This Memorandum explains arrangements for statutory rules (including regulations) due for staged repeal under the Subordinate Legislation Act 1989 on 1 September each year. It replaces Premier's Memorandum No.98-34. Under the program of staged repeal, regulations which are due for repeal, may:

• Be re-made with major or minor amendments; or

• Be allowed to lapse; or

• Have their repeal postponed.

Following the recent reallocation of the Act to provide for the joint administration of the Act by myself and the Minister for Regulatory Reform, the Minister will now have principal carriage of the staged repeal process and will determine responses to requests for postponement, supported by Legal Branch in the Department of Premier and Cabinet. Requests for postponement, however, should continue to be made to me.

Advice to the Parliamentary Counsel
Parliamentary Counsel's Office co-ordinates the staged repeal program and each year writes to those agencies with regulations due for repeal on 1 September in the following year, requesting notification by 1 December of their Ministers' intentions with respect to those regulations. Notifications must be received by this date. If the regulation is to be re-made, the agency is also to provide drafting instructions for replacement instruments by 1 December.

Agencies that have not yet provided this information to the Parliamentary Counsel's Office for the current year should do so immediately.

Requests for postponement
Consistent with the Government's commitment to remove red tape, as outlined in the State Plan, requests for postponement will be carefully scrutinised. Requests for postponement must be made to me by the Minister within whose administration the regulation falls by 31 January in the year the regulation is due for automatic repeal.

It is essential that requests for postponement are made by this date to ensure that the Minister for Regulatory Reform is able to properly consider postponement requests, and provide a response to Ministers with sufficient time to remake regulations if a request is refused.

If a request for postponement is not received by the 31 January deadline, the regulation must be re-made or allowed to lapse. Agencies will be advised of this immediately following 31 January. Requests for postponement made after this date will generally not be considered unless the Minister is able to demonstrate a significant change in circumstances after 31 January which will prevent the regulation being remade by 1 September. A copy of any such request should be sent to the Parliamentary Counsel.

Where regulations due for repeal have already been postponed on five previous occasions, it is not possible for further postponements to be granted under the Subordinate Legislation Act 1989.

Notice to Legislation Review Committee
Section 11(4) of the Subordinate Legislation Act 1989stipulates that the Legislation Review Committee is to be given at least one month's notice of the Minister's intention before the repeal of a regulation can be postponed on a third, fourth or fifth occasion. Ministers are requested to ensure that the Committee is advised of proposed postponements as early as possible.

Exceptional circumstances required for postponement
Requests for postponement must state the number of previous postponements and demonstrate that exceptional circumstances exist. Requests should be supported by a proposed timetable detailing dates for Ministerial and, if required, Cabinet approval of the new regulation; release of exposure drafts; preparation and advertisement of the regulatory impact statement; the conduct of public consultation and a proposed commencement date.

While the following criteria are not exhaustive, generally, consideration will only be given to requests for postponement where:

1. The principal legislation under which the regulations are made is subject to a statutory five year review, or Cabinet or the Premier has otherwise approved a review, of either the principal legislation and/or the regulations themselves. (Please note, where Cabinet has endorsed a review of legislation that extends over several years, agencies will still be required to seek any necessary postponements on a year by year basis).

2. The regulations to be reviewed are particularly lengthy and complex. In this case, postponement will be considered only where the proposed timetable for review will allow new regulations to be in place well within the 12 month extension.

3. The principal legislation or the regulations themselves or both, are the subject of a national review of legislation, and the timetable for replacement regulations does not extend beyond 1 September in the following year.

Where a request for postponement has been made, Ministers will be advised by 31 March as to whether or not the request has been granted.

Other review regimes
The fact that reviews of legislation and associated regulations are required under a number of review regimes will be considered during the assessment of the requests for postponement. However, Ministers are requested to co-ordinate the conduct of those reviews to avoid, as far as possible, unnecessary duplication or delay.

Advice to Department of Premier and Cabinet of replacement regulations
Relevant Executive Council papers, including the replacement regulations, together with the Regulatory Impact Statement (where relevant) should be submitted to Cabinet Secretariat in the Department of Premier and Cabinet as soon as they have been settled with the Parliamentary Counsel and signed by the Minister, to enable sufficient time for consideration before they are formally submitted to the Governor.

Regulatory Impact Statements
Section 5(1) of the Subordinate Legislation Act 1989 generally requires a Regulatory Impact Statement (RIS) to be prepared before a principal statutory rule is made. The RIS contains substantial background information regarding the proposed regulation.

Section 5(4) of the Subordinate Legislation Act 1989 requires Ministers to forward a copy of any RIS and any submissions received in relation to the proposed regulation to the Legislation Review Committee within 14 days of the regulation's publication in the Gazette. I would appreciate it if you would ensure that your agencies comply with this requirement.

A number of additional tabling requirements should also be met.

The following procedures must be undertaken when making principal statutory rules:

• Ministers are requested to table a copy of the RIS in the same sitting week as Parliament is given notice of the making of a new regulation, or as soon as possible afterward. Explanatory notes or a background paper should be tabled with the RIS if the final regulation is substantially different from the draft regulation that was released for public comment.

• Ministers are encouraged to table other documents, in addition to the RIS, if the documents would aid Members of Parliament in understanding the background or substance of a new statutory rule. Examples of other relevant material that might be tabled include incorporated material such as codes of practice, guidelines, standards or other publications related to the regulation.

Morris Iemma
Premier