Information Guide: Legislative Review Committee

Thank you, Mr. President. The Legislative Review Committee has considered its functions under Section 12 of the Parliamentary Committees Act 1991, and has resolved to adopt an Information Guide to set out how the Committee carries out its functions. Including, for the benefit of Members of Parliament, those involved with the making of instruments referred to the Committee, and the general public.

Part 1 of the Information Guide sets out some preliminary matters, including the Committee’s functions and the general purpose of the Information Guide. Section 1.7 of the Information Guide provides a broad overview of the work of the Committee, by answering such questions as: ‘What Members of the Committee do’, ‘Why the Committee matters’, and ‘How does the work of the Committee aid Parliament’. The Committee matters particularly because of its work in providing Parliamentary oversight of 400 or more instruments each year delegated by the Parliament to the Executive Branch of government. The Committee also matters because of its work inquiring into, and considering, acts or bills referred to it by a House of Parliament from time to time, and its work inquiring into, and considering, eligible petitions of 10,000 or more
signatures. Mr. President, the Committee aids this House by regularly reporting about its scrutiny of subordinate legislation, and other matters, to the House, so that the House may act if it so chooses on the matters brought to its attention.

Part 2 of the Information Guide provides information about Committee meetings, including the procedure that generally applies to persons attending before the Committee to give evidence on a matter of interest to the Committee.

Part 3 of the Information Guide provides information about how the Committee inquires into, and considers, instruments tabled into the Parliament and referred to the Committee. As with other similar scrutiny committees in Australia the Committee has adopted scrutiny principles to guard its inquiry into, and consideration of instruments referred to it. The scrutiny principle set out in Section 3.2 of the Information Guide closely match the scrutiny principles adopted for the Senate Standing Committee for the Scrutiny of Delegated Legislation. That committee’s approach was itself informed by the former Senate Standing Committee on Regulations and Ordinances inquiry into the parliamentary scrutiny of delegated legislation, which drew on expert advice and international best practice. The Senate Committee’s inquiry report was tabled in the Senate on 3rd of June 2019, and the revised scrutiny principles which are set out in the Senate Standing Orders 23 came into effect on 4th of December 2019. The Committee’s scrutiny principles put Executive Agencies and others on notice of the kinds of matters that are likely to draw the attention of the Committee.

The scrutiny principles of the Committee include: whether an instrument referred to the Committee is in accordance with its enabling act, makes rights, liberties, obligations, or interests unduly dependent on insufficiently defined administrative powers, has defective or unclear drafting, trespasses unduly on personal rights and liberties, or contains matters more appropriate for parliamentary enactment. The Committee takes a non-partisan technical approach to its inquiry into, and consideration, of instruments referred to it, which is one of the reasons why the Committee has strong support from all sides of politics to perform its role. The Legislative Review Committee’s inquiry into, and consideration of instruments, has generally relied on the Executive or others responsible, for an instrument providing to the Committee a report accompanying any instrument referred to the Committee. In the absence of such reports, the Committee would be left to undertake its own inquiry into, and consideration of instruments before the expiry of 14 sitting days after an instrument is tabled into the Parliament.

While there is scope for the Committee’s representative in the House to give notice of a motion to disallow an instrument, in order for the Committee to continue its inquiry into, and consideration of an instrument beyond 14 sitting days, the Committee generally seeks to conclude its work within the 14 sitting days. To clarify the Committee’s position on the content of reports to the Committee, Part 4 of the Information Guide sets out the information that would assist the Committee to properly inquire into, and consider instruments referred to it. The Committee has spent considerable time weighing up the information that the Committee would like to see in these reports. Of principal concern to the Committee, is that it receives information that enables the Committee to properly fulfill its obligations to the Parliament. If the Committee receives inadequate reports, it may unnecessarily take up the Committee’s time, and potentially impact on the work of the Parliament, in the form of more Notices of Motion to Disallow instruments in the Parliament. Section 4.1 of the Information Guide sets out the general information that would assist the Committee, including the purpose of the instrument, the legislative context within which the instrument was made, and its financial impact. Section 4.2 asks for a brief explanation of the effect of each provision of an instrument
referred to the Committee. However, in order to reduce the potential administrative burden on the Executive, or others writing reports to the Committee, the Committee have allowed for an explanation that groups together provisions that have the same or similar effect. Section 4.3 of the Information Guide asks for the reasons for the early commencement of an instrument, if a Minister certifies an early commencement under Section 10AA (2) of the Subordinate Legislation Act 1978. The obligation in the Information Guide is no more than the statutory obligation in Section 10A (1a) of that act, for each Minister to cause a report, setting out the reasons for the issue of an early commencement certificate to be given to the Committee as soon as practicable, after the making of an instrument referred to the Committee. Section 4.4 of the Information Guide asks for information about consultation to be included in the report to the Committee. Information about consultation gives the Committee an opportunity to hear the views of stakeholders, groups, or individuals likely to be affected by an instrument, and through their views, better understand the effect of the instrument referred to the Committee.

The inclusion of information about consultation and reports to the Committee is not new. On 3rd of June 1998, the Hon. Angus Redford MLC tabled in the Legislative Council a report on the Committee’s examination of regulations. On consultation, the Hon. Angus Redford MLC stated the following:

‘Particular attention is paid by the Committee to the processes of consultation undertaken by agencies in the formation of regulations. The Committee considers that it is not adequate for the authors of the report to merely advise that consultation has taken place. It requires further information, including the way the consultation was carried out, the results of the consultation, the issues raised, and a brief explanation of any changes to the legislation because of the consultation. It is the aim of the Committee to ensure that where practicable, parties affected by proposed regulations are consulted and given an opportunity to voice their concerns. The Committee should be aware of those concerns, and any objections at the time when it first considers the regulations.’

In reviewing the information that the Committee seeks about consultation in reports to the Committee, for the purposes of the Information Guide, the Committee has made some minor changes to the information about consultation announced by the Hon. Angus Redford MLC in 1998. First, the Committee has recognised that there are certain circumstances in which information about consultation is not needed —that is where the purpose of an instrument is to only increase fees in accordance with a particular year’s State Budget Indexation Rate, or where an instrument amends another instrument with no substantive effect. Second, the Committee would like to see any concerns that individuals or stakeholders may raise about an instrument to be set out in a table, to make it easier for the Committee to review these concerns at a meeting of the Committee. For the Committee to properly balance any concerns raised about an instrument, the Committee also asks that the report identify the extent of support for an instrument, and the reasons given for supporting an instrument.

Section 4.5 of the Information Guide asks for information about fees or charges to be included in the report to the Committee. Again, the inclusion of information about fees in the reports of the Committee is not new. In the same report to Parliament, the Hon. Angus Redford MLC stated the following about fees:

‘The Committee checks regulations to ascertain the amount of the fee increase. Where increases are above CPI, it expects the report to advise on why such an increase was necessary. It is not acceptable for agencies to advise that increases have been made without indicating the amount of that increase. In circumstances where new fees have been introduced to replace existing fees, it is confusing for the Committee to determine which fees apply where. In these instances, it is appropriate for the report to be quite explicit in indicating the differences between previous fees and those proposed.’

Similar to the Committee’s approach to reviewing information about consultation with the purposes of the Information Guide, the Committee has made some minor changes to the information about fees announced by the Hon. Angus Redford MLC in 1998. First, if an instrument only increases fees or charges in accordance with the particular State Budget Indexation Rate, the Committee would generally deem such increases as appropriate, and the Committee would only need a statement in the report to say that all fees and charges in the instrument have been increased by the State Budget Indexation Rate for the particular year. Second, if certain fees or charges have increased by more than a particular year’s State Budget Indexation Rate, the Committee would appreciate explicit reporting of such fee or charge increases in the table set out in section 4.5 of the report. Part 5 of the Information Guide sets out the general processes that the Committee adopts, for enquiries referred to the Committee, under Section 16 (1) of the Parliamentary Committees Act 1991, including publishing a notice of each inquiry in a major South Australian newspaper. Part 6 of the Information Guide addresses eligible petitions referred to the Committee under Section 16B of the Parliamentary Committees Act 1991, and notes that the Committee’s processes for eligible petitions may depend on the matter or matters raised by the petition. However, as a starting point, the Committee would expect that its processes would align closely with its processes in relation to an inquiry, referred to the Committee under Section 16 (1) of the Parliamentary Committees Act 1991. Part 7 of the Information Guide advises that the Committee’s Information Guide was authorised by resolution of the Committee on 30th of June 2020. I commend the Legislative Review Committee’s Information Guide to the House.