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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-02-15 Daily Xml
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SUBORDINATE LEGISLATION (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

The Hon. S.G. WADE (16:05): Obtained leave and introduced a bill for an act to amend the Subordinate Legislation Act 1978. Read a first time.

Second Reading

The Hon. S.G. WADE (16:05): I move:

That this bill be now read a second time.

The Subordinate Legislation Act 1978 regulates the making, printing and publishing of certain subordinate legislation. Subordinate legislation, of course, is legislation made by a body other than this parliament under authority granted to that body often by an act of parliament. Subordinate legislation must be tabled in both houses within six sitting days of being made and can be disallowed by either house within 14 sitting days of tabling.

On 14 October 2009, the Hon. Robert Lawson MLC introduced a private member's bill in this place to address four weaknesses in the current arrangements for subordinate legislation. The problems he identified are as follows. Firstly, if either house of the parliament disallows a regulation, the executive can make the same regulation straight after the disallowance and repeatedly do so. This creates unnecessary uncertainty in the community.

Secondly, either house has only the power to disallow the whole of a regulation. Parliament does not have the power to disallow part of a regulation; therefore, while to deal with a problem in a regulation it may only be necessary to remove one part, the parliament is forced to disallow the whole of the regulation or allow the regulation as a whole to proceed unamended.

Thirdly, either house of the parliament does not have the power to amend regulations. Fourthly, section 10A of the act provides that regulations will commence four months after they are made but the minister can allow early commencement if it is considered necessary and appropriate. Over time, almost all regulations are said to be necessary and appropriate for early commencement.

On 12 May 2010, the Hon. Robert Brokenshire introduced in the Legislative Council a bill identical to what I will call the Lawson bill. This bill—the Subordinate Legislation (Miscellaneous) Amendment Bill 2012, which I have just tabled—is identical to the Lawson bill except in one respect which I will address later. The bill seeks to remedy the problems outlined in the following ways. Firstly, section 10(6a) is to be inserted which provides:

If a regulation is wholly or partly disallowed by resolution of a House of Parliament, no regulation of substantially the same effect as the disallowed motion, or the disallowed part of the regulation, may be made within 6 months after the disallowance unless that House of Parliament resolves to allow the making of the regulation.

If a regulation is made in contravention to that subsection, the regulation would be void. Provisions limiting the re-enactment of subdelegated legislation operate in the commonwealth, New South Wales, Tasmania, Northern Territory and the Australian Capital Territory.

Secondly, a regulation could be wholly or partly disallowed by resolution of either house of parliament and will cease to have effect to the extent of that disallowance according to this bill. The parliaments of New South Wales, Victoria, Western Australia and Tasmania can disallow a piece of subdelegated legislation in whole or in part.

Thirdly, our parliament may vary or substitute regulations under proposed section 10B. Western Australia has a similar provision but does not require the concurrence of the other house. Fourthly, for the regulation to commence in less than four months, the minister would need to certify that:

commencement on the specified date, or at the specified time, is required due to the exceptional circumstances specified in the certificate

The bill deals with that in proposed section 10AA.

The bill does vary from the Lawson bill in one respect. The most innovative element is the third reform of proposed section 10B in allowing either house to amend the regulation without the concurrence of the other house. The bill requires concurrence of both houses. While the concurrence of the other house effectively provides the executive with a veto, the executive has a veto anyway as it has the right to revoke an amended regulation following amendment by a house. As an amended regulation under section 10B is not subject to tabling and disallowance in its own right, there would be a risk that the executive might use such a provision to amend its own regulations in the House of Assembly to subvert parliamentary scrutiny.

I commend the bill to the council and indicate, as always, that I would be delighted to explore the bill and the issues it raises with any honourable member, including members of the government, to make this the best bill that it can be.

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

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