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Tuesday, May 06, 2008

Where are we on compliance when the Attorney General thinks mandatory means optional?

Matthew Moore in the Sydney Morning Herald last Saturday drew attention to the fact that successive NSW Attorneys General have failed to comply with a statutory requirement to undertake a review of the legislation that established the NSW Administrative Decisions Tribunal. A report on whether the legislation was achieving Parliament's objectives was required by law to be tabled in Parliament no later than July 2003. Almost 5 years later it is still to appear. Submissions were invited from members of the public in 2002. There has been no other opportunity since to express views about whether the Tribunal is providing speedy, independent merits review of decisions, without the legal trappings associated with court processes.

My view is that the Tribunal processes have progressively become more legalistic and there is a serious question whether in the Freedom of Information field in particular, this review model should be replaced by an information commissioner.

However the issue for the moment is what appears to be the attitude of the state's top law officer that a mandatory requirement to report to Parliament is optional. And this failure is not an isolated case. The Attorney General has never produced a review of the Privacy and Personal Information Protection Act, which, according to the Act, was to be tabled in Parliament no later than November 2004.

Who knows how many other similar requirements may have been ignored by NSW ministers? A search of the statute book identifies 235 NSW acts that require the responsible minister to undertake a review five years after the act received assent, and to table the report within 12 months of the fifth anniversary of assent. In many instances these dates have now passed. It's impossible to tell from the Parliament's website what reports have been tabled and what is overdue

Does the NSW Parliament take any interest in what happens after these provisions are included in legislation, or do anything when ministers fail to comply?

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