the member for Little Para, I do thank the other members of the committee and particularly Matt Balfour and Benjamin Cranwell, the two officers who serve the committee in the capacity of the secretary to the committee and research officer. They do an enormous amount of work and do make the job of the committee much, much easier. I am sure that we would not get nearly through the work that we actually have to do without the good work of those two officers.

The committee was founded, of course, to keep an eye on the regulations because, under the legislation passed by this parliament, most often when we pass a bill there will be a provision that contains a regulation-making power. One of the main functions of this committee is to ensure that, in the exercise of that regulation-making power, the relevant minister or department is not going beyond its remit and is staying strictly within the confines of what it is allowed to do. For instance, it is inappropriate for a regulation-making power to be used to actually make a substantive change to the law and, on occasions over previous years, attempts to do that have in fact been captured.

As mentioned by the member for Little Para, one of the things that has come to the attention of the committee is that often there is an exercise of a power to start the regulations before they are actually conferred or considered by the committee. There will be a profound lack of explanation as to why early commencement was considered necessary. By rights, what should happen is that a bill becomes an act of parliament and the act authorises the making of a regulation.

That is anticipated by the people who have drafted the legislation and sought whatever change it might be, and they normally have ample opportunity to prepare those regulations. There should not be any reason for the regulation to have to commence before it is considered by the committee. It should be submitted to us in good time but, on a number of occasions—as was pointed out, some 94.6 per cent of the time—the regulations were coming in to us having had a claim of a necessity for early commencement when in fact, in our view, it should not have been necessary.

To give one of the more outrageous examples, generally we know when New Year's Eve is going to be each year, so it does seem a bit odd that it is necessary to apply after the event for permission to hold your fireworks or whatever it might be and get the necessary regulation or by-law in place for the holding of fireworks when you have known all year that New Year's Eve was always going to be on 31 December. The committee has been doing a fair bit of work trying to just tidy those things up.

One of the other functions this committee has is to check all the regulations in which fees that are being charged under regulations are increased. Fundamentally, if the fee increase is just to the nearest dollar, or whatever it might be, an increase of CPI, there is no problem, but if it is going to be a massive fee increase there will be a problem. Indeed, there have been occasions in the past when a fee increase has been absolutely massive, an increase of hundreds of per cent.

I remember once we had a fee increase in relation to the licence for the right to sell cigarettes. When we brought people in to talk about it, it transpired that they were actually trying to stop little corner stores being allowed to sell cigarettes, and that was not something that was allowed to be achieved by simply increasing the fees under the regulations. If you want to stop people selling cigarettes, you actually have to go about it in a different way.

We do a lot of checking to make sure that things are within power and that they make sense, and we often do call people in to give some evidence to the committee as to what it is they are trying to achieve because, quite frankly, the explanation we are receiving is not making sense to us, and sometimes it can be fairly straightforward once we do get them in there. As was indicated, there have been three major inquiries in which this committee has been involved over the past little while; one was into the partial defence of provocation, and I think both the member for Little Para and I spoke on that in this house not too long ago.

Effectively, I am pleased to say that the committee actually undertook what was quite a complex legal issue and took it very seriously, got their head around it, heard from lots of people talking about complex legal arguments, but basically came to what I thought was a fairly sensible decision. However, the effect of a High Court decision meant that that then had to come back for further consideration. Indeed, although the High Court decision then resulted in the matter coming back to the South Australian court, where it was resolved, there is now potentially an appeal and so our final recommendation in relation to that is still in abeyance.

Similarly, the inquiry into the Sexual Reassignment Repeal Bill has been a complex issue, but not in the same way. It is not a legal complexity but, rather, it is trying to deal with what can be very difficult questions and situations for people who are in the throes of dealing with, either for themselves or for family members, issues of sexual reassignment. There has been very clear evidence given, for instance, that people who are seeking sexual reassignment would prefer simply to have the need for that assessed by the medical profession, including by psychiatrists, psychologists and so on, where necessary, but that it should not be necessary to go before a magistrate and beg for the right to have their desire to change gender recognised.

There have been some quite difficult areas that this committee has been grappling with, and not the least of them is the third one: the inquiry into an amendment to the birth, deaths and marriages registration. People would be aware that that came up because of the situation where a newly married gay couple from the UK came on holiday to South Australia and, when one of the partners died here, the other partner could not have his relationship to his partner recognised on the death certificate, and so that led to the instigation of this inquiry, which hopefully will be concluded and reported on to the house fairly soon.

You can see from the range of those things, though, that we have actually been quite busy. Notwithstanding we have not reported since 1998, that is not to say that we have not been busy. This committee meets generally on a Wednesday morning of a sitting week. We consider often quite long agendas, and quite often we will start at 8.30 and not be finished until 11 o'clock, when the house starts sitting, because we are hearing from people giving evidence and considering quite difficult and complex things.

It is I think a report which is worthy of consideration by the house. I do hope that people take it home; I can guarantee it is a guaranteed cure for insomnia. If you take it home and try to read it, you will find that it will put you to sleep. Nevertheless, we do do, I think, a lot of valuable work which I hope saves the other members of the house from having to plough through every regulation themselves because they can rest assured that the fundamentals of our regulation-making process are being taken care of by that committee. We are fairly acute in looking at and making sure that things do pass the tests of what regulations are and are not allowed to do.

Mr ODENWALDER (Little Para) (11:15): I commend the report to the house. Like the member for Heysen, I do really enjoy being on this committee. I have said in this place before in relation to these matters that I am not a lawyer, and I do not apologise for that, but I appreciate spending time looking at quite complex legal issues with lawyers like the member for Heysen and the Hon. Andrew McLachlan in another place. I find it a fruitful exercise. Sometimes particularly Mr McLachlan and I go on a philosophical bent about certain issues, but it is always a pleasure.

The provocation inquiry, of course, was quite complex. Quite complex legal issues were raised and, again, I learnt a lot from a legal perspective. I learnt a lot in fact about how the courts operate. The death certificates inquiry, which we are currently wrapping up, has turned us in all sorts of weird and wonderful directions. It turns out, it seems, that death certificates do not hold much legal weight at all, and essentially we are coming to the conclusion that all they do really is say that an individual has died. So, the recording of any other information is for another purpose other than a legal purpose, so we are just working our way through that. Anyway, I want to thank all the members again, and I commend the report to the house.

Motion carried.

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