John Williams (NSW, National Party) Share this | Link to this | Hansard source

I present the Delegated Legislation Monitor No. 6 of 2018 of the Standing Committee on Regulations and Ordinances, and move:

That the Senate take note of the report.

I rise to speak briefly to the tabling of the Regulations and Ordinances Committee's Delegated Legislation Monitor No. 6 of 2018.

The committee would like to highlight a particular issue of concern that has recently come to its attention and is discussed in this monitor, and in previous monitors this year.

The issue relates to section 15D of the Legislation Act 2003. This section provides that if an incorrect version of an instrument—that is, not the version signed by the rule-maker—is registered in error on the Federal Register of Legislation, the First Parliamentary Counsel must correct it, essentially replacing it with the version that was signed by the rule-maker.

This can happen even if the changes made are substantial and not just typographical, as there is no restriction on how significant a correction can be made.

The committee understands that incorrect legislative instruments should be fixed quickly. This is especially important because most become law very soon after they are registered.

However, sometimes instruments are corrected under section 15D after they have been tabled in parliament. In these cases, there is no requirement in the Legislation Act that the corrected version of the instrument be re-tabled, nor does parliament have to be advised that the tabled version of the instrument has been changed. As a result, senators and members may not realise that changes have been made. They may therefore lose the opportunity to consider the correct version of the instrument during part or all of its disallowance period.

For this reason, the committee considers that the operation of section 15D has the potential to have a significant adverse impact on parliamentary oversight of legislative instruments.

The committee has written to the Attorney-General about this issue, and he has instructed his department to consider the committee's suggestions when the act is reviewed in 2021.

In the meantime, the committee emphasises that the process of making and registering legislative instruments should be undertaken with sufficient care to ensure that incorrect versions of instruments are not registered in the first place.

The committee has also stated its expectation that where an incorrect instrument has already been tabled, and the correction of it would involve making a substantive change to its text, the rule-maker should consider re-making or amending the instrument rather than using the administrative corrections power.

The committee will continue to actively monitor this issue.

I commend the Delegated Legislation Monitor No. 6 of 2018 to the Senate.

Question agreed to.