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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-12-03 Daily Xml
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SUBORDINATE LEGISLATION (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from14 October 2009. Page 3530.)

The Hon. I.K. HUNTER (17:25): No-one will be surprised to hear me say that the government opposes this bill. The 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; to vary or substitute regulations; and to replace the current tests necessary and appropriate for a certificate of early commencement of the test of exceptional circumstances.

The Subordinate Legislation Act 1978 sets out the processes for the making of regulations and the expiry of regulations. Pursuant to section 10 of the act, a regulation must be laid before each house of parliament within six sitting days after it has been made. Either house of parliament may pass a resolution to disallow the regulation. Regulation 6 is to have effect when disallowed. Section 10AA of the act covers the commencement of the regulations. As a general rule, regulations will come into operation four months after the day they have been made. However, regulations may also come into operation earlier than the four-month period, provided the minister responsible for the administration of the act certifies that it is necessary and appropriate for the regulations to come into operation on an earlier date.

The bill seeks to make a number of amendments to the act. The government is concerned about the consequences and practical implications of these amendments. Clause 3 of the bill does two things. It amends section 10(5a) of the act, so that either house of parliament has the capacity not only to disallow regulations but also to disallow part of a regulation. It also inserts new subsection (6a). So, where a house disallows a regulation in whole or in part, the executive cannot make a regulation of substantially the same effect as the disallowed regulation within six months after the disallowance unless that house resolves to allow the making of the regulation.

There are several concerns about these proposed amendments. First, there are difficulties with either house being able to disallow part of a regulation merely because one provision or certain words may cause concern. Without background information or experience in the practical application of the regulation, the disallowance of one provision or even one or two words could radically change the effect of the regulation or even render provisions of the principal act ineffective. The government may then have to make another regulation to repeal the changed one, which could again be disallowed. This is a catch 22 situation and obviously not a desirable outcome, which leads me to the second part of clause 3.

If a regulation is considered to be of substantially the same effect as a disallowed regulation, it cannot be remade for six months. This could have unforeseen consequences where regulations are required before the principal act can come into force or for the principal act to operate effectively. It is particularly problematic for regulations which are due to expire under the automatic revocation of regulations program. If these regulations are disallowed and cannot be remade for six months, it is likely that there will be an act in operation without supporting regulations.

Further, if the regulation is disallowed because of one offending provision yet the rest of that regulation is appropriate, it would be six months before the regulation could be remade, as any new regulation would be likely to have substantially the same effect as the disallowed regulation. Such an approach is impractical.

The Hon. Mr Lawson has also suggested that, because there is similar legislation in the commonwealth, New South Wales and Tasmania, South Australia should adopt the legislation here. However, I note that there are also jurisdictions that do not have this requirement. Just because some jurisdictions take this approach does not mean that South Australia should automatically do the same. Indeed, I can well recall the Hon. Mr Lawson lecturing this chamber time and time again that, just because other jurisdictions in the country have a similar legislative program, there is no reason South Australia should follow the same line.

Indeed, the commonwealth also has a provision for double dissolutions of the Senate, which South Australia does not have. Yet when we tried to introduce just such a provision, the honourable member opposed it vigorously. So much for his professed desire for matching legislation in this situation. He supports the argument when it suits him and discards it the next day when it does not.

Clause 5 of the bill proposes to amend the test in section 10AA for the use of a certificate of early commencement. At present, a minister must certify that it is necessary and appropriate that a regulation come into operation on an earlier date or at an earlier time. The honourable member proposes to change this so that the minister is required to certify that there are exceptional circumstances that require early commencement. This is because he says that almost every regulation that is made is certified by the relevant minister as requiring early commencement. I do not know whether or not this is actually the case, but I do not see how changing the test to a requirement of exceptional circumstances will have the desired effect.

If a minister believes that early commencement is necessary, why would they not argue that their case is an exceptional circumstance and sign a certificate of early commencement to that effect? You would also have to ask the question: what exactly is an exceptional circumstance for the purposes of early commencement?

Is the fact that the regulations are required before an act can be brought into force, or that certain penalties may not apply if regulations are disallowed enough to be considered exceptional circumstances? I can foresee difficulties where the Legislative Review Committee's idea of what constitutes an exceptional circumstance is markedly different from the view of the minister, who has responsibility for the regulation. Administratively there are already a number of requirements about what information should be included in the report to the Legislative Review Committee. These requirements to ensure ministers provide their reasons for early commencement are sufficient. If a house is not happy with the reasons, it has the choice to disallow.

Finally, clause 6 inserts a new section 10B into the act to give either house the power to vary or substitute regulations. Although the government agrees with the sentiment behind the argument that the ability for a house to make a minor amendment to a regulation could cure defects without resorting to disallowance of the regulation, we cannot support it. The same problems exist with allowing either house to vary or substitute a regulation, as with the amendment allowing disallowance of part of a regulation.

Without proper understanding of the principal act under which the regulation is made, or the policy reasons as to why particular wording was used in the regulation, a small variation to the regulations could markedly change the effect of the regulations and possibly the principal act. Either house feels that, if regulations should be disallowed, the whole regulation should be disallowed and not parts of it. The responsible minister can then amend the regulation to address those concerns and remake it. For these reasons the government opposes the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.D. LAWSON: I make a brief contribution on this clause as the mover of the bill. It was suggested by the Hon. Ian Hunter that I referred to legislation in other states and that we should follow them merely because they had a good idea. My point in referring to the fact that the commonwealth and other jurisdictions have these laws is to indicate that the laws in those jurisdictions have not resulted in the roof falling in in the manner in which the Hon. Ian Hunter suggested it would fall in if we were to adopt these provisions.

The second point I make to illustrate the necessity for this bill is that, during the last sitting week, this council disallowed certain regulations made under the WorkCover Act and the minister arrogantly and without any announcement promptly remade the regulations. He chose not to table them again and proposes, no doubt, to table them in the next parliamentary sitting. He did not want to give us the opportunity to once again disallow the regulations. The government is treating the parliament with contempt, because a measure of this kind is one way to hold the executive accountable.

Clause passed.

Remaining clauses (2 to 7), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. R.D. LAWSON (17:35): I move:

That this bill be now read a third time.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (17:35): Again, in the interests of time, although we strongly disagree with this bill, we will not delay the chamber any longer in dividing on it.

Bill read a third time and passed.

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