Third report of 2004
The Quality
of Explanatory Memoranda Accompanying
Bills
24 March 2004
ISSN
0729-6258
Contents
Members of the Committee
Summary of Recommendations
Chapter 1 - Introduction
Chapter 2 - Explanatory Memoranda
The
purpose of explanatory memoranda
Guidance
provided for the drafting of explanatory memoranda
Legislation Handbook
Legislation Circulars
Office of Parliamentary Counsel Drafting
Directions
Chapter 3 - Committee’s
Consideration of Explanatory Memoranda
Retrospective
commencement or application
Retrospective
commencement
Retrospective
application
Unclear
or delayed commencement of legislation or
part of the legislation
Commencement
on proclamation
Delegation
of powers and functions
Legislation
by press release
Provision
of absolute and strict liability offences
Reversal
of onus of proof
Other
matters
A Private Senator’s Bill
Conclusion
Chapter 4 - Improving the Quality
of Explanatory Memoranda
Measures
to improve the quality of explanatory memoranda
Guidance for officers preparing explanatory memoranda
Other measures
Conclusion
Members of the committee
Senator T Crossin (Chair)
Senator B Mason (Deputy Chairman)
Senator G Barnett
Senator D Johnston
Senator J McLucas
Senator A Murray
Terms of reference
Extract from Standing Order 24
(1) (a) At
the commencement of each Parliament, a Standing Committee for the Scrutiny of
Bills shall be appointed to report, in respect of the clauses of bills
introduced into the Senate, and in respect of Acts of the Parliament, whether
such bills or Acts, by express words or otherwise:
(i) trespass unduly on personal rights and
liberties;
(ii) make rights, liberties or obligations unduly
dependent upon insufficiently defined administrative powers;
(iii) make rights, liberties or obligations unduly
dependent upon non-reviewable decisions;
(iv) inappropriately delegate legislative powers;
or
(v) insufficiently subject the exercise of
legislative power to parliamentary scrutiny.
(b) The Committee, for the purpose of reporting
upon the clauses of a bill when the bill has been introduced into the Senate,
may consider any proposed law or other document or information available to it,
notwithstanding that such proposed law, document or information has not been
presented to the Senate.
Summary of Recommendations
Chapter 2 - Legislation
Handbook
The committee recommends that the
Department of the Prime Minister and Cabinet amend the Legislation Handbook to provide further guidance on the matters
that the committee considers should be addressed in explanatory memoranda,
including those matters that have been identified in paragraphs 2.10 and 2.11
of this report. (Recommendation page 9)
Chapter 3 - A Private Senator’s
Bill
The committee recommends that the
Department of the Senate develop a set of guidelines to assist senators in the
preparation of private bills. (Recommendation page 26)
Chapter 4 - Improving the quality of explanatory memoranda
The committee recommends that
information relevant to the preparation of explanatory memoranda currently
contained in the Legislation Handbook,
Legislation Circulars and OPC Drafting Directions be consolidated into one primary source of information, namely the
Legislation Handbook. (Recommendation
page 30)
The committee recommends
that, before a bill is introduced into the Parliament, an appropriately
qualified person should check the explanatory memorandum accompanying that bill
to ensure it explains fully the effect and operation of the proposed
legislation and complies with the requirements contained in the Legislation Handbook, as amended. (Recommendation
page 31)
The committee recommends that
consideration be given to developing a course to train departmental officers in
the preparation of explanatory memoranda. (Recommendation page 32)
Chapter
1
Introduction
1.1 The Scrutiny of Bills Committee was
established in 1981 for the purpose of examining all bills introduced into the
Parliament to ensure that they do not:
(a)
trespass
unduly on personal rights and liberties;
(b)
make
rights, liberties or obligations unduly dependent upon insufficiently defined
administrative powers;
(c)
make
rights, liberties or obligations unduly dependent upon non-reviewable decisions;
(d)
inappropriately
delegate legislative powers; or
(e)
insufficiently
subject the exercise of legislative power to parliamentary scrutiny.[1]
1.2 When
a bill is introduced, it is usually accompanied by an explanatory memorandum.
The committee relies on the explanatory memorandum to explain the purpose and
effect of the associated bill and the operation of its individual provisions.
In particular, the committee expects that an explanation will be given for any
provision within a bill that appears to test or infringe the committee’s terms
of reference and provide reasons or justifications for this.
1.3 On
a number of occasions, the committee has commented on the inadequacy of the
information provided in explanatory memoranda. The committee has noted a
decrease in the quality of information in a number of these documents to the
extent where any correspondence to ministers is often aimed at discovering whether a bill attracts its terms of
reference as opposed to why.
1.4 The
committee has also noted that rather than, or as well as, seeking an
explanation, it has increasingly found the need to seek clarification from the
relevant minister of the effect of a provision which could have been avoided if
the explanatory memorandum had been clearer.
1.5 The
committee’s continuing dissatisfaction with these documents culminated in a
series of statements to the Senate during 2003[2] in which it
highlighted its concerns with the quality of explanatory memoranda, noting
deficiencies and providing guidance to government agencies on the matters that
it expected to be addressed.
1.6 In
particular, on 19 March 2003, the committee noted that:
The most
common comment in the Alert Digests tabled by the Committee is that the
explanatory memorandum for a bill does not explain the background and reasons
for measures which on their face might affect personal rights or parliamentary
propriety. The result is that explanatory memoranda are less useful than
intended and the Committee is obliged to initiate correspondence with
Ministers.
These problems are by no means universal, with many comments in Alert
Digests noting an apparent concern which was met by a full explanation in the
explanatory memorandum. Nevertheless the Committee was disappointed at the
standards of some explanatory memoranda.[3]
1.7 Notwithstanding
that many explanatory memoranda provide sufficient information that allows the
committee to determine whether legislative provisions infringe its terms of
reference, the ongoing problem with the poor quality of information in a number
of these documents warrants further examination.
1.8 The
purpose of this report is to examine the difficulties experienced by the
committee with the quality of information being provided in some explanatory
memoranda and to assess whether the current drafting practices and requirements
are sufficient to ensure that these documents explain fully the operation and
effect of proposed legislation.
Chapter 2 - Explanatory Memoranda
The purpose of explanatory memoranda
2.1 An
explanatory memorandum is a companion document to a bill. It is required to
provide a statement of the purpose of the legislation, an outline of why it is
required, the effect of the principle provisions, an explanation of the policy
background and notes on the clauses of the bill. The information provided in
this document should be of such a quality that the committee, members of
Parliament, the courts and the public are able to understand the overall
objective and operation of the bill.
2.2 Government
agencies are usually required to provide explanatory memoranda to all bills
(except appropriation bills) introduced into the Parliament. A private bill
introduced by a senator or a Member of the House of Representatives may also be
accompanied by an explanatory memorandum.
2.3 Courts may use extrinsic material such as
explanatory memoranda to confirm the ordinary meaning of an Act. The Acts Interpretation Act 1901 was amended
in 1984 to define and confine the range of materials and the way in which they
may be used by the courts. Section 15AB provides that a court may use
explanatory memoranda to interpret legislation:
(a)
to
confirm that the meaning of the provision is the ordinary meaning conveyed by
the text of the provisions taking into account its context in the Act and the purpose
or object underlying the Act; or
(b)
to
determine the meaning of a provision when:
(c) the
provision is ambiguous or obscure; or
(d) the
ordinary meaning conveyed by the text of the provision taking into account its
context in the Act and the purpose or object underlying the Act leads to a
result that is manifestly absurd or is unreasonable.[4]
Guidance provided for the preparation of
explanatory memoranda
2.4 Explanatory
memoranda are generally drafted by departmental officers who are guided by the
Department of the Prime Minister and Cabinet Legislation Handbook, Legislation Circulars and the Office of
Parliamentary Counsel (OPC) Drafting Directions. The requirements specified in these documents are discussed
below.
Legislation Handbook
2.5 The
Legislation Handbook is the principle
source of information for departmental officers on the procedures involved in
making a Commonwealth Act. Chapter 8[5] of the Handbook
establishes the requirements for the preparation of explanatory material that
is to accompany a bill or amendments to a bill, that is, an explanatory
memorandum and a second reading speech. All agencies are expected to comply
with the provisions of that chapter.
2.6 The
chapter specifically states that the aim of explanatory memoranda is to assist
the reader ‘to understand the objectives and detailed operation of the clauses
of the bill’.
2.7 Paragraph 8.8 of the Handbook further
advises that an explanatory memorandum ‘must be written in plain English and
should focus on explaining the effect and intent of the bill, or the
amendments, rather than repeating the provisions. Information contained in the
explanatory memorandum must be accurate and not misleading, and must reflect
the final form of the bill to be introduced or the amendments to be moved.’ It
should include a general outline, incorporating a brief but clear statement of
the purpose and objective of the bill, an explanation of why the bill is
required, the effect of the principal provisions, the policy background, a
formal impact statement and, where required, a full regulation impact
statement.
2.8 Paragraph
8.18 covers notes on clauses. The paragraph states that ‘[n]otes on clauses are
intended to be a companion explanation to the clauses of a bill. They should
not simply repeat the words of the bill or restate them in simpler
language. The notes should explain the purpose of the clause and relate
it to other provisions in the bill, particularly where related clauses do not
appear consecutively in a bill.’ Where appropriate the notes on clauses should
give instances of their intended effect and the problem which they are intended
to address. In a number of instances, however, the committee noted that the
explanatory memorandum did not comply with these requirements as it failed
either to explain all the clauses in the bill or to provide an explanation for
a complete schedule to the bill. The committee expects that an explanatory
memorandum will explain all aspects of the accompanying bill, including the
effect of its individual clauses.
(a) The
Handbook refers to the Scrutiny of Bills Committee and its role in relation to the passage of a bill.
Paragraph 8.19 draws the drafter’s attention to the committee’s requirements,
noting that ‘[w]here a measure in a bill is likely to be the subject of comment
by the Senate Standing Committee for the Scrutiny of Bills, the reasons for
proceeding in the manner proposed in the bill should be explained in the
explanatory memorandum.’ The committee notes that guidance is provided for the
drafting of provisions that provide for commencement (either retrospectively or
on proclamation), offence provisions, discretions and the review of
administrative decisions, but the only comment on the committee’s position is
that it is opposed to the use of open-ended commencement provisions. Drafters
are not provided with any further guidance on the matters that would be subject
to comment by the committee.
(b) The
committee is of the opinion that although the Handbook provides guidance on a
number of issues that would attract its attention and comment, it does not
provide sufficient guidance to enable a departmental officer to determine
whether provisions in a bill may infringe the committee’s terms of reference.
The committee believes that an officer’s understanding of the committee’s
position on provisions that affect personal rights and liberties would be
enhanced if the Handbook included examples of the types of matters that attract
the committee’s attention in its Alert
Digests and Reports. For example,
in keeping with the Handbook, explanatory memoranda should give reasons for
providing for commencement provisions that are retrospective, unclear, extended
or that commence on proclamation and should advise whether any person would be
adversely affected by the retrospective commencement of the bill or include an
assurance that no person would be affected.
2.11 Other
examples of the types of matters that would attract the committee’s interest
and comment under its terms of reference and for which it would expect an
explanation in the explanatory memorandum include:
-
the wide
delegation of powers, such as to ‘a person’;
-
delegated
legislation that is not subject to parliamentary scrutiny by tabling and
possible disallowance;
-
strict or
absolute liability offences;
-
reversal of the
usual onus of proof;
-
curtailment of
existing rights;
-
discretions with
no merits review;
-
entry and search
provisions; and
-
technical
corrections, regulation-making powers and transitional and application
provisions.
2.12 The
above list is not exhaustive. It is an indication of the types of matters under
the committee’s terms of reference that have not been adequately explained in
the past. Departmental officers are still encouraged to continue to note any
concerns that the committee may raise in its Alert Digests and Reports.
Recommendation
The committee recommends that the
Department of the Prime Minister and Cabinet amend the Legislation Handbook to provide further guidance on the matters
that the committee considers should be addressed in explanatory memoranda,
including those matters that have been identified in paragraphs 2.10 and 2.11
of this report.
Legislation
Circulars
2.13 The
committee wrote to the Acting Parliamentary Secretary to the Prime Minister,
the Hon Peter Slipper MP, on 5 March 2003 raising concerns with the standard
of a number of explanatory memoranda. The committee noted that the core of the
problem did not appear to lie with the general principles contained in the Legislation Handbook or the Legislation
Circulars issued by the Department of the Prime Minister and Cabinet, both of
which correctly advise the relevant requirements. Instead, the disappointing
standard of some explanatory memoranda seems to relate to a failure to comply
with those requirements. The committee therefore asked whether it would be
possible to issue a more detailed Legislation Circular, ‘setting out in fuller
terms the types of matters which an explanatory memorandum should
comprehensively explain’.
2.14 On
13 May 2003, the Department of the Prime Minister and Cabinet issued Legislation Circular No. 7 of 2003 to
government agencies reminding them that guidance for the preparation of an
explanatory memorandum is set out in the Legislation
Handbook and alerting them to the concerns expressed by the committee in
its First and Second Report of 2003. In
particular, agencies were reminded that:
... where a measure in a
bill is not sufficiently explained in an explanatory memorandum, the Committee
will seek a written explanation from the responsible minister. If explanatory
memoranda accord with the Legislation Handbook and address the concerns of the
Committee, the need for the Committee to seek clarification will be reduced.[6]
2.15 The
committee believed that these measures, if implemented, would have effected
improvements in the standard of explanatory memoranda, thus enhancing their
intended role in assisting parliamentarians, administrators, the courts and the
public. The committee also expected there would be a reduction in
correspondence with ministers as a result of the improvement in the quality of
information provided in explanatory memoranda.[7] Unfortunately,
there has been no apparent improvement in the quality of the information
provided in explanatory memoranda since the circular was issued, particularly
by some departments.
Office of Parliamentary Counsel Drafting Directions
2.16 In
addition to the Legislation Handbook,
Drafting Directions are issued by OPC providing advice on any further
information that should be provided in explanatory memoranda. Drafting Direction No. 3 of 2003 is of
particular interest to the committee as it sets out the requirements for the
drafting of commencement provisions.
(a) The
drafting direction advises that a proclamation made by the Governor-General is
the preferred method of providing a discretion to fix a commencement date. In
1988 senators raised concerns with this practice as a number of Acts were
passed but then not proclaimed to commence. On 27 September 1988 the
Senate made an order of return requiring the tabling of a list of laws not
proclaimed, a statement of reasons for the failure to proclaim them and a
timetable for their operation. Senate Standing Order 139 requires the
government to table this list on or before 31 August of each year. The
Department of the Prime Minister and Cabinet has since introduced a policy that
imposes restrictions on the period within which an Act, or a provision of an
Act, may be proclaimed and requires that a commencement provision should
provide for either a period or a date to be specified after Royal Assent. The
direction specifies that:
If the specified period
option is chosen, the period should generally not be longer than 6 months. A
longer period should be explained in the Explanatory Memorandum.
If the specified date
option is chosen, there is no restriction on how long commencement may be
deferred. However, any substantial deferrals should be explained in the
Explanatory Memorandum, and it may in fact be sensible to explain the
significance of the specified date whenever this option is used.
Clauses providing for commencement by
Proclamation, but without the restrictions mentioned above, should be used only
in unusual circumstances, where the commencement depends on an event whose
timing is uncertain and generally not within the Government’s control (e.g.
enactment of complementary State legislation). Commencement provisions of this
kind should be explained in the Explanatory Memorandum.[8]
2.18 Officers who are responsible for drafting
the bills are reminded that:
[t]he Senate Standing Committee for
the Scrutiny of Bills takes an interest in delayed commencement provisions. The
Committee is aware of the policy originally adopted in the late 1980s, and
generally looks for an explanation for any commencement provision that departs
from the standard policy. If you are asked to draft a Proclamation commencement
provision that does not comply with the policy ... you should advise your
instructors of the Committee’s interest, and recommend that they explain any
departure from the policy in the Explanatory Memorandum.[9]
2.19 It
remains a matter of concern to the committee that compliance with the
requirements in the direction has not been consistent across government
agencies.
Chapter
3 - Committee
Consideration of Explanatory Memoranda
3.1 For
a number of years, the committee has expressed concern with the quality of the
information provided in explanatory memoranda accompanying bills. The committee
is concerned that there has been a deterioration in the quality of this
information in a number of explanatory memoranda either because departmental
officers have not complied with the requirements in the Legislation Handbook, Legislation Circulars and Drafting
Directions, or because insufficient information has been provided to enable the
committee to determine whether the provisions infringe its terms of
reference.
3.2 The
most prevalent problem identified by the committee was the inadequacy of the
information provided on the following matters:
-
retrospective
commencement or application of legislation;
-
unclear or
delayed commencement of legislation or part of the legislation;
-
commencement on
proclamation;
-
delegation of
powers and functions;
-
legislation by
press release;
-
provision of
absolute and strict liability offences; and
-
reversal of the onus
of proof.
3.3 The
committee is concerned that these problems continue even though the
deficiencies have been highlighted over the years in its Reports to the Senate. The committee’s concern with the quality of
the information provided on these matters is discussed below.
Retrospective
commencement or application
3.4 Retrospectivity
is always a matter of parliamentary and public interest. It is the practice of
the committee to draw attention to any bill which seeks to have retrospective
impact and it will comment adversely where such a bill has a detrimental effect
on people. For this reason, the committee has continued to insist that where
there is a proposal for legislation to have retrospective effect, the
explanatory memorandum should set out in detail the reasons that
retrospectivity is sought and whether it adversely affects any person other
than the Commonwealth.[10]
Retrospective commencement
3.5 During
2003, the committee had occasion to comment on explanatory memoranda that did
not explain the reason for the retrospective commencement of proposed
legislation. In particular, the committee raised concern with regard to the
Family Law Amendment Bill 2003, where by virtue of various items in the table
to subclause 2(1) of the bill, the amendments proposed by various items in
Schedules 4, 5 and 7 commenced immediately after the commencement of Schedule 2
to the Family Law Amendment Act 2000,
which occurred on 27 December 2000. The explanatory memorandum did not indicate
whether any of these amendments would adversely affect any person. All the
memorandum did was to refer to the fact that various items in those Schedules
were to commence immediately after the commencement of the Family Law Amendment Act 2000 (although the committee noted that
the numbering of the items in the various Schedules was not in accordance with
the numbering either later in the explanatory memorandum or in the bill
itself). The explanatory memorandum went on to assert that ‘the effect of the
actual provisions is described below’. Unfortunately, that promise was not
completely fulfilled. The explanations of the effect of the particular items in
each Schedule did not address the fact that the amendment had retrospective
effect, and did not advise whether that retrospectivity would adversely affect
any person.[11]
3.6 In
2002 the committee drew the Senate’s attention to the Superannuation
Legislation (Commonwealth Employment) Repeal and Amendment Bill 2002 which
contained a number of provisions that were to commence retrospectively. The
committee sought confirmation from the minister that these amendments would not
detrimentally affect the rights of any person. The minister responded that no
person would be adversely affected by the changes which were made to reflect
the manner in which the legislation had been administered since 1995. The
committee thanked the minister for his detailed explanation and requested that
an additional explanatory memorandum be tabled setting out the information
provided in the response. The minister agreed on 19 December
2002 to
arrange for an additional explanatory memorandum to be tabled when the bill was
next considered by the Senate.[12] The minister
tabled this document on 26 June 2003.
3.7 The
committee also sought the tabling of an additional explanatory memorandum for
the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Bill
2002[13] and
the Aboriginal and Torres Strait Islander Commission Amendment Bill 2002[14] to reflect
additional information provided by the relevant ministers in response to its
query on particular provisions in the bills. The additional information in
these instances provided background information on the current legal position
with regard to the enforceability of bargaining service fee clauses in
certified agreements and to the reason for the retrospective application of
criminal conviction and sentencing provisions in relation to the eligibility of
persons to stand for a Regional Council.
3.8 The
committee notes that an additional explanatory memorandum was not tabled with
regard to the Aboriginal and Torres Strait Islander Commission Bill as it was
amended to remove the relevant provision. The committee is disappointed,
however, to note that the information on bargaining service fees was not
included in the explanatory memorandum to the Workplace Relations Bill when it
was reintroduced in 2003.
3.9 On
other occasions the committee sought an assurance that no person other than the
Commonwealth would be affected by the retrospective commencement of the Petroleum (Timor Sea Treaty) Act 2003[15], and the Taxation Laws Amendment (Medicare Levy and Medicare Levy Surcharge) Act
2002 because the information was not provided in the explanatory memoranda.[16]
Retrospective application
3.10 The
committee noted that ‘by virtue of items 2 and 5 of Schedule 1 to the Migration
Legislation Amendment Bill (No. 1) 2002, the amendments proposed by items 1 and
4 (which concern certain rights of non-citizen children) would apply from 1
September 1994 - a period of more than 7 years before the Act was passed.
The explanatory memorandum merely stated the effect of these items but provided
no reason for their retrospective application (other than a reference to the
date on which the concept of “immigration clearance” was introduced into the Act).
In response to a request from the committee, the minister advised that the
provisions were beneficial as they clarified the status of non-citizen children
in relation to the provision of information in immigration clearance.[17] Had this
information been included in the explanatory memorandum, together with the
assurance that no person would be disadvantaged by the retrospective
application of the bill the committee’s concerns would have been satisfied,
thereby negating the need to write to the minister.
3.11 The
committee noted that by virtue of item 18 of Schedule 1 to the Taxation Laws
Amendment Bill (No. 4) 2003, the amendments proposed by that Schedule were to
apply from 1 July 2001. Unfortunately, the explanatory
memorandum did not make it clear whether this retrospective application would
adversely affect any taxpayers.[18] The committee
also noted that the explanatory memorandum to the Family and Community Services
and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures)
Bill 2003 failed to explain the reason for the retrospective application of the
amendments.[19]
3.12 By
comparison, the Safety, Rehabilitation and Compensation and Other Legislation
Amendment Bill 2000 provided an explanation for the retrospective application
of the amendments.[20]
Unclear or
delayed commencement of legislation or part of the legislation
3.13 The
committee expects that where the commencement of the proposed legislation is
unclear in the bill, the explanatory memorandum should indicate when it is expected
that the legislation will commence and why. The following are examples where
the committee sought further information from the relevant ministers because
the commencement provisions were not clearly explained in the explanatory
memoranda.
3.14 The
committee noted there was an inconsistency in commencement of the Dried Vine
Fruits (Rate of Primary Industry (Customs) Charge) Validation Bill 2001 where
the explanatory memorandum specified a date but the clause specified the
legislation commenced on Royal Assent.[21]
3.15 There
was an inadequate indication of the commencement date(s) of the Australian
Heritage Council Bill 2002 and Australian Heritage Council (Consequential and
Transitional Provisions) Bill 2002. The items in the bills indicated that the
legislation was to commence at the same time as a schedule in another bill (the
Environment and Heritage Legislation
Amendment Act (No. 1) 2002) but the explanatory memoranda gave no
indication as to whether that Act was likely to commence before or after the
bills had been debated and passed by both Houses.[22]
3.16 The
committee also sought information on the commencement of the Financial Sector
Legislation Amendment Bill (No. 1) 2002,[23] the Customs
Legislation Amendment Bill (No. 1) 2002, the Higher Education Funding Amendment
Bill 2002 and the Import Processing Charges (Amendment and Repeal) Bill 2002.[24] In each case
the explanatory memorandum failed to indicate when the bill would commence and,
if retrospective, whether any person other than the Commonwealth would be
adversely affected.
(b) The
committee expects that where commencement is delayed, the explanatory
memorandum should set out the reasons for that delay. The OPC Drafting Direction No. 3 of 2003 notes
that:
[r]ecently, the Senate
Scrutiny of Bills Committee seems to have taken the view that any significant
deferral of commencement should be explained. This includes cases in which a
guaranteed commencement is provided for, but is deferred for more than 6 months
after Royal Assent (eg commencement 12 months after Royal Assent). If your
instructors request such a provision, you should advise them to include in the
Explanatory Memorandum some sort of explanation for the length of the deferral.[25]
(c) No
explanation was provided for an eight to ten month delay in introducing customs
proposals resulting in them being applied retrospectively in the Customs Tariff
Amendment Bill (No. 2) 2001 and the Excise Tariff Amendment Bill (No. 1)
2001.[26]
3.19 The
committee noted that Schedule 2 of the Copyright Amendment (Parallel
Importation) Bill 2002 commenced 12 months after Royal Assent. The explanatory
memorandum did not comply with the drafting direction and provide a reason for
the delayed commencement. The committee raised this issue with regard to an
identical bill introduced in the previous Parliament and had received a
satisfactory response from the minister. The committee can only surmise that
the explanatory memorandum had not been checked to ensure it complied with the
drafting direction before the bill was reintroduced.
Commencement
on proclamation
3.20 Where legislation is to commence on
proclamation, the committee expects that the explanatory memorandum will be
drafted in accordance with the OPC Drafting
Instruction No. 3 of 2003 as noted in paragraphs 2.16 to 2.19 of Chapter 2.
The drafting direction particularly notes that:
If the specified period option is
chosen, the period should generally not be longer than 6 months. A longer
period should be explained in the Explanatory Memorandum.
3.21 During
2003 the committee sought advice from the relevant ministers on the reasons for
the delayed commencement being longer than 6 months for the Legislative
Instruments Bill 2003[27],
the Civil Aviation Legislation Amendment Bill 2003[28] and the
Taxation Laws Amendment Bill (No. 4) 2003.[29] The committee
is concerned that in these instances the drafters did not comply with the
drafting direction.
Delegation
of powers and functions
3.22 The
committee likes to see a limit set on either the sorts of powers that can be
delegated or the categories of people to whom they are given. It considers that
those to whom powers are delegated should be confined to the holders of
nominated offices, or to members of the Senior Executive Service, or to persons
holding specified qualifications.
3.23 The
committee raised concerns about the Age Discrimination Bill 2003 that provided
for power to be delegated to ‘another person or body of persons’. Paragraph
55(c) of the bill permitted the Human Rights and Equal Opportunities Commission
to delegate ‘all or any of the powers and functions conferred on it’ by the
proposed legislation to ‘another person or body of persons’. The explanatory
memorandum provided no explanation for this delegation. The minister advised
that the provision allowed the Commission to delegate its powers to people with
specific expertise (such as specialists in child psychology) to enable it to
undertake its responsibilities in the most effective manner. The committee
considered that the advice provided by the minister would have enhanced the
information provided in the explanatory memorandum.[30]
3.24 By
comparison, the committee commented on a government amendment to the General
Insurance Reform Bill 2001 which substituted a new paragraph 59(1)(b) that
authorised an inspector to delegate his or her powers to an APRA staff member
or to ‘a person included in a class of persons approved in writing by APRA’.
The supplementary explanatory memorandum that accompanied the amendment advised
that this wide and apparently unfettered power would allow the inspector to
call on particular expertise in carrying out an investigation.[31] Under its
remit, the committee examines all amendments passed by either House of the
Parliament and expects that the quality of the information provided in supplementary
explanatory memoranda would be the same as that required for the original
explanatory memoranda. In this instance a satisfactory explanation was included
in the supplementary explanatory memorandum.
Legislation
by press release
3.25 On 8 November 1988 the Senate resolved that:
... where the Government
has announced, by press release, its intention to introduce a Bill to amend
taxation law, and that Bill has not been introduced into the Parliament or made
available by way of publication of a draft Bill within 6 calendar months after
the date of that announcement, the Senate shall, subject to any further
resolution, amend the Bill to provide that the commencement date of the Bill
shall be a date that is no earlier than either the date of introduction of the
Bill into the Parliament or the date of publication of the draft Bill.[32]
3.26 The
committee commented on the Taxation Laws Amendment Bill (No. 5) 1994 that
introduced changes to the Income Tax
Assessment Act 1936 that would operate from the date of the press release
(12 January 1994) but the relevant legislation was not introduced until 7
December 1994 (almost 11 months later). The explanatory memorandum provided no
reason for this apparent lengthy delay in implementing the changes announced on
12 January 1994. The committee wrote to the minister pointing out
that more than 6 months had elapsed between the press release and
introduction of the bill into the Parliament. The minister advised that a draft
bill was circulated for comment on 12 July 1994. If the explanatory memorandum had
contained this information there would not have been any need for the committee
to enter into correspondence with the minister.
3.27 The
committee notes that the resolution of the Senate relates to press releases on taxation
matters. The committee will, however, comment where it appears that another
legislative initiative has been implemented following a ministerial
announcement and no reasons have been provided for backdating the legislation
to the date of that announcement.
3.28 For
example, the committee noted that by virtue of item 2 in the table to subclause
2(1) to the Crimes (Overseas) Amendment Bill 2003, the amendments proposed in
Schedule 1 commenced retrospectively on 1 July 2003. The explanatory memorandum stated
that the purpose of the retrospectivity was to enable regulations to be made
which would (in effect) make the amendments in the bill apply to Australians in
Iraq and the Solomon Islands since that date. However, the
explanatory memorandum provided no explanation for the retrospectivity. The
second reading speech indicated the reason for the date of 1 July 2003 being
chosen as the commencement date was that the Attorney-General issued a media
statement, jointly with the Minister for Justice and Customs and the Minister
for Foreign Affairs, on 26 June 2003, ‘stating that Australian criminal
jurisdiction would be extended to Australian civilians serving in Iraq from 1
July 2003.’ It therefore appeared that this bill was yet another example of
‘legislation by press release’.
3.29 In
his response, the Attorney-General advised that the date of 1
July 2003
was chosen to ensure that ‘Australians deployed to Iraq and the Solomon Islands were protected by Australian
criminal jurisdiction for the maximum period possible’ and the media release
ensured that those Australians were aware that criminal jurisdiction was to be
extended to them.[33]
The committee thanked the Attorney-General for this explanation and noted that
the inclusion of this information in the explanatory memorandum would have
assisted its examination of the bill.
Provision of
absolute and strict liability offences
3.30 Under
a strict liability offence, a person may be punished for doing something, or
failing to do something, whether or not they have a guilty intent. In other
words, someone is held legally liable for their conduct irrespective of their
moral responsibility. Such offences are rare in traditional criminal law, but
seem to have become excessive and more common as statutory offences have
developed.[34]
3.31 The
committee therefore expects that where a bill creates an offence of absolute or
strict liability, the reasons for its imposition should be set out in the
explanatory memorandum.[35]
3.32 In
the last three years, the committee has found it necessary to seek advice on
the reason for the imposition of such offences on a number of occasions. In
particular, it sought advice on the reason for providing for strict liability
offences in the Great Barrier Reef Marine Park Amendment Act 2001. The committee noted that although the explanatory memorandum explained
the effect of imposing strict liability for a criminal offence, it also
indicated that the offences created by the new sections imposed liability if
the offender failed to exercise reasonable care (or intended to commit the
relevant act). This was not borne out by the provisions themselves, which, in
stating that they created offences of strict liability, did not oblige the
prosecution to prove any mental state on the part of the accused. The committee
therefore sought advice as to whether the explanatory memorandum and the bill
were consistent on the issue of strict liability, and why it was appropriate
that strict liability be imposed in relation to the nominated offences. The
minister provided an explanation for the imposition of these offences.[36]
3.33 The
committee also sought further advice on the provision of strict liability
offences in the Financial Sector Reform Bill 2001[37], the Medical
Indemnity Bill 2002[38],
the Financial Sector Legislation Amendment Bill (No. 2) 2003[39], the
Workplace Relations Amendment (Registration and Accountability of
Organisations) Bill 2002[40], the Border
Security Legislation Amendment Bill 2002[41], the Health and Aged Care Legislation Amendment
(Application of Criminal Code) Act 2001[42], the
Migration Legislation Amendment Bill (No. 1) 2002[43] and the Quarantine Amendment Act 2002.[44]
3.34 The
Proceeds of Crime (Consequential Amendments and Transitional Provisions) Bill
2002 provided for absolute criminal liability in new sections dealing with
proceeds of crime in varying amounts. The committee was concerned that no
explanation for the imposition of this liability had been included in the
explanatory memorandum and wrote to the minister seeking an assurance that this
offence provision was appropriate for the circumstances in which it would be
applied.[45]
3.35 In
contrast to the above bills, the committee found that although the Cybercrime
Bill 2001 provided for offences of absolute liability, the explanatory
memorandum explained the reason for the imposition of this offence.
3.36 There
are occasions when explanatory memoranda provide information on provisions but
the explanation is not sufficient for the committee to determine whether they
infringe its terms of reference. For example, the committee noted that the
explanatory memorandum to the Law and Justice Legislation Amendment
(Application of Criminal Code) Bill 2000 provided an explanation for the
application of absolute and strict liability offences but it did not go far
enough to satisfy the committee’s concerns and the minister was asked to
provide background on the reasons for the decision to make strict liability
offences in this legislation to resolve uncertainty.[46]
Reversal of
the onus of proof
3.37 Where
provision has been made in legislation to reverse the usual onus of proof, the
committee expects that the explanatory memorandum should justify this decision.
3.38 In
2001, the committee noted that the explanatory memoranda to the Financial
Services Reform Bill 2001 and the Criminal
Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 did
not respectively explain why it was necessary to reverse the onus of proof,
imposing an evidential burden on a defendant charged with an offence relating
to insider trading[47]
or placing a burden on a defendant to raise issues of the content of foreign
law.[48]
Other
matters
3.39 The
committee also noted that, in addition to the above matters, a number of
explanatory memoranda failed to provide reasons for:
- curtailing existing rights with no
provision being made for merits review of the discretions;
- extending the commencement period of
the bill;
- removing protection provided by
derivative-use immunity;
- including search and seizure
provisions with no indication whether the committee’s Fourth Report of 2000: Entry
and Search Provisions in Commonwealth Legislation was taken into account
when formulating the provisions;
- not subjecting delegated legislation
to parliamentary scrutiny by providing for tabling and possible disallowance;
- not subjecting provisions to review
under the Administrative Decisions
(Judicial Review) Act 1977; and
- not setting an upper limit on levies
in primary legislation.
3.40 In other instances, the committee found
explanatory memoranda:
- made no reference to the relevant
provision, while in others only a brief inadequate explanation was given;
- presented information in a technical
manner which did little to explain the proposed operation of the bills but
merely repeated their provisions; and
- obscured or omitted material relevant
to its terms of reference.
(d) The
lack of information in the above instances resulted in subsequent
correspondence between the committee and the relevant ministers, correspondence
which might have been avoided had there been an appropriate explanatory
memorandum to accompany the bill.
A Private
Senator’s Bill
(e) Most
of the bills considered by the Parliament are government bills introduced by
ministers. Senators and Members of the House of Representatives may, however,
introduce bills to change existing laws or to introduce new legislative
initiatives. These bills are known as either a Private Senator’s Bill or a
Private Member’s Bill. In most instances, these bills are accompanied only by a
second reading speech. The committee’s consideration of these bills is assisted
if they are accompanied by explanatory memoranda. The committee therefore
suggests that there may be merit in the Department of the Senate developing a
set of guidelines to assist senators in the preparation of private bills. These
guidelines would act as a trigger to inform senators of the types of material
that should be included with their bills when tabled, such as explanatory
memoranda.
Recommendation
The committee recommends that the
Department of the Senate develop a set of guidelines to assist senators in the
preparation of private bills.
(f) The
committee makes no comment on the manner in which private bills are prepared by
Members of the House of Representatives.
Conclusion
(g) Explanatory
memoranda are essential to the understanding of the purpose and operation of
proposed legislation. Although the committee has often commented adversely on
the quality of explanatory memoranda, it should be noted that, on occasion, it
has commented on those that have effectively addressed the content of the bill.
One such case was the explanatory memorandum to the Customs Legislation
Amendment Bill (No. 2) 2003.
(h) As
highlighted in this chapter, an increasing number of explanatory memoranda have
failed to provide sufficient information to enable the committee to determine
whether provisions in the bills infringe its terms of reference. In most cases,
after the minister responded to a request for further information, the
committee was satisfied that the provisions met its requirements.
(i) The
committee is concerned that it has to continually seek information from
ministers that should have been included in the explanatory memoranda. Some
departments regularly attract the attention of the committee even though
previous Reports to the Senate
expressed concern with the quality of the explanatory memoranda that
accompanied their bills. In most instances, the officer responsible for
preparing the explanatory memoranda appears not to have complied with the
requirements as set out in the Legislation
Handbook and OPC Drafting Direction
No. 3 of 2003. On other occasions, although information was provided, it
was not sufficiently detailed to allow the committee to satisfy itself that the
provisions did not affect personal rights and liberties. The only conclusion to
be drawn is that quality control checks on the final explanatory memoranda are
inadequate or ineffective.
Chapter
4 - Improving
the Quality of Explanatory Memoranda
(a) Explanatory
memoranda fulfil an important role in the legislative process. The quality of
the information provided in these documents enhances the transparency of the
legislative process, the quality of the legislation and the ability of people
to read and understand the laws passed by the Parliament. The standard of
information provided by these documents is therefore an issue of concern to the
committee, the Parliament, the courts and the public.
4.2 The
committee and senators look to explanatory memoranda to clearly explain the
operation and impact of legislative provisions. In the committee’s experience,
as highlighted in Chapter 3, there continues to be a number of explanatory
memoranda that do not fulfil this purpose. The committee therefore believes
that steps should be taken to improve the quality of the information provided
in these documents.
Measures to improve the quality of
explanatory memoranda
4.3 The
committee does not believe there is a single solution to address the problem
with the drafting quality of explanatory memoranda but proposes that consideration
be given to implementing the following measures.
Guidance
for officers preparing explanatory memoranda
(b) The
committee notes in Chapter 2 that the guidance provided to departmental
officers responsible for preparing explanatory memoranda is spread across three
different documents - the Legislation Handbook, Legislation
Circulars and Drafting Directions.
Departmental officers who prepare explanatory memoranda are required to refer
to the three publications to ensure that they have met all the requirements for
preparing an explanatory memorandum. The committee considers there may be merit
in bringing these guidelines together into one source document, preferably the Legislation Handbook. This publication
is the primary source of information for the legislative process and the
consolidation of the advice into this document would provide greater assistance
to officers, particularly if they are new to the legislative process and under
pressure to develop legislation within a tight timeframe.
Recommendation
The committee recommends that
information relevant to the preparation of explanatory memoranda currently
contained in the Legislation Handbook,
Legislation Circulars and OPC Drafting Directions, be consolidated into one primary source of information, namely the
Legislation Handbook.
Other
measures
(c) On
5 March 2003, the committee sought comment from the former First Parliamentary
Counsel, Ms Hilary Penfold QC, on the committee’s concerns with the quality of
explanatory memoranda and sought any further suggestions that may help to
ensure a satisfactory standard of these documents. Ms Penfold advised that
OPC’s experience with the officers who prepare these documents suggested that
there may be more fundamental problems underlying the failure to prepare
satisfactory explanatory memoranda beyond non-compliance with the requirements
in the Legislation Handbook, these
being the level of experience of the officers preparing explanatory memoranda
and the time available to prepare these documents.
(d) The
committee’s examination of explanatory memoranda also indicates that there is a
problem with the apparent lack of quality control checks on the final product.
Recommendation
The committee
recommends that, before a bill is introduced into the Parliament, an appropriately
qualified person should check the explanatory memorandum accompanying that bill
to ensure it explains fully the effect and operation of the proposed
legislation and complies with the requirements contained in the Legislation Handbook, as amended.
Experience of
instructors responsible for preparing explanatory memoranda
4.7 The
First Parliamentary Counsel noted that from its experience with instructors
over the years, OPC’s perception is that the responsibility for legislative
work has been delegated to staff whom they have found tended to be
‘inexperienced in legislative work’ and received ‘little in the way of guidance
and training from their supervisors’. [49]
4.8 Ms Penfold further noted that:
... many
of our instructors have little or no previous instructing experience, and the
experience (if any) of more senior agency staff is not applied to the agency’s
legislative projects. Since the people we deal with as instructors are usually
the same people who prepare EMs, presumably this lack of experience in legislative projects
affects the quality of EMs as well. [50]
4.9 Ms Penfold suggested that, given the level of
experience of the instructors OPC has encountered in government agencies, there
would be merit in developing a course dealing with the preparation of
explanatory memoranda. The committee supports this suggestion and believes
consideration should be given to whether it be conducted within each government
agency or offered as a course across the public service. The committee
acknowledges that, as the coordinator of the legislative process, the
Department of the Prime Minister and Cabinet may be the best agency to develop
a training course that would cover the wider public service.
Recommendation
The committee recommends that
consideration be given to developing a course to train departmental officers in
the preparation of explanatory memoranda.
Timing of
bills
4.10 Another
area that the First Parliamentary Counsel identified as impacting on the
quality of explanatory memoranda is the timing of the legislative program where
the deadlines for lodging explanatory memoranda are the same as that for
lodging bills with the Department of the Prime Minister and Cabinet. Given the
tight deadlines for many legislative initiatives, ‘bills are often finished
right on those deadlines (or after them), so the scope for any final polishing
of explanatory memoranda is in many cases non-existent’.[51] Explanatory
memoranda examined by the committee that provided insufficient information or
provided information with the provisions as previously drafted and not as
amended may be a result of these tight deadlines. A recent example of this
problem occurred with the Family Law Amendment Bill 2003 where the committee
noted that the numbering of the items in the various Schedules was not in
accordance with the numbering either later in the explanatory memorandum or in
the bill itself. The minister noted:
... that the numbering of
the commencement provisions in the Bill and the body of the Explanatory
Memorandum is correct. However, there is an error in paragraphs 4 & 5 of
Clause 2 of the Explanatory Memorandum where a summary of commencement dates is
provided. A draft Correction to the Explanatory Memorandum in relation to this
is attached for information.[52]
The Minister tabled a correction to
this explanatory memorandum but only after the bill had passed the House of
Representatives and had been introduced into the Senate.
4.11 The
committee acknowledges that the deadlines in the legislative process may leave
little time for the drafting or finalisation of explanatory memoranda,
particularly when a bill is considered to be urgent. As a result of these
deadlines, explanatory memoranda may be tabled that do not accurately reflect
the bill or do not provide sufficient information to explain the provisions of
the bill. Notwithstanding that there may be pressure to introduce bills,
explanatory memoranda should be checked by an appropriately qualified person to
ensure they comply with the requirements in the Legislation Handbook.
Conclusion
4.12 This
report highlights the difficulties the committee has experienced in its
examination of proposed legislation when the information provided in
explanatory memoranda has not been of a quality to sufficiently explain the
purpose and operation of the bills. The reasons for this inadequacy cannot be
explained solely by non-compliance with the requirements of the Legislation Handbook or the guidance
provided by that publication. As discussed above, the level of experience of
the instructors, the legislative process and the standard of the checking
undertaken by the departments also impacts on the quality of the information
provided in the final explanatory memoranda.
(a) The
committee recognises that the responsibility for the quality and accuracy of
explanatory memoranda rests with the relevant ministers. The committee
therefore draws their attention to the concerns raised in this report and to
its recommendations for improving the quality of explanatory memoranda.
(b) This
report has been prepared with the expectation that it will improve the quality
of the information provided in explanatory memoranda thus enhancing the transparency
of the legislation introduced into the Parliament. Ministers and the Department
of the Prime Minister and Cabinet are strongly urged to note the committee’s
concerns and to implement its recommendations, thus ensuring future explanatory
memoranda meet the requirements of the Legislation
Handbook, as amended, and fully explain the objectives and operation of
proposed legislation. Consideration may need to be given to implementing
additional measures if explanatory memoranda continue to fail to meet the
standards expected by the committee.
Trish Crossin
Chair