Page 721 - Week 03 - Tuesday, 8 March 2016
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I should note at the outset that the committee recognises that the consideration of national scheme type laws has been an issue for committees such as this one and for legislatures for several decades. The formulation of laws that are intended to be passed or promulgated across the various jurisdictions with little or no variation from jurisdiction to jurisdiction challenges the ability of legislative scrutiny committees to apply their scrutiny principles and the ability of legislatures to make amendments because, the argument goes, to make changes would be to destroy the uniformity across jurisdictions that national laws are intended to bring.
However, the two national laws considered by the committee for this scrutiny report raise another issue—the tendency for national laws to be presented without an explanatory statement. The committee has consistently commented on the absence of explanatory statements for any law. While the committee has always accepted that there is no formal, legal requirement that an explanatory statement be provided in relation to subordinate legislation, the committee has always maintained that it is important that an explanatory statement nevertheless be provided. Apart from anything else, principle 2 of the committee’s terms of reference requires it to:
… consider whether any explanatory statement or explanatory memorandum associated with legislation and any regulatory impact statement meets the technical or stylistic standards expected by the committee.
If there is no explanatory statement then, clearly, the committee cannot fulfil this role.
As is often the case in the committee’s experience, the Education and Care Services National Amendment Regulations 2015 are presented to the Legislative Assembly with a tabling statement by the minister but no explanatory statement. In this scrutiny report, the committee has identified, in addition to the explanatory statement issue, a possible retrospectivity issue. The issue is not dealt with in the tabling statement. As a result, the committee requires a response from the minister in relation to the issue. This would not have been necessary if there had been an explanatory statement and if the explanatory statement had, in the light of the committee’s often-stated requirements, addressed the issue of retrospectivity.
As a result of the failure to provide an explanatory statement for this national law, the committee has both drawn the matter to the attention of the Legislative Assembly and requested that the minister provide the Legislative Assembly with an explanatory statement for the national law.
The heavy vehicle national amendment does come with an explanatory statement. The committee has noted this with approval in the scrutiny report. However, it also appears to involve retrospectivity, and the explanatory statement does not address this issue. As a result, the committee is seeking the minister’s response in relation to the retrospectivity issue. This, again, would not have been necessary if, according to the committee’s often-stated requirements on this issue, the retrospectivity issue was addressed in the explanatory statement.
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