Legislative Council Regulation Committee - Report of the inquiry into the Making of Delegated Legislation in New South Wales

26/10/2020

The NSW Legislative Council’s Regulation Committee last week handed down the Report of its Inquiry into the Making of Delegated Legislation in New South Wales.

The Committee’s Report and recommendations reflect several of the concerns and recommendations made by the New South Wales Bar Association in its oral and written submissions to the Inquiry.

The Committee’s recommendations include:

a. That NSW Government agencies give priority to identifying more effective ways of communicating legislative instruments to the public, particularly instruments which impact on personal rights and liberties, and facilitating ready access to all such instruments by the public;

b. That the Attorney General consider referring to the NSW Law Reform Commission the following terms of reference:

1. Pursuant to section 10 of the Law Reform Commission Act 1967, the NSW Law Reform Commission is to review and report on:

(a) the extent and use of delegated legislative powers in New South Wales

(b) powers and safeguards relating to delegated legislation in other jurisdictions

(c) suggestions for improvements in the use of delegated legislative powers to prevent executive overreach.

2. In particular, the Commission is to consider:

(a) the merits of extending statutory provisions regarding disallowance and committee scrutiny to all instruments of a legislative character including quasi-legislation

(b) the adequacy of current requirements for consultation in the development of delegated legislation

(c) the need to ensure that all forms of delegated legislation can be easily accessed by the public as soon as they commence

(d) the need for additional safeguards in relation to the use of Henry VIII provisions, shell legislation and quasi legislation

(e) the merits of consolidating into a single statute the Subordinate Legislation Act 1989, the Legislation Review Act 1987 and the relevant provisions of the Interpretation Act 1987

(f) the merits of adopting a comprehensive statutory framework for primary and secondary legislation similar to the Legislative Standards Act 1992 (Qld)

(g) the merits of extending the time limits for the disallowance of delegated legislation

(h) the merits of extending the 4-month time limit on remaking a disallowed statutory rule

(i) any other matters the Commission considers relevant.

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