Footnotes

CHAPTER 1 - Introduction

[1]        See appendix two for the 2010 inquiry terms of reference.

[2]        The changes in the terms of reference were primarily as a result of developments in these areas, discussed further in Chapter 3, The committee's approach to its work.

[3]         https://www.aph.gov.au/Senate/committee/scrutiny/future_direction_2010/interim_report/index.htm, p.1.

CHAPTER 2 - History and outline of the work of the Scrutiny of Bills Committee

[1]        Senate, Hansard, 19 November 1981, pp 2418-2428.

[2]        Senate Standing Order 36AAA, which later became Standing Order 24.

[3]        Senate, Hansard, 17 March 1987, pp 775-776.

[4]        Journals of the Senate, No.122, 3 September 1997, p. 2419.

[5]        Submission 20 [2011], p. 3.

[6]        Submission 12 [2010], p. 2.

[7]        Submission 12 [2010], p. 3.

[8]        Submission  7 [2011], p.1.

[9]        Rule of Law Institute of Australia, 'ROLIA commends Senate Scrutiny of Bills Committee for upholding the rule of law', Press Release, 8 March 2011, available at: <http://www.ruleoflawaustralia.com.au/Downloads/Press_release_vocation__education_bill.pdf >

[10]      Submission  21 [2011] p. 1.

[11]      Submission 6 [2011], paragraph 8.

[12]      Submission 9 [2011], p. 1.

CHAPTER 3 - The Committee's approach to its work

[1]        Submission 11 [2011], p. 2.

[2]        For example, see Alert Digest No. 2 of 2011, Combating the Financing of People Smuggling and Other Measures Bill 2011 and Alert Digest No. 1 of 2006, Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005.

[3]        For example, see Alert Digest No. 1 of 2011, Human Services Legislation Amendment Bill 2010.

[4]        For example, see Alert Digest No. 1 of 2011, Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Bill 2010.

[5]        For example, see Alert Digest No. 1 of 2011, Stronger Futures in the Northern Territory Bill 2011.

[6]        For example, see Alert Digest No. 14 of 2011, Defence Trade Controls Bill 2011.

[7]        The Committee presented its report to the Australian Government on 30 September 2009. See http://www.humanrightsconsultation.gov.au/ for details.

[8]        https://www.aph.gov.au/Senate/committee/scrutiny/future_direction_2010/interim_report/index.htm, p.1.

[9]        Submission 11 [2011], p. 4.

[10]      Submission made by letter from Senator Helen Coonan, then chair of the Scrutiny of Bills Committee, to Senator Trish Crossin, chair of the Senate Legal and Constitutional Affairs Committee, dated 28 October 2010, p. 3.

[11]      Senate Legal and Constitutional Affairs Standing Legislation Committee report of 28 January 2011 into the Human Rights (Parliamentary Scrutiny) Bills, p. 112.

[12]      Submission 11 [2011], 2012 Supplementary submission, p. 5.

[13]      Senate Legal and Constitutional Affairs Standing Legislation Committee report of 28 January 2011 into the Human Rights (Parliamentary Scrutiny) Bills, p. 112.

[14]      Submission. 15 [2011], p. 2.

[15]      Submission 12 [2010], p. 11. See also the views of the Law Council of Australia Submission 19 [2010], the Rule of Law Association of Australia Submission 7 [2011] , former senator Mr Michael Tate Submission 2 [2010] and Uniting Justice Australia Submission 8 [2010].

[16]      See for example, Law Council of Australia, Submission 6 [2011], paragraphs 133 and 134, p. 27 and Australian Lawyers for Human Rights, Submission 24a [2011], p. 5.

[17]      Submission 20 [2010], p. 2.

[18]      Submission 20 [2010], p. 2.

[19]      Submission 15 [2011], p. 2.

[20]      Submission 20 [2010], p. 2. The view in relation to inquiries is echoed by others, including Mr Andrew Murray, who suggests that more inquiries should be undertaken, and that  recommendations for topics could be invited: submission 12 [2010], p. 2. In relation to suggesting amendments the Rule of Law Association of Australia also supports former Senator Murray's view that amendments could be proposed by the committee: submission 7 [2011], p. 3.

[21]      Submission 1, [2010] p. 3.

[22]      Submission 9 [2010] pp. 3 and 4. The primary focus of this submission was on whether the committee should have a wider remit to consider human rights issues, but this was a comment which was made in relation to the committee's work more generally.

[23]      Submission 11 [2011], 2012 Supplementary submission, p. 2.

[24]      See, for example, First Report of 2012, Customs Amendment (Military End-Use) Bill 2011 in relation to merits review and parliamentary scrutiny, pp. 5 and 6. In relation to this bill the committee had 'request[ed] that the bill be amended to require annual reporting to Parliament on the exercise of the discretionary power in paragraph 112BA and [sought] the Minister's advice as to whether the bill can be amended to this effect'. The Minister replied to the committee that: 'I have written to the Minister for Home Affairs to seek his agreement with your recommendation...'.

[25]      Submission 20 [2010] p. 2.

[26]      Submission 20 [2010] p. 2.

[27]      Submission 20 [2010], p. 6.

CHAPTER 4 - Committee powers and sanctions

[1]        For example, Professor Saunders observed that the Scrutiny of Bills Committee 'has been the main catalyst for acceptance of the principle that proposed legislation should meet certain basic standards that might broadly be equated with the rule of law': Submission 9 [2011], p. 1.

[2]        Submission 13 [2010], p. 1.

[3]        Submission 19  [2011], p. 3.

[4]        Discussed in Chapter 3, Committee's approach to its work,.

[5]        This has not been a feature of the committee's experience during recent years, but it is clear from comparing the committee's Alert Digests (initial committee comments) and Reports (in which responses received from Ministers are published) that there have been periods in which Ministers 'commonly failed to respond to the committee'. This was commented on by the Castan Centre for Human Rights Law, Submission 9 [2010], p. 3.

[6]        Castan Centre for Human Rights Law, Submission 9 [2010] pp. 3 and 4.

[7]        Submission 12 [2010], p. 12.

[8]        The committee also notes former senator and former committee member, the Reverend Michael Tate's, related suggestion (originally made in the context of government human rights consultations), to amend standing order 24(i)(a) to change the verb 'report' to 'declare', 'thus equating its function closer to the making of declaration of compatibility or incompatibility: Submission 2 [2010], p. 4.

[9]        Submission 20 [2010], p. 4.

[10]      Submission 20 [2010], p. 4.

[11]      Submission 20 [2010], p. 6.

[12]      See Chapter 3, Committee's approach to its work.

[13]      Submission 20 [2010], p. 6.

[14]      Submission 1 [2011] p. 11. See also Law Council of Australia: submission 19 [2010], p. 17. Rule of Law Association of Australia: submission 7 [2011] p.5 in relation to seeking submissions and oral evidence. Mr Bernard Cooney that standing order 24(7) 'be amended by adding after the phrase "in private" the words "or in public.' Submission 10 [2011], p. 2.This would have the effect of allowing the committee to meet in public in relation to is supported by other submitters (Queensland Law Society, Submission. 21 [2011], p. 2.) The Law Society of Australia also suggests that the committee be given a specific power to conduct public hearings and to take evidence in public. Submission 6 [2011], p. 4.

[15]      See Chapter 5, Framework bills and Chapter 6, Uniform legislation, below.

[16]      See for example, the Law Council of Australia Submission 19 [2010], p. 5, NSW Young Lawyers Human Rights Committee Submission 18 [2010], p. 3, and  Civil Liberties Australia, Submission 7 [2010], p. 6.

[17]      The time for reporting is set by the Selection of Bills Committee, subject to the approval of the Senate as a whole.

[18]      Submission 20 [2010], p. 2.

[19]      Submission 20 [2010], p. 6.

[20]      Submission 33 [2010], p. 3. The submission notes that 'These powers have been granted on a case-by-case basis', but that 'consideration could be given to each of these differences and the need for their retention'.

CHAPTER 5 - Framework bills

[1]        Submission 19 [2010], p. 29.

[2]        Senate Procedure Committee, First report of 2010, April 2010, p. 1.

[3]        An idea reflected in Submission 3A [2011], p. 1.

[4]        Submission 20 [2010], p. 7.

[5]        Journals of the Senate, No. 91, 16 September 2009, p. 2505.

[6]        Submission 19 [2010], p. 29.

[7]        Submission 19 [2010], pp. 29–30.

[8]        Submission 19 [2010], p. 30.

[9]        Submission 19A [2011], p. 1.

[10]      Submission 20 [2010], p. 7.

[11]      See, for example, consideration of the Carbon Credits (Carbon Farming Initiative) Bill 2011 in Senate Scrutiny of Bills Committee, Sixth Report of 2011, 22 June 2011, pp. 274–276, and the Renewable Energy (Electricity) Amendment Bill 2009 in Senate Scrutiny of Bills Committee, Ninth Report of 2009, 19 August 2009, pp. 326–327.

[12]      Senate Procedure Committee, First report of 2010, April 2010, p. 1.

[13]      Submission 20 [2010], p. 7, and confirmed in the Clerk's 2011 comments, Submission 15 [2011], p. 2.

[14]      The Procedure Committee has encouraged legislation committees, on a case-by-case basis, to consider whether deferral of a bill in the absence of draft regulations is warranted (Senate Procedure Committee, First report of 2010, April 2010, p. 1).

[15]      Submission 33 [2010], p. 3.

[16]      Submission 20 [2010], p. 7.

[17]      Submission 19 [2010], p. 29.

[18]      Submission 33 [2010], p. 2. In relation to the Selection of Bills Committee suggestion, see also the submission of Ms Janice Paull, Submission 25 [2010], p. 7.

[19]      http://www.parliament.uk/business/committees/committees-a-z/lords-select/merits-of-statutory-instruments-committee/role/

[20]      http://www.parliament.uk/business/committees/committees-a-z/lords-select/merits-of-statutory-instruments-committee/role/tofref/

[21]      Submission 20 [2010], p. 7.

[22]      Submission 20 [2010], p. 7.

[23]      s 17(1), Legislative Instruments Act 2003

[24]      s 17(2), Legislative Instruments Act 2003

[25]      Submission 33 [2010], p. 2.  See also Senate Regulations and Ordinances Committee, Consultation under the Legislative Instruments Act 2003 – Interim Report, 113^th Report, June 2007.

CHAPTER 6 - Uniform legislation

[1]        Western Australian Legislative Council Standing Committee on Uniform Legislation and Statutes Review, Information report: scrutiny of uniform legislation, June 2011, p. 4.

[2]        Western Australian Legislative Council Standing Committee on Uniform Legislation and Statutes Review, Information report: scrutiny of uniform legislation, June 2011, p. 4.

[3]        Western Australian Legislative Council Standing Committee on Uniform Legislation and Statutes Review, Information report: scrutiny of uniform legislation, June 2011, pp 4–5.

[4]        Western Australian Legislative Council Standing Committee on Uniform Legislation and Statutes Review, Information report: scrutiny of uniform legislation, June 2011, p. 5.

[5]        Western Australian Legislative Council Standing Committee on Uniform Legislation and Statutes Review, Information report: scrutiny of uniform legislation, June 2011, p. 5.

[6]        Western Australian Legislative Council Standing Committee on Uniform Legislation and Statutes Review, Information report: scrutiny of uniform legislation, June 2011, pp 6 and 9–10.

[7]        The Rule of Law Institute of Australia issued a media release dated 8 March 2011 commending the committee for its 'assiduous reporting' of rule of law concerns about provisions of the bill.

[8]        In response, a remedial bill was introduced in the Senate on 24 August 2011.

[9]        Department of the Senate, Procedural Information Bulletin, No. 249, 28 March 2011, p. 1.

[10]      Senator Bishop is also a member of the Scrutiny of Bills Committee.

[11]      Senate Economics Legislation Committee, Submission 22 [2011].

[12]      Submission 22 [2011], pp. 4 and 5.

[13]      Submission 23 [2011].

[14]      Submission 23 [2011], p. 2.

[15]      Under the auspices of the Senate Standing Committee on Regulations and Ordinances and the Senate Standing Committee for the Scrutiny of Bills, the Working Party of the Chairs of Scrutiny of Legislation Committees published the Scrutiny of National Scheme Legislation and the Desirability of Uniform Scrutiny Principles July 1995, paragraph 2.18, p. 22.

[16]      Scrutiny of National Scheme Legislation and the Desirability of Uniform Scrutiny Principles July 1995, paragraph 2.25, p. 24.

CHAPTER 7 - Communication

[1] Submission 20 [2010], p. 4.

[2]        Submission 23 [2011], p.1.

[3]        Most advice to this effect has been received informally, however, note that the Chair of the Community Affairs Legislation Committee, Senator Claire Moore, made a submission to the inquiry, which noted that her committee '...also supports the distribution of Alert Digests and Reports to committees when they contain comments on bills in those committees' portfolios of interest': Submission No. 23 [2011], p. 1.

[4]        Submission  20 [2010], p.5. In her 2011 submission to the current inquiry the Clerk added to this with the view that: 'I commented on some of the committee's recent innovations in its increased interaction with legislation committees...and it is pleasing to see that those innovations have taken root': Submission 15 [2011], p. 1.

[5]        Submission 20 [2010], p. 4.

[6]        See the discussion at Submission 20 [2010], p. 4

[7]        Submission 20 [2010], p. 5.

[8]        Submission 19 [2011], p. 2.

[9]        Submission 20 [2010], p. 5.

[10]      23 November 2011, paragraphs 1.15 and 1.16, https://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=scrutiny/future_direction_2011/interim_report/index.htm.

[11]      Submission 20 [2010], p. 5.

[12]      Submission 11 [2011], 2012 Supplementary submission, p. 10.