Page 331 - Week 02 - Tuesday, 14 February 2017
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It is an unusual situation in that the subordinate law is made by the passage and commencement of the Discrimination Amendment Act and by the fact that new paragraph 124(3)(c) inserted into the Discrimination Act by the Discrimination Amendment Act has the effect of removing the subordinate law from the subordinate law scrutiny remit of the committee, as it removes the requirement to present the subordinate law contained in the schedule to the Legislative Assembly. This is because the committee’s subordinate law remit is in relation to “any instrument of a legislative nature made under an act which is subject to disallowance and/or disapproval by the Assembly (including a regulation, rule or by-law)”.
The situation is complicated by the fact that the Legislative Assembly’s power to disallow a subordinate law or a disallowable instrument, set out in section 65 of the Legislation Act 2001, is premised on an instrument having been presented to the Legislative Assembly. If there is no requirement to present this subordinate law to the Legislative Assembly, there can be no power to disallow. This is most unusual. No justification is provided in the explanatory statement to the Discrimination Amendment Act for this unusual approach.
While the exercise of “making” a regulation by principal legislation, of course, arguably enhances legislative scrutiny, in the sense that it effectively receives the same level of scrutiny as a piece of primary legislation, the committee is interested to know the reason why that approach was taken in this instance.
In this scrutiny report the committee has drawn this issue to the attention of the Legislative Assembly. The committee has also sought the minister’s advice as to why the unusual “making” procedure was adopted for this subordinate law. The report was circulated to members while the Assembly was not sitting.
I would like to add that the committee met this week, outside its normal meeting times, in order to discuss matters being raised this week in the Assembly which have had to be considered by the committee in an extremely short time frame. The committee also discussed bills that come to the Assembly without going through the scrutiny committee. In relation to this week’s bill, the Assembly will be asked to allow it to be tabled and voted on within this week.
I will recap for the Assembly, at the beginning of this term, the role of the scrutiny committee, taken from the Legislative Assembly website. The committee examines all bills and subordinate legislation presented to the Assembly. These traditions have been adopted, without exception, by all scrutiny committees in Australia. Non-partisan, non-policy scrutiny allows the committee to help the Assembly pass into law acts and subordinate legislation which comply with the ideals set out in its terms of reference, which in this place includes the Human Rights Act and other general rights that we have always paid attention to.
On the matter of last-minute tabling of amendments, as well as, essentially, bills, Mr Ramsay has written to the scrutiny committee advising that he intends to move amendments to the Statute Law Amendment Bill 2016 and the Justice and Community Safety Legislation Amendment Bill 2016 (No 3). SO 182A requires the
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