Unactivated Acts: A sequel

Welcome to the first edition of the House in Review for 2020! We look forward to another busy and interesting year in the Legislative Council.

Just prior to the final sitting period of 2019 we posted an article about the commencement of Acts, leaving our readers on a cliff hanger: what happens when Acts set to commence by proclamation are not proclaimed?*

The article mentioned that commencement of legislation can be delayed in certain circumstances, for example when the Government needs to address administrative or resourcing issues in order for an Act to function as intended. But how is the Parliament kept informed of such cases?

Background

In 1990 the Council agreed to a motion requesting that a list of all unproclaimed legislation be tabled in the House every six months. The motion was designed to ensure that legislation, as passed by the Parliament, came into effect, unless there were good reasons to delay. It was a scrutiny device, permitting parliamentarians to monitor what happens to legislation after is has been passed.

Unfortunately, prorogation of the House in 1990 prevented the practice from starting immediately, however once the issue was raised again in 1996, it became regular practice to table a list of unproclaimed legislation. The practice was formalised in 2004 in Standing Order 160(2) and the list must now be tabled on the second sitting day of every month. In practice this means approximately nine times a year.

Recent developments

A more recent example of the House monitoring unproclaimed legislation occurred in 2019. The Modern Slavery Act was passed by both Houses and assented in 2018, however its provisions have not yet commenced. It therefore appears on the list of unproclaimed legislation tabled in the House each month. The Opposition raised the matter several times, including during Question Time in August, when the Leader of the Government advised that the Act had not been proclaimed as it contained legal and operational issues that would prevent it from operating as intended. To address these issues the Leader of the Government, representing the Premier, referred the Act to the Council’s Standing Committee on Social Issues to inquire into and report on the operability of the legislation. Watch this video to see Mr Donnelly’s question and Mr Harwin’s answer:

This is a demonstration of the Legislative Council using House and Committee functions to scrutinise actions of the Executive Government and properly review legislation. Those who would like to follow the progress of the Modern Slavery Act can read the report of the Standing Committee on Social Issues once it is tabled in February.

*Some Acts commence on the date of assent, while others may commence on a specified date or “on a day to be appointed by proclamation”.