Appendix 1The committee's scrutiny principles in detail

Application of criterion set out in standing order 24(1)(a)(i)

1.1The committee is required to report on whether the provisions of proposed legislation could 'trespass unduly on personal rights and liberties'. For example, a bill might raise issues relating to:

having a retrospective and adverse effect on those to whom it applies, sometimes from the date of a media announcement (in these instances known as 'legislation by press release');

offence provisions that are broad in nature and may capture ordinary conduct as a result, particularly when the offence provision contains a custodial penalty;

providing for immunity from civil or criminal liability, which removes the common law right to bring an action to enforce legal rights;

abrogating the privilege against self-incrimination (the right people have at common law to avoid incriminating themselves and to remain silent when questioned about an offence in which they were allegedly involved);

reversing the common law burden of proof (requiring a person to prove their innocence when legal proceedings are taken against them);

imposing strict or absolute liability as an element of fault for an offence;

authorising search and seizure without the need to obtain a judicial warrant;

privacy, including the confidentiality of professional communications with a person's legal advisers; or

equipping officers with oppressive powers, especially for use against a vulnerable group of people.

1.2These are categories that have arisen for consideration during most parliaments and are ones with which the committee is very familiar. However, standing order24(1)(a)(i) may also apply in other circumstances and the committee is alert to identifying any new matters that may be considered inconsistent with the intent of the principle. More detail about matters that give rise to scrutiny concern and examples are discussed below.

Retrospectivity

1.3Legislation has retrospective effect when it makes a law apply to an act or omission that took place before the legislation itself was enacted. Criticism of this practice is longstanding. The committee considers that retrospective legislation is of concern where it will, or might, have a detrimental effect on people. The committee will comment adversely in these circumstances. Where proposed legislation will have retrospective effect the committee expects that the explanatory memorandum should set out in detail the reasons retrospectivity is sought. The justification should include a statement of whether any person will or might be adversely affected and, if so, the number of people involved and the extent to which their interests are likely to be affected.

For examples, see the committee's comments concerning the:

Public Sector Superannuation Salary Legislation Amendment Bill 2022 (Scrutiny Digest 4 of 2022, pp. 17–19);

National Anti-Corruption Commission Bill 2022 National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (Scrutiny Digest 6 of 2022, pp. 16–19); and

Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 202 (Scrutiny Digest 7 of 2022, pp. 4–7).

Broad scope of offence provisions

1.4The committee considers that any offence provision should be clearly drafted and sufficiently precise to ensure that any person may understand what may constitute an offence. The committee notes that insufficiently defined terms contained within offence provisions may impact on the predictability and guidance capacity of the law, undermining fundamental rule of law principles. This is particularly so when the offence provision contains a custodial penalty.

For example, see the committee's comment concerning the:

National Anti-Corruption Commission Bill 2022 National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (Scrutiny Digest 6 of 2022, pp. 28–29).

Immunity from civil liability

1.5An immunity from civil liability removes any common law right to bring an action to enforce legal rights (for example, a claim of defamation), unless it can be demonstrated that lack of good faith is shown. The committee notes that in the context of judicial review, bad faith is said to imply a lack of an honest or genuine attempt to undertake the task and that it will involve personal attack on the honesty of the decision-maker. As such the courts have taken the position that bad faith can only be shown in very limited circumstances.

1.6The committee expects that if a bill seeks to provide immunity from civil liability, particularly where such immunity could affect individual rights, this should be soundly justified.

For examples, see the committee's comments concerning the:

National Anti-Corruption Commission Bill 2022 National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (ScrutinyDigest 6 of 2022, pp. 31–32);

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Scrutiny Digest 7 of 2022, pp. 29-30); and

Telecommunications Legislation Amendment (Information Disclosure, National Interest and Other Measures) Bill 2022 (Scrutiny Digest 8 of 2022, pp. 6-7).

Abrogation of the privilege against self-incrimination

1.7At common law, a person can decline to answer a question on the ground that their reply might tend to incriminate them. Legislation that interferes with this common law entitlement trespasses on personal rights and liberties and causes the committee considerable concern. However, the committee is also conscious of a government's need to have sufficient information to enable it to properly carry out its duties for the community. The committee accepts that in some circumstances good administration might require access to information that can only be obtained, or can best be obtained, by requiring a person to answer questions even though this means that he or she must provide information showing that he or she may be guilty of an offence.

1.8The committee does not, therefore, see the privilege against self-incrimination as absolute. In considering whether to accept legislation that includes a provision affecting this privilege the committee must be convinced that the public benefit sought will decisively outweigh the resultant harm to the maintenance of civil rights.

1.9One of the factors the committee considers is the subsequent use that may be made of any incriminating disclosures. The committee generally holds to the view that it is relevant to take into account whether the proposed legislation balances the harm of abrogating the privilege by including a prohibition against any direct and indirect uses of the information beyond the purpose for which it is being obtained.

1.10To date the only exception to this that the committee generally finds acceptable is that a forced disclosure should only be available for use in criminal proceedings when they are proceedings for giving false or misleading information in the disclosure the person has been compelled to make. The committee's experience is that the importance of the availability of these use and derivative use immunities are generally understood and they are usually included in bills that seek to abrogate the privilege against self‑incrimination.

For examples, see the committee's comments concerning the:

1.11Security Legislation Amendment (Critical Infrastructure Protection) Bill 2022 (ScrutinyDigest2 of 2022, pp. 43­–44); and

1.12National Anti-Corruption Commission Bill 2022 National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (ScrutinyDigest 6 of 2022, pp. 23–28).

Reversal of the burden of proof

1.13At common law, it is ordinarily the duty of the prosecution to prove all the elements of an offence; the accused is not required to prove anything. Provisions in some legislation reverse this burden and require the person charged with an offence to prove, or disprove, a matter in order to establish his or her innocence or at least identify evidence that suggests a reasonable possibility that the matter exists or does not exist.

1.14The committee usually comments adversely on a bill that places the burden on an accused person to disprove one or more elements of the offence with which he or she is charged, unless the explanatory memorandum clearly and adequately justifies the rationale for the approach, particularly by reference to the principles outlined in its comments on this issue recorded in the committee's Scrutiny Digests and in the Commonwealth Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. In this respect, the burden of proof should only be reversed if the relevant matter is peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.[1]

For examples, see the committee's comments concerning the:

Ozone Protection and Synthetic Greenhouse Gas Management Amendment (Miscellaneous Measures) Bill 2021 (ScrutinyDigest 1 of 2022, pp. 16–20);

Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022 (Scrutiny Digest 2 of 2022, pp. 28–29);

Higher Education Support Amendment (Australia’s Economic Accelerator) Bill 2022 (Scrutiny Digest 2 of 2022, pp. 40–41);

Social Media (Protecting Australians from Censorship) Bill 2022 (Scrutiny Digest 3 of 2022, pp. 5–6);

Health Legislation Amendment (Medicare Compliance and Other Measures) Bill 2022 (Scrutiny Digest 4 of 2022, pp. 12-14);

Financial Accountability Regime Bill 2022 (Scrutiny Digest 5 of 2022, pp. 15-18);

Financial Sector Reform Bill 2022 (Scrutiny Digest 5 of 2022, pp. 20-23, 25-27);

Maritime Legislation Amendment Bill 2022 (Scrutiny Digest 6 of 2022, pp. 12-15); and

Privacy Legislation Amendment (Enforcement and Other Measures) Bill 2022 (Scrutiny Digest 7 of 2022, pp. 38-39).

Strict and absolute liability offences

1.15The committee draws the Senate's attention to provisions that create offences of strict or absolute liability and expects that where a bill creates such an offence the reasons for its imposition will be set out in the explanatory memorandum that accompanies the bill.

1.16An offence is one of strict liability where it provides for people to be punished for doing something, or failing to do something, whether or not they have a guilty intent. A person charged with a strict liability offence is able to invoke a defence of mistake of fact.

1.17An offence of absolute liability also provides for people to be punished for doing something, or failing to do something, whether or not they have a guilty intent. However, in the case of absolute liability offences, the defence of mistake of fact is not available.

For examples, see the committee's comments concerning the:

Maritime Legislation Amendment Bill 2022 (ScrutinyDigest6 of 2022, pp. 12-15);

Transport Security Amendment (Critical Infrastructure) Bill 2022 (Scrutiny Digest 2 of 2022, pp. 50-52); and

Offshore Electricity Infrastructure Legislation Amendment Bill 2022 (Scrutiny Digest 6 of 2022, pp. 42-43).

Powers of search and seizure without warrant

1.18The committee consistently draws the Senate's attention to provisions that allow search and seizure without the issue of a warrant. As a general rule, a power to enter premises without the consent of the occupier, or without a warrant, trespasses unduly on personal rights and liberties. A provision giving such a power will be acceptable only when the circumstances and gravity of the matter justify it (and this information should be included in the explanatory memorandum).

For examples, see the committee's comments concerning the:

Counter-Terrorism Legislation Amendment (AFP Powers and Other Matters) Bill 2022 (Scrutiny Digest 5 of 2022, pp. 4-6);

National Anti-Corruption Commission Bill 2022 National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (Scrutiny Digest 6 of 2022, pp. 38-40); and

Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2022 (Scrutiny Digest 7 of 2022, pp. 22-24).

Application of criterion set out in standing order 24(1)(a)(ii)

1.19Legislation may contain provisions which make rights and liberties unduly dependent on insufficiently defined administrative powers. For example, a provision might:

give administrators ill-defined and/or wide powers; or

delegate power to 'a person' without any further qualification as to who that person might be.

Broad discretionary powers

1.20Since its establishment in 1981, the committee has drawn the Senate's attention to legislation that gives administrators seemingly ill-defined and wide powers. If a provision that is of interest to the committee is accompanied by a comprehensive explanation of the rationale for the approach in the explanatory memorandum, the committee is able to better understand the proposal and either make no further comment or leave the matter to the consideration of the Senate.

For examples, see the committee's comments concerning the:

Telecommunications (Interception and Access) Amendment (Corrective Services Authorities) Bill 2022 (Scrutiny Digest 2 of 2022, pp. 48-49);

Aged Care Amendment (Implementing Care Reform) Bill 2022 (Scrutiny Digest 4 of 2022, pp. 1-3);

Financial Accountability Regime Bill 2022 (Scrutiny Digest 5 of 2022, pp. 10–13);

High Speed Rail Authority Bill 2022 (Scrutiny Digest 5 of 2022, pp. 28–30); and

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Scrutiny Digest 7 of 2022, pp.31–33).

Delegation of power to 'a person' or to a wide class of persons

1.21The committee consistently draws attention to legislation that allows significant and wide-ranging powers to be delegated to anyone who fits an all‑embracing description (such as 'a person') or which allows delegations to a relatively large class of persons with little or no specificity as to appropriate qualifications or attributes. Generally, the committee prefers to see a limit set either on the sorts of powers that might be delegated or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service.

1.22Where delegations are made the committee also expects that an explanation of why they are considered necessary should be included in the explanatory memorandum, especially if the delegation is broad.

For examples, see the committee's comments concerning the:

National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Bill 2021 (Scrutiny Digest 1 of 2022, pp. 8–10);

Agriculture Biodiversity Stewardship Market Bill 2022 (Scrutiny Digest 2 of 2022, pp. 6–7);

Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 (Scrutiny Digest 4 of 2022, pp. 4–5);

Defence, Veterans' and Families' Acute Support Package Bill 2022 (Scrutiny Digest 4 of 2022, pp. 10-11);

Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Bill 2022 (Scrutiny Digest 7 of 2022, pp. 2-3);

Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Scrutiny Digest 7 of 2022, pp. 7-9); and

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Scrutiny Digest 7 of 2022, pp. 27-29).

Application of criterion set out in standing order 24(1)(a)(iii)

1.23Legislation may contain provisions which make 'rights, liberties or obligations unduly dependent upon non-reviewable decisions'. Relevantly, a bill may:

exclude review on the merits by an appropriate appeal tribunal;

exclude judicial review of the legality of a decision;

provide that reasons need not be given for a decision; or

fail to provide for people to be notified of their rights of appeal against administrative decisions.

Excluding merits and judicial review

1.24The committee is of the view that, where a decision may have a substantial impact on a person's rights and interests, judicial review should generally be available to ensure that such decisions are lawfully made. Since its establishment, the committee has drawn attention to provisions that explicitly or otherwise exclude or fail to provide for effective judicial review. The committee is also concerned at the inclusion of no invalidity clauses which have the effect that an act done or decision made in breach of a particular statutory requirement or other administrative law norm does not result in the invalidity of that act or decision. These clauses can limit the practical efficacy of judicial review to provide a remedy for legal errors.

1.25The committee also routinely draws attention to bills that seek to deny the opportunity for independent merits review. However, the committee also accepts that there are circumstances in which merits review is not, or may not be, necessary. The committed is assisted when the explanatory memorandum comprehensively and persuasively describes the rationale for the proposed approach.

For examples, see the committee's comments concerning the:

Atomic Energy Amendment (Mine Rehabilitation and Closure) Bill 2022 (Scrutiny Digest 5 of 2022, pp. 1–2);

Treasury Laws Amendment (2022 Measures No. 3) Bill 2022 (Scrutiny Digest 5 of 2022, pp. 36–37);

Ozone Protection and Synthetic Greenhouse Gas Management Reform (Closing the Hole in the Ozone Layer) Bill 2022 (Scrutiny Digest 6 of 2022, pp. 51–52);

Biosecurity Amendment (Strengthening Biosecurity) Bill 2022 (Scrutiny Digest 6 of 2022, pp. 10-11); and

Broadcasting Services Amendment (Community Radio) Bill 2022 (Scrutiny Digest 7 of 2022, pp. 25-26).

Application of criterion set out in standing order 24(1)(a)(iv)

1.26Legislation often includes the delegation of a power to make laws, giving delegates (usually a member or representative of the Executive Government) the authority to make regulations or other instruments that are not required to be considered and approved by Parliament before they take effect. The committee's task under this criterion is therefore to draw the Senate's attention to provisions that seek to delegate Parliament's power inappropriately. Examples of provisions that may inappropriately delegate legislative power include those which:

enable delegated legislation to amend or modify the operation of an Act of Parliament (often called a 'Henry VIII' clause);

provide for matters which are so important that they should be regulated by Parliament but are, in fact, to be dealt with by delegated legislation;

provide that a levy or a charge be set by regulation; or

give to the executive unfettered control over whether or when an Act passed by the Parliament should come into force.

Henry VIII clauses

1.27A Henry VIII clause is a provision which authorises the amendment of either the empowering Act, or any other primary legislation, by means of delegated legislation. Since its establishment, the committee has consistently drawn attention to Henry VIII clauses and other provisions which permit delegated legislation to amend or take precedence over primary legislation. A clear and helpful explanation in the explanatory memorandum can allow the committee to leave the matter to the Senate.

For examples, see the committee's comments concerning the:

Corporate Collective Investment Vehicle Framework and Other Measures Bill 2021(Scrutiny Digest 1 of 2022, pp. 4–5);

Significant matters in delegated legislation

1.28The committee also draws attention to provisions that inappropriately delegate legislative power of a kind which ought to be exercised by Parliament alone. Significant matters should be set out in primary legislation that is subject to full parliamentary consideration and not left to the delegated legislation disallowance process.

For examples, see the committee's comments concerning the:

Ozone Protection and Synthetic Greenhouse Gas Management Amendment (Miscellaneous Measures) Bill 2021 (Scrutiny Digest 1 of 2022, pp. 16-19);

Agriculture Biodiversity Stewardship Market Bill 2022 (Scrutiny Digest 2 of 2022, pp. 4–5);

Crimes Legislation Amendment (Ransomware Action Plan) Bill 2022 (Scrutiny Digest 2 of 2022, pp. 29–30);

Social Media (Anti-Trolling) Bill 2022 (Scrutiny Digest 2 of 2022, pp. 45–47);

Emergency Response Fund Amendment (Disaster Ready Fund) Bill 2022 (Scrutiny Digest 5 of 2022, pp. 7–9);

Treasury Laws Amendment (2022 Measures No. 3) Bill 2022 (Scrutiny Digest 5 of 2022, pp. 33–35); and

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Scrutiny Digest 7 of 2022, pp. 31–33).

Setting the rate of a 'levy' by regulation

1.29The committee has also consistently drawn attention to legislation that provides for the rate of a 'levy' to be set by regulation, particularly where such a levy may amount to taxation. It is for the Parliament, rather than the makers of delegated legislation, to set a rate of tax.

1.30The committee recognises, however, that where the rate of a levy needs to be changed frequently and expeditiously this may be better done through amending regulations rather than the enabling statute. Where a compelling case can be made for the rate to be set by delegated legislation, the committee expects that there will be some limits imposed on the exercise of this power. For example, the committee expects the enabling Act to prescribe either a maximum figure above which the relevant regulations cannot fix the levy, or, alternatively, a formula by which such an amount can be calculated. The vice to be avoided is delegating an unfettered power to impose levies or fees.

For example, see the committee's comments concerning the:

Narcotic Drugs (Licence Charges) Amendment Bill 2022 (Scrutiny Digest 4 of 2022, pp. 15–16); and

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Scrutiny Digest 7 of 2021, pp.30-31).

Application of criterion set out in standing order 24(1)(a)(v)

1.31Whenever Parliament delegates power to legislate, it should properly address the question of how much oversight to maintain over the exercise of that delegated power. Provisions which insufficiently subject the exercise of legislative power to parliamentary scrutiny include those which:

provide a power to make delegated legislation that is not disallowable by the Parliament;

provide that legislative instruments to be made under primary legislation may incorporate rules or standards as in force from time to time;

enable a minister or other person to issue guidelines, directions or similar instruments influencing how powers granted under a law are to be exercised, with no obligation that they be tabled in Parliament or subject to disallowance; or

provide for the ongoing appropriation of an unspecified amount of money from the Consolidated Revenue Fund.

Delegated legislation not subject to disallowance

1.32When a provision of a bill specifies that an instrument is not subject to disallowance the committee expects the explanatory memorandum to set out a full explanation justifying the exceptional circumstances that warrant the need for the exemption.

For examples, see the committee's comments concerning the:

Agriculture Biodiversity Stewardship Market Bill 2022 (Scrutiny Digest 2 of 2022, pp. 3–4);

Australian Radioactive Waste Agency Bill 2022 (Scrutiny Digest 2 of 2022, pp. 25-27);

Brisbane Airport Curfew and Demand Management Bill 2022 (Scrutiny Digest 3 of 2022, pp. 1-2);

High Speed Rail Authority Bill 2022 (Scrutiny Digest 5 of 2022, pp. 28–30);

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Scrutiny Digest 7 of 2022, pp. 34–35); and

Biosecurity Amendment (Strengthening Biosecurity) Bill 2022 (Scrutiny Digest 6 of 2022, pp.1–7).

Incorporating material 'as in force from time to time'

1.33The Legislation Act 2003 includes a general rule which allows a legislative instrument, such as a regulation, to adopt or incorporate additional material and give it the force of law. The incorporated material applies in the form in which it exists at the time of adoption unless a provision in the relevant Act allows material to be incorporated 'as in force from time to time'. Typical wording included in bills to achieve this outcome provides that the relevant regulations may:

…apply, adopt or incorporate, with or without modification, any matter contained in any other instrument or writing as in force from time to time.

1.34Allowing material to be incorporated 'as in force from time to time' is of concern from a scrutiny perspective because it:

allows a change in legal obligations to be imposed without the Parliament's knowledge and without the opportunity for Parliament to scrutinise the variation;

can create uncertainty in the law because those affected may not be aware that the law has changed; and

those obliged to obey the law may have inadequate access to its terms, depending on the nature of the material being incorporated.

1.35The committee expects that the explanatory memorandum for a bill that includes a provision which seeks to incorporate non-legislative material 'as in force from time to time' will clearly and comprehensively explain the necessity for this approach and indicate how the concerns outlined above will be met.

For examples, see the committee's comments concerning the:

Agriculture Biodiversity Stewardship Market Bill 2022 (Scrutiny Digest 2 of 2022, pp. 1–2);

Ozone Protection and Synthetic Greenhouse Gas Management Amendment (Miscellaneous Measures) Bill 2021 (Scrutiny Digest 1 of 2022, pp. 20–21);

Atomic Energy Amendment (Mine Rehabilitation and Closure) Bill 2022 (Scrutiny Digest 5 of 2022, pp. 3); and

Ozone Protection and Synthetic Greenhouse Gas Management Reform (Closing the Hole in the Ozone Layer) Bill 2022 (Scrutiny Digest 6 of 2022, pp. 49–50).

Standing Appropriations

1.36Standing appropriations enable entities to spend money from the Consolidated Revenue Fund on an ongoing basis. Their significance from an accountability perspective is that, once they have been enacted, the expenditure they involve does not require regular parliamentary approval and therefore escapes parliamentary control. They are not subject to approval through the standard annual appropriations process.

1.37The committee expects that the explanatory memorandum to a bill establishing a standing appropriation will include an explanation of the reason the standing appropriation was considered necessary and also looks to other circumstances such as a cap on the funding or a limitation on the period during which it applies.

1.38The committee reports on its scrutiny of standing appropriations in Chapter 3 of each Scrutiny Digest.

Footnotes

[1]Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011), p. 50.