Subordinate Legislation Committee Act 1969

The central concept is “regulation”. Section 2 defines it as a regulation, rule or by-law made under an Act and required by law to be laid before both Houses of Parliament, but expressly excludes rules of court made by the judges or a majority of them under an Act. This means the Committee cannot examine court procedural rules; all other delegated legislation laid before Parliament is subject to its scrutiny. The “Committee” is the Parliamentary Standing Committee on Subordinate Legislation, a joint committee of six members: three from the Legislative Council and three from the House of Assembly (s 3(3)). No Minister of the Crown, President of the Legislative Council, or Speaker of the House of Assembly may be appointed or continue as a member (s 3(4)). This insulates the Committee from executive influence and from the presiding officers who might have institutional interests in protecting parliamentary procedures. “Office of profit” is another important concept: s 14 clarifies that membership of the Committee is not an office of profit or emolument under the Constitution Act 1934, so it does not disqualify a member from sitting or voting in either House, nor void their election. The Committee’s functions (s 8) revolve around five “special reference” questions, which are normative standards: vires and general objects, clarity, trespass on personal rights, administrative versus judicial decision-making, and whether a matter should be in primary legislation. These are open-ended and leave substantial discretion to the Committee. The requirement to examine compliance with the Subordinate Legislation Act 1992 (s 8(1)(ab)) ties this Act to a later, more procedural statute that imposes impact analysis and public consultation requirements for many regulations. The “quorum” of four members (s 5(1)) is a high proportion of the six person committee, meaning at least two thirds must be present to transact business. The chairman has a deliberative vote only, and when votes are equal the question passes in the negative (s 5(5)). This default to negative on ties makes it harder for the Committee to reach a positive recommendation to criticise a regulation, possibly reflecting a design intent to require clear consensus before making adverse reports.

The Act directly affects three groups: the committee members themselves; the persons and bodies who make regulations; and witnesses who may be summoned. The six parliamentarians appointed to the Committee acquire duties to examine every tabled regulation and to report to Parliament. Their ability to sit and transact business during adjournment or recess (s 6(1)) means they must remain available even when Parliament is not sitting. The requirement to sit with open doors when taking evidence (s 6(2)) exposes them to public scrutiny. The secretarial support is provided by an officer of one of the Houses appointed by the Governor on joint recommendation of the President and Speaker (s 7). That secretary must obtain copies of all regulations from the Government Printer as soon as they are notified in the Gazette and give one to each member (s 7(4)). This imposes a logistical burden on the Government Printer and the parliamentary administration. The makers of regulations often Ministers, the Governor in Council, or other subordinate authorities are the primary audience of the Committee’s reports. When the Committee issues a report during a parliamentary recess, the regulation making authority must act: amend, rescind, or suspend the regulation (s 9). This creates a direct obligation that goes beyond a mere recommendation. The authority must decide which course to take and implement it forthwith. For witnesses, the Act confers protections (s 11) equivalent to those in a Supreme Court action, and they are entitled to fees and travelling expenses on a scale prescribed under the Public Works Committee Act 1914 (s 12). The public is indirectly affected because the Committee’s function to examine whether a regulation “unduly trespasses on personal rights and liberties” (s 8(1)(a)(iii)) provides a formal avenue for parliamentary oversight of regulatory overreach. Citizens, businesses, and interest groups may bring concerns to the Committee’s attention, though the Act does not create a right to be heard; the Committee may summon witnesses on its own initiative. The exclusion of court rules from the definition of “regulation” means the judiciary and the legal profession are not subject to the same scrutiny for procedural rules, which may affect litigants who are bound by those rules but have no equivalent parliamentary committee watching them.

The Committee’s central duty is to examine every regulation against the five special reference criteria in s 8(1)(a): vires and general objects, need for elucidation, undue trespass on personal rights, undue administrative discretion over rights, and whether matter should be in an Act. Additionally, it must examine compliance with the Subordinate Legislation Act 1992 (s 8(1)(ab)). This is a continuing duty; it applies to regulations made after the Act commenced and any regulation made earlier that the Committee chooses to examine (s 8(2)). The Committee must keep full minutes of its proceedings (s 5(7)) and must record the names of members voting in any division in the minutes and in its reports (s 5(6)). When taking evidence, it must sit with open doors (s 6(2)). The Committee has the right to summon witnesses and require production of documents under the same powers as a Select Committee of the House of Assembly (s 10). It may sit during any adjournment or recess, at any time and place, and conduct proceedings as it thinks proper (s 6(1)). The right to make reports and recommendations to both Houses is a right, not a duty, enabling the Committee to decide which findings warrant formal reporting (s 8(1)(b)). The chairman and vice chairman are elected by the members (s 5(2)); the chairman has a deliberative vote only, and on an equality of votes the question passes in the negative (s 5(5)). This arrangement limits the chairman’s power relative to the group. The regulation making authority, when served with a report during recess, has a duty: it must forthwith amend the regulation as indicated, rescind it, or take action to suspend its operation until both Houses have dealt with the report (s 9). The authority cannot simply ignore the report. Witnesses have the right to the same protection and privileges as a witness in an action tried in the Supreme Court (s 11), which includes the right against self incrimination and the right to legal representation. They also have a right to be paid fees and travelling expenses (s 12). The secretary has a duty to obtain copies of all regulations from the Government Printer as soon as they are published in the Gazette and distribute them to each committee member (s 7(4)). This ensures the Committee has timely access to all subordinate legislation.

The Act does not create any criminal offences or pecuniary penalties. Enforcement is entirely political and procedural. The Committee’s reports are the primary enforcement mechanism; they are tabled in both Houses and may trigger debate, media attention, and political pressure on the regulation making authority. Where Parliament is not sitting, s 9 imposes a mandatory obligation on the authority: on receipt of a Committee report recommending amendment or rescission, the authority must forthwith either amend the regulation as indicated, rescind it, or take action to suspend its operation until both Houses have dealt with the report. This is a legal obligation, but the Act provides no express sanction for non compliance. If the authority does nothing, the Committee could presumably report the failure to Parliament when it resumes, leading to potential censure or legislative action to override the regulation. The Committee could also summon the responsible official or Minister as a witness (s 10) and question them about the delay or refusal to act. The protections for witnesses in s 11 (same as in Supreme Court) mean that a witness who fails to attend after being summoned, or who refuses to answer questions without lawful excuse, could be in contempt of Parliament, which carries its own penal consequences (though those are found in other parliamentary law, not in this Act). The scale for witness expenses (s 12) is incorporated from the Public Works Committee Act 1914, so non payment could be enforced as a debt, though the Act does not specify a mechanism. The secretary’s duty to obtain and distribute regulations (s 7(4)) is administrative; failure could be subject to internal disciplinary processes within the parliamentary service, but again the Act does not spell out penalties. The disqualification provisions in s 3(4) (Minister, President, Speaker cannot be members) are self enforcing: if a member becomes a Minister, their office vacates automatically (by operation of s 4(2) which ties membership to being a member of the relevant House, and s 3(4) which prevents a Minister from continuing as a member). There is no penalty for a disqualified person purporting to act as a member; presumably any acts would be invalid. The overall enforcement regime relies on the conventions and powers of Parliament, not on court enforceable remedies.

The Act expressly references several other South Australian statutes. The most significant is the Subordinate Legislation Act 1992. Section 8(1)(ab) requires the Committee to examine whether the requirements of that Act have been complied with to the extent they apply to a regulation. The Subordinate Legislation Act 1992 imposes procedural obligations on rule makers, such as preparing regulatory impact statements, consulting with affected parties, and ensuring regulations are published. The Committee thus operates as a backstop to ensure these requirements are not ignored. The Acts Interpretation Act 1931 is referenced in s 7(2) which permits the President and Speaker to jointly select an officer to act as secretary despite the general provision in s 21(1) of that Act relating to temporary appointments. This creates a bespoke appointment mechanism for the Committee. The Constitution Act 1934 is engaged by s 14, which declares that membership of the Committee is not an office of profit or emolument, thereby ensuring that members do not vacate their seats or become disqualified under the Constitution Act. The Public Works Committee Act 1914 is used to set the scale of witness fees and travelling expenses (s 12). This cross reference means any changes to the fee scale under that Act automatically apply to this Committee without amendment to this Act. The definition of “regulation” in s 2 excludes “rules of court made by the judges, or by a majority of them, under the authority of an Act.” This means court rules are not subject to the Committee’s scrutiny under this Act, although they may be subject to other scrutiny mechanisms. The Act does not purport to override any other law. It operates alongside the general law of parliamentary privilege and contempt, which governs the Committee’s power to summon witnesses and the protections for those witnesses. The relationship with freedom of information laws is not mentioned; however, the Committee’s reports and minutes are likely public as parliamentary documents, but the Act only explicitly requires open doors when taking evidence (s 6(2)) and minutes (s 5(7)). The Subordinate Legislation Committee Act does not create a right of judicial review, but the courts may review regulations on vires grounds independently of the Committee’s views. The Committee’s opinion on whether a regulation is within power (s 8(1)(a)(i)) is not binding on a court.

The Act has been amended three times by provisions noted in the source. The first amendment was by No. 27 of 1973, which repealed section 13 entirely. The text does not reveal the content of the original section 13; the repeal removed whatever that provision was. The second amendment was by No. 30 of 1992, section 15, which amended s 8(1) to add the current paragraph (ab) requiring the Committee to examine compliance with the Subordinate Legislation Act 1992. This amendment connected the two Acts and considerably expanded the Committee’s function. It also inserted the “amended by” notation in the heading of s 8(1). The third amendment was by No. 38 of 1999, section 5, which amended s 3(4) to add the President of the Legislative Council and the Speaker of the House of Assembly as persons disqualified from appointment or continued membership, and to repeal former paragraph (d) which apparently contained a further disqualification that was removed. The notation shows that s 3(4)(c) was amended and s 3(4)(d) was repealed effective 16 July 1999. No other amendments are recorded in the source text. The Act expressly confers power to make reports during recess (s 9) and to summon witnesses (s 10), but those sections appear original. The amendment history is relatively modest, indicating that the core framework of the Committee has remained stable since 1969. The 1992 amendment aligns with the introduction of the Subordinate Legislation Act that year, making the Committee a key oversight body for regulatory process. The 1999 amendment refined membership exclusions. The 1973 repeal of section 13 is a gap; the content is unknown from the source. The Act does not contain any sunset clauses or automatic review provisions; it remains in force without an expiry date.

The source text of the Act does not refer to any litigation or court cases. No cases are mentioned in the Act itself or in the amendment notations. The Act does not create a private right of action; it is a procedural statute governing a parliamentary committee. It is therefore unlikely to be directly litigated by private parties. The most probable avenue for judicial consideration would be through challenges to regulations that have been the subject of adverse committee reports, or through questions about the scope of the Committee’s powers or the validity of its proceedings. For example, a witness who refused to appear might challenge a contempt finding, or a regulation making authority might challenge a Committee report claiming it exceeded its functions. However, the Act provides no express right of appeal or review of Committee decisions. The High Court of Australia has considered the limits of parliamentary committees’ powers in other contexts, but no such cases are cited in the source. The definition of “regulation” excluding court rules could be litigated if a regulation is arguably a rule of court or if an instrument is mischaracterised. The Committee’s opinion on whether a regulation “appears to be within the regulation making power” (s 8(1)(a)(i)) is not binding on a court, so a regulation could be upheld despite an adverse committee report, or struck down despite a favourable report. The Act’s reference to “unduly trespasses on personal rights and liberties” (s 8(1)(a)(iii)) is a normative standard that could influence judicial reasoning if a court were considering proportionality, but again no cases are noted. Any litigation history would have to be researched externally; the Act itself provides no details. In the absence of source grounded cases, one can only note that the Act is a creature of parliamentary procedure and has not generated reported case law that is visible from the statutory text alone.

Several features of the Act create traps for the unwary. The most important is the narrow definition of “regulation” in s 2. It includes only instruments required by law to be laid before both Houses of Parliament. Many types of subordinate legislation, such as disallowable instruments that are tabled before only one House, or instruments that are not required to be laid at all, fall outside the Committee’s scrutiny. The express exclusion of rules of court means a vast body of procedural law made by judges is never examined under this Act. The Act only applies to regulations made after its commencement, but s 8(2) allows the Committee to examine pre existing regulations at its discretion, so past instruments are not immune. The quorum of four out of six members (s 5(1)) is high; if only three members attend, the Committee cannot transact formal business, potentially stalling scrutiny if members are unavailable. The tied vote procedure in s 5(5)(b) means that when votes are equal the question passes in the negative. This means that to adopt a report critical of a regulation, the Committee needs a positive majority; an evenly split committee cannot issue an adverse report. This may make it easier for defenders of the regulation to block committee criticism by ensuring at least one member votes against or abstains, creating a 3-3 tie. The requirement for the chairman to have only a deliberative vote (s 5(5)(a)) means he cannot break a tie. The authority under s 9 to receive reports during recess and the obligation to act “forthwith” could catch regulators off guard; if a regulation is notified in the Gazette just before Christmas, the Committee may examine it during the summer recess and send a report that requires immediate amendment or suspension. The authority must have the capacity to respond quickly. s 7(4) obliges the Government Printer to provide copies of all regulations to the secretary “as soon as they are notified or published in the Gazette.” A delay in printing could push scrutiny timelines. The cross reference in s 12 to the Public Works Committee Act 1914 for witness fees means the scale may change without direct parliamentary notice in this Act. The Act does not confer any power on the Committee to initiate court proceedings or to stay a regulation pending its report; the only suspension power lies with the regulation making authority under s 9. The requirement to sit with open doors when taking evidence (s 6(2)) means the Committee cannot hear sensitive information in private, possibly deterring some witnesses or recipients of commercial information from cooperating.

Compliance with this Act is primarily a matter for the parliamentary administration and for authorities that make regulations. For the Committee itself, compliance means following the procedural rules set out in sections 3 through 7: ensuring proper appointment of members with no Minister, President, or Speaker; electing a chairman and vice chairman; maintaining quorum; sitting with open doors when taking evidence; keeping minutes; recording divisions; and distributing regulations to members. The secretary must obtain regulations from the Government Printer and distribute them. The Committee must exercise its functions under s 8, but the Act does not prescribe a timeline or method; it has discretion. For regulation making authorities, compliance is most relevant when the Committee sends a report during a parliamentary adjournment or recess under s 9. The authority must respond “forthwith” by either amending the regulation in the manner indicated, rescinding it, or taking action to suspend its operation until both Houses have dealt with the report. This requires a process for receiving and acting on committee correspondence even when Parliament is not sitting. Authorities should designate a responsible officer to monitor committee reports and to have the legal and drafting resources ready to prepare amending instruments or suspension notices quickly. They should also ensure that any regulation they make is drafted carefully to avoid attracting adverse committee findings under the five special reference criteria. This means: ensuring the regulation is within the enabling Act’s power and consistent with its general objects; drafting clearly so that its form and purport do not “call for elucidation”; avoiding provisions that unduly trespass on personal rights and liberties (e.g., by including appropriate safeguards, sunset clauses, or review rights); ensuring that rights are not made dependent on administrative decisions alone without some avenue for independent review; and resisting the temptation to put policy matters that ought to be in primary legislation into a regulation. Additionally, authorities must comply with the Subordinate Legislation Act 1992 to the extent applicable, because the Committee will check compliance under s 8(1)(ab). This includes preparing regulatory impact statements and consulting where required. Failure to comply with those procedural obligations can itself trigger a committee report. The ultimate compliance mechanism is political and reputational; the legal duty under s 9 to act on a recess report is enforceable only through parliamentary pressure or potential legislation, so authorities are wise to treat committee recommendations seriously.