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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-02-15 Daily Xml
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STATE SOVEREIGNTY

The Hon. S.G. WADE (16:18): I move:

That the Legislative Review Committee inquire into and report on processes for consideration by the parliament of schemes of inter-jurisdictional legislation and that a message be sent to the House of Assembly requesting its concurrence thereto.

In the first two years of this parliament there have been several pieces of legislation that have raised the issue of schemes for inter-jurisdictional legislation, a legislation that we often refer to as national law. In particular, I doubt if members need reminding of the Health Practitioner Regulation National Law Bill 2010, the Statutes Amendment and Repeal (Australian Consumer Law) Bill 2010, the Occupational Licensing National Law Bill 2011, the Controlled Substances (Therapeutic Goods and Other Matters) Amendment Bill 2011, and a cluster of energy-related bills.

The Legislative Council has increasingly demonstrated its significant scepticism towards such schemes and amended a number of these bills. In response to the activity of the Legislative Council on Wednesday, 9 March 2011, the Minister for Health in another place moved the following motion in government business:

That the Legislative Review Committee—

(a) inquire into and report on an agreed process for all parties and Independent members in the South Australian parliament to follow that will enable issues of sovereignty to be considered by the parties and Independent members where the parliament is considering a bill that seeks to apply the law of another state, territory or the Australian government to South Australia; and

(b) consider a process that enables the parties and Independent members to consider the issue of sovereignty separate to any other debate on a bill, thereby avoiding unnecessary debate on this issue in parliament and instead enabling the debate to focus on the purposes and content of a bill.

There are a range of legislative structures relevant to the issue of uniformity in legislation. As these national laws may not involve all states and territories or the commonwealth, I will use the term 'interjurisdictional legislation'. The government motion focuses on one form of interjurisdictional legislation, that is, legislation which I would call 'applied legislation': one jurisdiction enacts the main piece of legislation, with other jurisdictions passing acts which do not replicate but merely adopt that act and subsequent amendments as their own.

The commonwealth often uses its funding discretions to coerce state governments to commit their parliament to legislation. Other structures of uniform legislation also raise issues of state sovereignty or, more to the point, healthy federalism. I consider that any reference to the Legislative Review Committee should look at processes for the range of schemes for interjurisdictional legislation, not simply applied legislation.

In my view, schemes of interjurisdictional legislation raise a range of issues beyond state sovereignty that should be considered through any discussion of an agreed process. First, interjurisdictional legislation raises the issue of state/federal balance: does the bill involve a significant abdication of state legislative or administrative power or is it primarily an area of commonwealth legislative competence and the state is merely helping the commonwealth provide comprehensive coverage?

Secondly, there are issues related to the balance between the executive and parliamentary wings of our system of government. The issues that arise are such as whether the bill involves an inappropriate involvement in the legislative process by the executive, particularly in subsequent amendments and whether the federal executive/state executive ministerial councils or committees of advisers take an inappropriately controlling role in the process.

In that regard also, we need to consider how regulations are proposed to be considered. Are regulations, for example, to be tabled in each jurisdiction and disallowable by those jurisdictions? Also, we need to consider the conduct of commonwealth and state reviews and whether any reviews are tabled in one or more parliaments.

The third overarching issue, in my view, is the citizen's access to the law. It makes it difficult for citizens to know the law and be sure that they are complying with the law if they find it difficult to access. To open up the South Australian statute book and for it to tell you that it operates with reference to an act in Queensland makes it all the more difficult for citizens to know what the law requires of them.

While the government motion envisaged that the Legislative Review Committee would devise a process, I think it is important that we be frank about what that process might involve and the challenges that it creates. The government, no doubt, is envisaging a process whereby issues in relation to interjurisdictional legislation are considered shortly before a bill is considered by the parliament but, according to minister Hill's motion, quite separately.

In that regard, I would indicate scepticism, but it is actually possible to consider, if you like, the merits or other content of the bill in separation from the appropriate legislative framework. It is often through the debate on the objects and operations of the legislation that it becomes clear whether or not it is something that lends itself to, shall we say, a less directive process.

For example, one of the issues the opposition parties are mindful of when we are considering interjurisdictional legislation is how important is quick consistency. For example, in relation to an electrical wiring regulation, you might want it to be quickly and universally enforced across Australia, with little doubt about its consistency across states. It is through considering legislation like that that this opposition would be more likely to accept a more, if you like, coercive uniform legislation process.

By way of general comment, I think that minister Hill is not being realistic in suggesting that the two processes—the processes of the bill and the processes of the form of national law—can be considered separately. However, it may be appropriate for the parliament to be engaged before the executive makes any commitments to legislate in certain ways. Proposals for legislation and draft agreements could be the subject of notification requirements to parliament, members of parliament or a parliamentary committee, and major work by the bureaucracy may need to be the subject of a motion of the parliament. Too often we have ministers coming back from ministerial councils saying, 'We committed in a ministerial council.' Too often we have ministers going to ministerial councils saying, 'Our bureaucrats have spent years on this. We've got to follow through.'

Parliamentarians across jurisdictions could be engaged through advisory committees which parallel the ministerial councils. After inter-jurisdictional legislation has been developed, it could be considered by a parliamentary committee. I note that the Western Australian Legislative Council has a Standing Committee on Uniform Legislation and Statutes Review which receives references on national law under the standing orders of the Legislative Council. I should stress that none of those options are options that the opposition is advocating. I simply raise them as an indication of the sorts of measures that could be taken to try to address some of the issues that have been raised in relation to uniform or national law.

Minister Hill's motion sought an agreed process. From a parliamentary perspective, I am concerned to ensure that any agreed process does not abrogate from the prerogatives of parliament and of each parliamentarian in the parliament. A parliament cannot abdicate its legislative function where this is conferred by a higher law. State legislative power is not only granted by the state constitution acts but is also derived from section 107 of the Commonwealth Constitution and section 2 of the Australia Act 1986. It cannot be removed by the state parliament. Thus, an attempt to limit legislative power by providing the legislation may only be introduced in the parliament if approved by a specified body or in a certain way is likely to be legally ineffective.

I would be open to a convention or amendments to the standing orders, or amendments to the Parliamentary Committees Act, if referral to a parliamentary committee was to be part of any process. However, I would strongly oppose putting the process in other legislation as such a law could be construed as a law relating to the constitution or the powers or the procedures of the parliament and thereby could be subject to the manner and form requirements of section 6 of the Australia Act.

Effective manner and form provisions change the manner and form in which legislation must be enacted, requiring future parliaments to comply with specific restrictive procedures for enactments to be valid. This can make amendment and repeal more difficult. The increased use of inter-jurisdictional legislation partly reflects the growing sophistication of inter-governmental cooperation within the Australian federation. However, it also reflects the long-term expansion of commonwealth power through judicial decisions and the shift in the fiscal balance between the states and the commonwealth.

The opposition concurs with the government that we need to better handle national law in terms of the relationship between the executive and the parliament. My motion is worded differently from the government's motion, but my understanding is that the goal is the same. I commend the motion to the council.

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

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