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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-11-10 Daily Xml
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LEGISLATIVE REVIEW COMMITTEE: SUBORDINATE LEGISLATION ACT

The Hon. R.P. WORTLEY (12:43): I move:

That the report of the committee, into the Postponement of Regulations from Expiry under the Subordinate Legislation Act 1978, be noted.

The Subordinate Legislation Act provides for all regulations to expire 10 years after they are enacted. This is to ensure that the regulations are reviewed at least every 10 years to update their content and maintain their relevance. Government agencies are responsible for the review of regulations. Section 16A of the act allows the 10-year expiry date to be postponed for a period not exceeding two years at the time and not exceeding four years in aggregate.

Postponement from inquiry was introduced to allow for extra time for the review of regulations. It was only intended to apply to those few cases where there were delays in completing a review. The act does not require an agency to justify or provide reasons if they require a postponement. Regulations that are postponed from expiry under the act are referred to the Legislative Review Committee every year.

Over the past eight years, the number of regulations being postponed from expiry has increased dramatically. In 2002, a total of 48 regulations were postponed. In 2009, this had increased to 100 postponements, with 88 regulations postponed in 2010. Allowing regulations to be repeatedly postponed from expiry is not in keeping with the spirit of the legislation. Postponement was only intended to be used in exceptional circumstances, but it is now used as a matter of course.

The Legislative Review Committee expressed its concern at how many regulations were being postponed from expiry and therefore not reviewed after their 10-year life. Agencies seemed to be postponing expiry as a matter of convenience. The committee, therefore, resolved to inquire into the volume of regulations being postponed. The committee received and heard evidence from the Attorney-General's Office and the Department of the Premier and Cabinet in relation to the role of departments and agencies in reviewing and postponing regulations.

Given that regulations now contain much more detail regarding the functions, powers and rights conferred by legislation, it is even more important that they are reviewed regularly. The committee is of the view that, if they are to be postponed, there needs to be a legitimate reason and they should not be postponed just for the sake of convenience.

The problem of postponing regulations is not restricted to South Australia. Both Victoria and New South Wales have experienced similar difficulties. However, South Australia's legislation has a far more flexible approach to the postponement of regulations when compared to Victoria and New South Wales. Their legislation contains much stricter limits on postponement requirements, and therefore the number of regulations being postponed from expiry is much lower.

The committee found that the number of regulations postponed each year in South Australia is too high. A 10-year life for regulations is a significant amount of time, and it is unsatisfactory that regulations are postponed for up to four years without justification. Agencies' contention that they need more time to administer a review, in the committee's view, is not justifiable. Many of the regulations that are reviewed are significantly rewritten, consolidated and updated to cut red tape and make administration easier. It is in the public interest that regulations are regularly renewed.

In light of the evidence, the committee made three recommendations: firstly, that the regulations be reviewed in a timely manner every 10 years as intended by the act; secondly, that the Subordinate Legislation Act be amended to grant extensions for postponement only in exceptional circumstances, that these exceptional circumstances need to be certified by the relevant minister and certificates of exceptional circumstances need to be provided to the Legislative Review Committee at least one month before the regulation is due to expire; and, thirdly, that guidelines be developed which clearly outline the circumstances in which postponements will be granted and which support the original intention of the act.

These guidelines should make it clear that extensions for postponement should be sought only in exceptional circumstances and not just for administrative convenience. On behalf of the committee, I thank the Department of the Premier and Cabinet, the former attorney-general and staff for briefing the committee on this matter. I acknowledge the contributions of committee members, particularly the committee of the previous parliament that instigated and heard evidence for the inquiry. I also acknowledge the work of the committee's secretary, Ms Leslie Guy, and the committee's research officer, Ms Carren Walker.

Debate adjourned on motion of Hon. T.J. Stephens.

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