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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-14 Daily Xml
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SUBORDINATE LEGISLATION (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

The Hon. R.D. LAWSON (16:54): Obtained leave and introduced a bill for an act to amend the Subordinate Legislation Act 1978. Read a first time.

Second Reading

The Hon. R.D. LAWSON (16:54): I move:

That this bill be now read a second time.

As members would be aware, the Subordinate Legislation Act provides that all regulations must be gazetted and then tabled in both houses of parliament within six sitting days after having been made. After those regulations are tabled, either house can, by simple resolution, disallow any regulation within 14 days after its tabling. These provisions have been around for a long time, and the Legislative Review Committee is charged with the responsibility for examining all regulations that come forward.

Prior to the Legislative Review Committee, the Joint Committee on Subordinate Legislation was established in this parliament and fulfilled its functions with distinction. However, there are a number of weaknesses in the current system for scrutiny of regulations. Before I address those weaknesses, I should mention that it is extremely important that parliament does have the capacity to scrutinise regulations and, where appropriate, to disallow them.

Many pieces of legislation allow the making of regulations by executive government and many regulations contain provisions that affect the life and liberty of citizens, regulate conduct, create offences and form an important part of the fabric of our laws. It is just as important that parliament scrutinise those regulations as is its power to debate, scrutinise, amend and maybe even refuse to pass legislation proposed either by the executive government or by any member.

The four weaknesses in the current system are as follows. First, if either house of parliament does disallow a regulation, the executive can make the same regulation, or a regulation in substantially the same terms, on the day following disallowance. There have been occasions in the past where this has occurred—and occurred not once but several times—and that is clearly a weakness in the current system. The process of making a regulation, then having it disallowed, then making another regulation, and then once again either house disallowing it creates great uncertainty in the community. It is easy for us in this place to make laws and to change them, but we must always bear in mind that there are people out in the community who are obliged to comply with these laws and, if there is uncertainty about the existence of a provision, it does create cost and unnecessary uncertainty.

The second weakness of the current regime is that either house has power only to disallow the whole of a regulation. Of course, that means that the regulation, which might contain many provisions, might have only one small provision or part of a provision which is offensive, yet parliament does not have the capacity under the current legislation to disallow only the offensive part. Of course, a canny executive, knowing of the incapacity of parliament to disallow only the whole, can not only put into regulations provisions which will be popular and widely applauded and supported throughout the community but also add a little poison pill, knowing that it is not possible for parliament to extract the poison pill without repealing all those provisions which are electorally popular. So, the second weakness is that parliament does not have the capacity to disallow part of a regulation.

Yet another weakness is that either house of the parliament does not have power to amend regulations. Very often, it will be appropriate perhaps for a minor amendment to be made which would cure defects identified during the parliamentary process, and I believe it would be appropriate to grant to parliament that power.

Finally, we have a provision (section 10AA) in the Subordinate Legislation Act. It provides that regulations will commence four months after they are made but that early commencement can be allowed where the minister certifies that the early commencement is 'necessary and appropriate'. The premise for introducing that provision (which came, I think, in 1992, as a result of amendments proposed by Martyn Evans, the then Independent Labor member) was to overcome the difficulty that occurs when a regulation is made. It is tabled in parliament after a certain number of sitting days, and further time can expire whilst parliament has the capacity to disallow. This whole process might take three months. Mr Martyn Evans was of the view that, in order to remove the uncertainty that exists about whether or not a regulation will actually come into force or might be disallowed, it should not start until four months. So, accordingly, he moved this provision, section 10AA.

What has happened over the years is that almost every regulation that is made is certified by the relevant minister such that early commencement is necessary and appropriate. This has been happening under ministers of all persuasions. The Legislative Review Committee, in its annual reports, regularly complains of the fact that section 10AA is used almost invariably and that it really provides no protection at all.

Of course, the difficulty is that, once a regulation comes into force immediately, forms are changed, people make payments pursuant to a new regulation, they alter their business systems pursuant to the new regulation and then, a couple of months later, parliament is faced with the prospect of allowing or disallowing the regulation. The tendency is always to allow the regulation because to disallow it would create uncertainty and confusion in businesses.

So, section 10AA has not achieved the purpose which Mr Evans intended. These certificates, under section 10AA, are being misused. There are really two options about section 10AA: one is to repeal it altogether as an experiment which has failed; the second option is to amend the section to make it more effective. What is proposed in the bill that I am introducing today is that a minister is required not merely to certify that it is necessary and appropriate (which is a pretty low threshold) but to actually certify that there are exceptional circumstances which require early commencement. The exceptional circumstances must be stated in the report to the Legislative Review Committee. That will replace the current test of 'necessary and appropriate' which is all too easy to circumvent.

I return now to the solutions to the three defects that I first identified. The first is the present capacity of the executive to reintroduce regulations immediately after they are disallowed. In the commonwealth, Tasmanian and New South Wales parliaments there is legislation which provides that the government may not reintroduce a regulation to the same or substantially the same effect for a period of six months, except where the disallowing house resolves to approve reintroduction.

For the record, I refer to the Legislative Instruments Act 2003 of the commonwealth parliament, section 48; the Tasmanian Acts Interpretation Act, section 47(7); and the New South Wales Subordinate Legislation Act, section 8. Those solutions are sensible. They work in those states and they have not caused the subordinate legislation systems, either in the commonwealth or in the particular states, to not operate satisfactorily. Accordingly, I am proposing a similar provision in South Australia.

The second problem of parliament not having the power to disallow part of a regulation is to give parliament exactly that power. That exists in the commonwealth arena in section 42 of the Legislative Instruments Act 2003, and also in section 42 of the Interpretation Act in Western Australia. I have given the chamber a wrong reference to the Interpretation Act of Western Australia—I will be coming to that in a moment. I should have said section 47(4) of the Tasmanian Acts Interpretation Act. In those states, parliament has the power to disallow part of the regulation, and that is what we should adopt here.

Thirdly, the problem is that neither house presently has the power to amend regulations. In Western Australia, under section 42 of the interpretation act of that state, parliament does have power to amend regulations which are disallowed wholly or in part and, accordingly, I am suggesting that that provision be adopted here. As I mentioned earlier, the final matter of section 10AA can be improved by changing the threshold test to exceptional circumstances. We have not altered our subordinate legislation system for many years. It is appropriate that we look elsewhere to see how systems work in a better way, and I believe that this bill will result in a better system. I look forward to members' contributions and to their support for this measure.

Debate adjourned on motion of Hon. J.M. Gazzola.

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