Workload of the Legislative Review Committee

The Legislative Review Committee has considered its functions under section 12 of the Parliamentary Committees Act 1991 and has resolved on its own motion, under section 16(1)(c) of that act, to report to the parliament on the workload of the committee.

Prior to the enactment of the Parliamentary Committees (Petitions) Amendment Act 2019, most of the committee’s time was spent on its functions under section 12(b) of the Parliamentary Committees Act 1991; that is, to inquire into, consider and report on subordinate legislation referred to it by the Subordinate Legislation Act 1978. Section 10(3) of the Subordinate Legislation Act 1978 requires every regulation, except as expressly provided in another act, to be laid before each house of parliament within six sitting days after it has been made.

Every regulation that is required to be laid before parliament is referred to the committee under section 10A(1) of the Subordinate Legislation Act 1978. Under section 4 of the Subordinate Legislation Act 1978 regulation means a regulation, rule or by-law. That said, an act may also deem other types of instruments to be a regulation for the purposes of tabling the instrument in the parliament and referring the instrument to the committee, such as in the case of fee notices.

The practical effect of the above provisions of the Subordinate Legislation Act 1978, together with provisions of other acts that deem other types of instruments to be a regulation, is that the committee is responsible for inquiring into, considering and reporting to parliament on a large body of law made under acts of the parliament. However, in terms of its workload, the number of instruments the committee reviews in any given year is less of a concern for the committee than the complexity of instruments that the committee reviews and the quality of explanatory material that accompanies those instruments.

On 20 March 2019, the member for Florey introduced into the other place a bill for an act to amend the Parliamentary Committees Act 1991. There was some discussion about these proposed changes to the Parliamentary Committees Act, and I would like to quote some of that discussion in this chamber today. According to the member for Florey, the Parliamentary Committees (Petitions) Amendment Bill (the petitions bill) proposed:

‘…modest changes and does two main things: first, in clauses 3 and 4 it expands the functions of the Legislative Review Committee so that the committee is tasked with inquiring into, considering and reporting on eligible petitions referred to it under new section 16B. The mechanism seeks consideration of community issues by referring petitions to a committee for examination.’

To avoid creating a new committee, use of existing committees is the obvious solution. The Legislative Review Committee appears to have capacity, which would avoid further backlogging the Social Development Committee. In the past 20 years, only 19 petitions have reached 10,000 signatures, and none since 2015, so the burden is unlikely to be especially great. Given that petitions are often tabled in order to achieve a change in law or policy, the Legislative Review Committee provides the most appropriate medium.

On 1 May 2019, the Attorney-General indicated government support for the petitions bill. During the second reading debate for the petitions bill, the Attorney-General observed the following:

‘The process that the member has highlighted in this bill is one of referral to the Legislative Review Committee, which is a standing committee. It has a continuing role and a certain charter. From our perspective, in the first instance that is the appropriate referral body. One matter that we may need to consider in the future is the question of whether the parliament or, perhaps more appropriately, the Legislative Review Committee has the power—if it does not have the power now, that is something for us to consider—to delegate or re-refer that matter to another committee.’

Further:

I think we need to keep an open mind as to whether we might need to provide some added power to the Legislative Review Committee to refer the matter to another committee if, in their view, they consider that there could be some more valuable consideration or update provided on advice to us here in parliament and, in due course, any minister can respond in the parliament to be fully briefed and informed.

In response to the Attorney-General’s comments, and in conclusion to the second reading debate in the House of Assembly, Ms Bedford MP stated:

‘…the number of people who have petitioned the parliament in such a way that might require such action is very, very small. Perhaps we will see a flurry of democracy—you never know—but I do not envision that it will place a great strain on the Legislative Review Committee.’

Consequently, on 16 May 2019, the petitions bill was introduced into the Legislative Council, and on 20 June 2019 passed the Legislative Council without amendment. The petitions bill was assented to on 11 July 2019 and came into effect as the Parliamentary Committees (Petitions) Amendment Act 2019 on the same day.

In addition to the committee’s scrutiny function, and its functions in relation to eligible petitions, the committee also inquires into, considers and reports to parliament on any matter concerned with legal, constitutional or parliamentary reform, or with the administration of justice, with the expiry of continuation of acts or subordinate legislation and with intergovernmental relations. The committee is also able to perform other functions that may be imposed on the committee by the Parliamentary Committees Act 1991, any other act or by resolution of both houses.

As I have previously spoken about, there was a sentiment expressed in the parliament that the burden of petitions was unlikely to be especially great, given the threshold of 10,000 signatures. In contrast to that sentiment, the parliament referred three petitions to the committee under section 16B of the Parliamentary Committees Act 1991 within six months. The first petition of 2020 was from the House of Assembly on government retention of motor vehicle registry functions and Service SA branches. The second petition of 2020 was from the Legislative Council on planning reform, and the third petition of 2020 was from the House of Assembly on maintenance of the current composition of the Teachers Registration Board.

With the prospect of the parliament referring more eligible petitions to the committee, the member for Florey perhaps had the foresight that no-one else had when she suggested during the second reading debate on the petitions bill that the parliament could see a flurry of democracy. In addition, petition No. 2 of 2020 on planning reform is a significant petition, containing four related but discrete prayers for inquiry.

In the committee’s recent public call for submissions for petition No. 2 of 2020, planning reform, the committee received 98 written submissions and 16 requests to provide oral evidence. The committee has determined to inquire into, consider and report to parliament on petitions referred to the committee under section 16B of the Parliamentary Committees Act 1991 in the way that parliament would expect. In fact, the committee is currently meeting twice weekly during sitting weeks to hear from witnesses on petitions, and still carry out its function to scrutinise delegated legislation.

However, no other jurisdiction within Australia refers petitions for inquiry to a committee that also has as one of its functions the scrutiny of delegated legislation. In the committee’s view, combining technical legislative scrutiny with inquiry into and consideration of petitions is placing an untenable strain on the committee and its existing two staff members: the committee secretary and research officer. In light of this, a structure that would allow the committee to re-refer petitions to another standing committee of the parliament, as suggested by the Attorney-General during the second reading debate of the petitions bill, should seriously be considered by the parliament without delay.

The committee has made several recommendations within our report. The Legislative Review Committee recommends that the parliament amend the Parliamentary Committees Act 1991 without delay to:

(a) refer eligible petitions to the most relevant committee of the parliament; or

(b) establish a petitions committee under the standing orders of each house or the joint standing orders; or

(c) allow the Legislative Review Committee to rerefer an eligible petition referred to it under section 16B of the Parliamentary Committees Act 1991 to another committee of the parliament established under that act, taking into account the functions of that other committee and the subject matter of the petition.

The Legislative Review Committee also recommends that, if parliament considers it appropriate for the inquiry into eligible petitions function to remain within the Legislative Review Committee, the President of the Legislative Council, as soon as practicable, ensure that the Legislative Review Committee is appropriately resourced to carry out this function.

Mr President, you may also have noted that there is a minority report on the workload of the Legislative Review Committee. There has been some robust discussion in our committee on its workload and its structure. There has also been some recent commentary in this chamber from some members who claim that successive chairs have used their casting vote to push through regulations over a number of years. I have already stood up in this chamber and vehemently rejected this assertion, and will continue to do so.

I have only been the Chair of this committee since being sworn into parliament some 10 months ago. However, I on behalf of the committee have moved a number of notices of motion to disallow on a number of regulations and by-laws. I would also like to remind the council of the role of the Legislative Review Committee, which is of a technical nature, ensuring that executive departments and ministers adhere to its scrutiny principles. The merits of a regulation should remain the concern of the chamber not that of the committee.

Since becoming Chair of the Legislative Review Committee, I have also sought to swiftly progress the committee’s information guide, which I spoke to in this chamber towards the end of last year. This information guide is crucial in providing executive departments with the understanding of what the committee is looking for in order to deliberate on matters that are brought before it.

In closing, I would like to thank our committee secretariat, Mr Matt Balfour and Ms Maureen Affleck, for the formation of this report and for their consistent hard work. I would also like to thank other members of the committee: the Hon. Connie Bonaros and the Hon. Irene Pnevmatikos, as well as members from the other place, the member for Narungga, Mr Fraser Ellis; the member for Ramsay, the Hon. Ms Zoe Bettison; and the member for MacKillop, Mr Nick McBride. With that, I commend the report to the house.