This Memorandum explains arrangements relating to statutory rules due for staged repeal on 1 September 1997. This Memorandum replaces Premier's Memorandum No. 1996-03.

As you will be aware, the Subordinate Legislation Act provides for the staged repeal of regulations on 1 September of each year. Regulations which are due for repeal may:

• be re-made with major or minor amendments;
• be allowed to lapse; or
• have their repeal postponed.

Advice to Parliamentary Counsel

In a letter dated 26 September 1996, the Parliamentary Counsel has written to agencies with regulations due for repeal on 1 September 1997, requesting that his Office be notified by 1 December 1996 of Ministers' intentions with respect to those regulations. Ministers are requested to ensure that the Parliamentary Counsel received the advice requested (including drafting instructions for replacement instruments) by 1 December 1996. If the advice has not yet been provided, Ministers are requested to ensure that it is provided without delay and in any case no later than 18 December 1996.

Requests for postponement

Postponements of repeal of regulations will be restricted to exceptional cases only. Requests for postponement should be made by the Minister within whose administration the relevant regulation falls. As in past years, the requests should be directed to me through the Parliamentary Counsel's Office. Ministers who make a postponement request have the responsibility of establishing an adequate case to demonstrate that exceptional circumstances exist which justify postponing the repeal of a regulation. That case must include details of the proposed timetable for the repeal and replacement of the regulation. This should include proposed dates for initial Cabinet or Ministerial approval, release of exposure drafts, if any; advertising the regulations and RIS; public consultation and commencement.

The following principles will be applied to all postponement requests:

1. Requests for postponement on the basis of a proposal for the review, amendment or repeal of the principal legislation, or the regulations themselves, should only be made if the proposal has been approved by Cabinet and it is intended that the regulation will be remade or replaced by 1 September 1998 at the latest.
2. If a proposal of the type referred to above has not been approved by Cabinet, consideration will only be given to requests for postponement if the regulations are lengthy and complex and the timetable for review would allow new regulations to be in place by 1 September 1998.
3. Even if Cabinet has endorsed a timetable for review of legislation which extends over several years, consideration will not be given to requests-for the Premier to 'agree in principle' to postponements extending beyond the current year. Agencies will still be required to seek any necessary postponements each year.
4. As a general rule, the priorities for regulatory reform contained in the Subordinate Legislation Act should not give way to the demands of a timetable for national review, of legislation. An exception may be made if the timetable for replacement regulations does not extend beyond 1 September 1998.

Notice to Regulation Review Committee of proposed postponements

Section 11(4) of the Subordinate Legislation Act provides that the Regulation Review Committee must be given at least one month's notice before the repeal of a regulation can be postponed on a third, fourth or fifth occasion. The Chairperson of the Regulation Review Committee has expressed the concern that, in the past, Ministers and agencies have not addressed the issue of postponement at an early enough stage and that notifications to the Committee do not adequately present the reasons for the postponement.

As a result of these concerns, the Regulation Review Committee has advised that it will conduct formal inquiries and call Ministers and Department Officers to attend where there has been an obvious departure from the intent of the postponement provisions. Ministers are requested to ensure that the Regulation Review Committee is advised of proposed postponements as early as possible to allow the Committee sufficient time to consider the circumstances of the postponement.

Advice to Cabinet Office of Replacement Regulations

Where a regulatory impact statement has been prepared, the draft regulations should be submitted to the Cabinet Office together with the regulatory impact statement at the same time as the public consultation and advertising process is initiated. In cases where a regulatory impact statement is not prepared, a draft of the regulation should be submitted to the Cabinet Office as soon as it has been settled with the Parliamentary Counsel, to enable sufficient time for consideration before it is formally submitted to the Governor.

Repeals which have been postponed on five previous occasions

There are a number of regulations due for repeal which have already been postponed on five previous occasions. For these regulations, it is not possible for further postponements to be granted under the Subordinate Legislation Act. Ministers should ensure that there is not a regulatory vacuum as a result of these impending repeals. By the end of January 1997 at the latest, Ministers are requested to provide advice to me concerning their plans in relation to the remaking of these regulations.

Bob Carr
Premier