Legislation Review Act 1987

The Legislation Review Act 1987 directly regulates three main groups while indirectly touching the broader community.

First, it directly constitutes and binds the members of the Legislation Review Committee. Under s 5(1), the Committee comprises eight members—three appointed by the Legislative Council and five by the Legislative Assembly. Ministers and Parliamentary Secretaries are ineligible (s 5(3)). Membership ceases on dissolution of the Legislative Assembly, acceptance of ministerial office, resignation, or discharge by the relevant House (s 6(1)). The Chair and Deputy Chair are elected by the Committee itself (s 7(1)) and may exercise statutory powers under both this Act and the Parliamentary Evidence Act 1901 (s 7(3)).

Second, the Act affects all members of the NSW Parliament. Every Bill introduced must be forwarded to the Committee (s 8A(1)(a)), and both Houses receive the Committee’s reports (ss 8A(1), 9(1)(c), 10). The Clerks of the Houses are given administrative responsibilities: the Clerk of the Legislative Assembly must convene the first meeting of each new Parliament (s 8(2)), and Clerks must receive and formally table out-of-session reports (s 10(1)–(2)).

Third, the Act affects every person or body empowered to make regulations that are subject to disallowance. This includes the Governor, Ministers, and statutory office-holders. The Committee’s scrutiny under s 9(1)(b) examines whether the regulation-maker complied with the Subordinate Legislation Act 1989 processes, whether the regulation stays within the enabling Act’s objects, and whether it imposes unnecessary burdens on the business community. Public servants and regulatory drafters must therefore anticipate the Committee’s checklist when preparing explanatory statements and regulatory impact statements.

Finally, the Act indirectly affects every resident and business in New South Wales. The Committee’s mandate to protect personal rights and liberties, to insist on defined administrative powers, and to require reviewability of decisions operates as a structural safeguard against executive overreach. Witnesses who appear before the Committee are protected by the confidentiality regime in s 12 and by the interaction with the Defamation Act 2005 defences noted at the end of that section.

The Committee’s key duties are spelled out in ss 8A and 9. It must consider every Bill and form a view on the five criteria in s 8A(1)(b). For regulations it must actively consider, while they are disallowable, whether any of the eight grounds in s 9(1)(b) warrant drawing Parliament’s special attention. Where it forms the opinion that disallowance is warranted it must report that opinion and the grounds (s 9(1)(c)). The Committee is also under a standing duty to conduct systematic staged-repeal reviews (s 9(2)(a)) and to respond to ministerial references (s 9(2)(b)).

Members of the Committee have procedural rights and duties under Part 2. The Chair and Deputy Chair exercise deliberative and casting votes (s 8(6)). A quorum of four is required, but the Committee must always sit as a joint committee (s 8(3)). The Committee may sit during prorogation or while a House is sitting (s 8(8)–(9)).

Witnesses and others appearing before the Committee possess rights and are subject to duties under ss 11 and 12. The Committee may compel production of documents and attendance of witnesses (s 11(1)). Evidence is ordinarily taken in public (s 11(2)), but the Committee must take evidence in private where it considers the matter secret or confidential or where a witness so requests (s 12(1)). A witness who requests private evidence gains a veto right over subsequent publication; publication without the witness’s written consent and the Committee’s authority is an offence (s 12(3)). Even where the Committee itself initiates private hearings, unauthorised publication by any person (including a Committee member) is prohibited (s 12(4)).

The Act itself confers no rights on citizens to petition the Committee or to compel a report, but the transparency of the reporting regime (s 10) and the publication safeguards in s 12 indirectly enhance public accountability.

The Act contains only one offence provision. Section 12(3) and (4) make unauthorised disclosure or publication of evidence taken in private punishable by 20 penalty units or imprisonment for three months. Proceedings are summary and must be brought before the Local Court (s 15).

No other sanctions are created. The Committee has no power to disallow regulations itself; it can only recommend disallowance to the Houses (s 9(1)(c)). There is no statutory mechanism to compel a Minister to respond to an adverse report, nor any personal liability for a parliamentarian who votes for a Bill the Committee has criticised. The Act relies on political accountability and the publicity of the Committee’s reports rather than coercive sanctions.

Section 14 reinforces this light-touch approach by validating all acts and proceedings of the Committee despite vacancies or defects in appointment, thereby preventing technical challenges to the validity of its reports or recommendations.

The Legislation Review Act 1987 is deliberately woven into the broader parliamentary and subordinate-legislation framework.

Its review criteria for regulations expressly incorporate the Subordinate Legislation Act 1989. Section 9(1)(b)(viii) authorises the Committee to draw attention to any failure to comply with ss 4, 5 and 6 of that Act or with the guidelines in Schedules 1 and 2. In practice, the Committee’s reports frequently cite inadequate regulatory impact statements or omitted consultation.

The Act deems the Committee to be a joint committee “for the purposes of the Parliamentary Evidence Act 1901 and the Parliamentary Papers (Supplementary Provisions) Act 1975 and for any other purposes” (s 13). This triggers the evidence-gathering and privilege rules of those statutes. Section 11(1) (power to send for persons, papers and records) is therefore an exercise of statutory power under the Parliamentary Evidence Act 1901.

Section 12(7) and (8) expressly displace and then re-engage the Parliamentary Papers (Supplementary Provisions) Act 1975. Private evidence may be published only in accordance with the Act’s own regime, but once lawfully published the evidence attracts the qualified privilege defences in ss 28 and 29 of the Defamation Act 2005 (as modified by Schedules 2 and 3 to that Act). The note at the end of s 12 is unusually prescriptive in directing readers to the exact clauses that preserve those defences.

The 2002 amending Act (Legislation Review Amendment Act 2002) is preserved in the savings provision in s 17, which ensures continuity of the Committee’s identity, functions performed, and references in other legislation.

Finally, the Act sits alongside the Interpretation Act 1987 (definitions of “Bill” and “regulation” in s 3 mirror usage in that Act) and the common-law principles of parliamentary privilege. Because the Committee’s reports are “deemed to have been laid before the House” (s 10(2)(a)), they attract absolute privilege.

The text reflects the consolidation after the Legislation Review Amendment Act 2002 (No 77). That Act inserted s 8A (Bill scrutiny), renamed the Committee, expanded the definition of “regulation”, and introduced the transitional provisions now found in s 17. The stated reason, evident from the new criteria in s 8A(1)(b), was to give Parliament an early-warning mechanism against legislation that might unduly trespass on rights and liberties or delegate legislative power without adequate safeguards—functions previously performed only reactively through disallowance or post-enactment review.

Subsequent amendments were largely technical. The Statute Law (Miscellaneous Provisions) Act (No 2) 2005 (No 77) updated cross-references to the Defamation Act 2005 and adjusted terminology. The Miscellaneous Acts (Local Court) Amendment Act 2007 (No 94) substituted “Local Court” for “Magistrates Court” in s 15. The Subordinate Legislation Act 1989 itself was inserted into s 9 by the 1989 amending Act, which explains the detailed references to its procedural requirements.

The 2002 expansion was the substantive shift. It moved the Committee from a pure subordinate-legislation watchdog to a body performing quasi-human-rights scrutiny of all primary legislation. The criteria in s 8A(1)(b)(i)–(v) mirror language found in several Australian scrutiny-of-legislation committee mandates and reflect growing parliamentary concern in the late 1990s and early 2000s about executive overreach through Henry VIII clauses, strict liability offences, and ouster provisions.

The Act itself contains no reported judicial consideration of its provisions; the source text is silent on any specific court decisions. This is unsurprising. The Committee’s reports are parliamentary proceedings and therefore protected by absolute privilege. Challenges would most likely arise indirectly—either as attempts to restrain the Committee from publishing (almost certainly doomed under Article 9 of the Bill of Rights 1689 as adopted in New South Wales) or in defamation proceedings where the s 12 publication safeguards and the Defamation Act 2005 defences noted in the section are engaged.

Controversies have instead played out politically. The Committee has on occasion reported that a Bill contains provisions that “trespass unduly on personal rights and liberties” (the exact language of s 8A(1)(b)(i)), only for the Government to proceed regardless, citing the explicit statement in s 8A(2) that passage is not precluded. Critics argue that the Committee’s lack of enforcement teeth renders it symbolic. Supporters point to the “chilling” or “dialogue” effect: ministers and drafters now routinely amend Bills to avoid adverse comments, particularly on retrospectivity, strict liability, or broad regulation-making powers.

Another recurring controversy concerns the boundary drawn in s 9(3). The Committee is forbidden from examining “a matter of Government policy” except where necessary to test whether regulations implement that policy or where a Minister refers the matter. This has led to occasional disputes about whether a particular criticism crosses the line into merits review. The text gives the Committee no guidance on how to draw that line, leaving it to the Chair’s ruling and the Committee’s collective judgment.

The confidentiality offence in s 12 has never been prosecuted on the face of the Act, but the mere existence of a custodial penalty for unauthorised disclosure of in-camera evidence underscores the tension between open parliamentary scrutiny and the protection of sensitive commercial or security information.

Most practitioners assume the Committee only reviews regulations. The insertion of s 8A in 2002 means it now scrutinises every Bill, yet many policy officers and even some parliamentary counsel still treat the Committee as a “subordinate legislation” body only. An adverse s 8A report can generate political embarrassment even if the Bill passes unchanged.

The “unduly” qualifier in both s 8A(1)(b)(i) and s 9(1)(b)(i) is deliberately vague. There is no statutory definition, and the Committee’s interpretation has varied with its composition. A provision that one Committee regards as a normal administrative power may be flagged by another as “insufficiently defined”. Drafters cannot reliably predict the outcome.

Section 9(1A) is a sleeper provision. Even after the disallowance period has expired, the Committee may resolve to review and report. This allows retrospective scrutiny of regulations that slipped through during a busy sitting period, catching agencies that assumed finality once the disallowance window closed.

The quorum rule in s 8(3) is deceptively simple: four members constitute a quorum “but the Committee shall meet as a joint committee at all times”. This has been interpreted to mean that the four must include members from both Houses; a meeting attended only by Legislative Assembly members would be invalid even if more than four were present.

Finally, the interaction with the Defamation Act 2005 is more powerful than many realise. The note to s 12 makes clear that both the public-document defence (s 28) and the fair-report-of-proceedings defence (s 29) are available only if the private evidence has been lawfully disclosed under the Committee’s own regime. A leak that bypasses s 12(5) authorisation leaves the publisher exposed.

For legislative drafters and policy officers the compliance strategy is proactive anticipation of the s 8A and s 9 checklists.

When drafting a Bill, include a “Legislation Review Committee checklist” in the briefing paper. Address each of the five grounds: justify any retrospectivity, strict liability, reversal of onus, Henry VIII clauses, or ouster of judicial review. Provide the Committee with a clause-by-clause note explaining why the provision does not “unduly” trespass on rights. Many recent Bills now contain explanatory notes that explicitly reference the Committee’s criteria; this is not required by the Act but has become best practice to shorten the Committee’s inquiry time.

For regulations, the Subordinate Legislation Act 1989 processes must be completed before gazettal. The Committee will examine the regulatory impact statement for compliance with Schedule 1 guidelines. A common failure is inadequate analysis of “alternative and more effective means” (s 9(1)(b)(v)). Officers should document why non-regulatory options were rejected.

Ministers referring matters under s 9(2)(b) should frame the reference narrowly to avoid straying into the s 9(3) policy-prohibition zone. The Committee itself complies by maintaining detailed meeting minutes that record resolutions to review regulations post-disallowance (s 9(1A)) and by routing all private evidence through the Chair’s written authorisation under s 12(5).

Committee members must observe the voting and quorum rules in s 8. The Chair must be alert to the casting-vote provision; in a four-member meeting an equality of votes is resolved by the presiding member’s second vote.

Witnesses summoned under s 11 should consider requesting private hearings at the earliest opportunity if commercially sensitive material is involved. Once that request is made, the witness retains a veto over publication unless they later consent in writing.

Finally, all parties should monitor the Committee’s website for its “Legislation Review Digest” publications. Early identification of an adverse draft report allows time to supply additional explanatory material before the Committee finalises its opinion. In practice, this iterative dialogue is the real compliance mechanism the Act envisages.