CHAPTER 1

A PROFILE OF THE COMMITTEE

Functions of the Committee

The Senate Standing Committee for the Scrutiny of Bills carries out the following functions.

1. It reports 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) makes 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.

2. It alerts the Senate to the risk that particular pieces of primary legislation may infringe one or more of these guidelines.

3. It notifies the proposer of the legislation, usually a Minister, of that risk and seeks from him or her a response to this notification.

4. It reports to the Senate the notification it gives to the legislation's proposer and the response it receives from him or her.

5. It makes the material it reports to the Senate available to other interested institutions and people.

6. It receives and considers matters relevant to its work raised by institutions and people whether inside or outside Parliament.

Powers and Structure of the Committee

The powers and structure of the Committee are set out Standing Order 24:

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.

(2) (a) The Committee shall consist of 6 Senators, 3 being members of the Government party nominated by the Leader of the Government in the Senate, and 3 being Senators who are not members of the Government party, nominated by the Leader of the Opposition in the Senate or by any minority groups or independent Senators.

(b) The nominations of the Opposition or any minority groups or independent Senators shall be determined by agreement between the Opposition and any minority groups or independent Senators, and, in the absence of agreement duly notified to the President, the question of the representation on the Committee shall be determined by the Senate.

(3) The Committee may appoint sub-committees consisting of 3 or more of its members, and refer to any such sub-committee any matters which the Committee is empowered to consider.

(4) The Committee shall elect as Chairman a member appointed to the Committee on the nomination of the Leader of the Opposition in the Senate.

(5) The Chairman may from time to time appoint a member of the Committee to be Deputy Chairman, and the member so appointed shall act as Chairman of the Committee when there is no Chairman or the Chairman is not present at a meeting of the Committee.

(6) When votes on a question before the Committee are equally divided, the Chairman, or the Deputy Chairman when acting as Chairman, shall have a casting vote.

(7) The Committee and any sub-committee shall have power to send for persons and documents, to move from place to place, and to meet in private session and notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives.

(8) The Committee may appoint with the approval of the President counsel to advise the Committee.

(9) The Committee may report from time to time its proceedings and evidence and any recommendations, and shall make regular reports of the progress of the proceedings of the Committee.

Machinery of Scrutiny

Three agents

Three agents drive the machinery of scrutiny. They are the Senate Committee, the legal adviser and the secretariat [1].

Two publications

The Committee regularly publishes two documents: the Alert Digest and the Report.

Preparation of the Alert Digest

The Secretariat collects copies of all bills introduced into Parliament and sends them to the legal adviser on the Friday of each sitting week. Over the weekend he peruses them and tests each against the five criteria set out in Standing Order 24 (1)(a). On the following Monday he sends a written report to the Secretariat advising whether or not each bill examined infringes one or more of the criteria and, if so, in what way.

On the basis of the legal adviser's report the Secretariat drafts an 'Alert Digest' for the Senate Committee to consider and settle on the following Wednesday morning.

The Committee assures itself that the Digest expresses its views and releases that document for tabling in the Senate and for distribution amongst Senators and other people and institutions who may wish to read it.

Letters to Ministers

Where the Committee considers a bill might infringe one of its criteria it has the Secretariat prepare a letter which is then sent to the relevant Minister for such comment as he or she may be advised to make.

Preparation of Report

At its Wednesday meeting the Committee considers any replies Ministers have sent to it in response to its letters to them.

It then settles a report to the Senate setting out correspondence between itself and the relevant Ministers and expressing its opinion as to whether, in the light of that exchange, the legislation under consideration may or may not infringe the criteria.

The report as agreed by the Committee is then presented to the Senate and copies made available to all Senators and other interested people and institutions.

Terms of advice

The Committee advises Senators and other readers of its reports of any risk that particular bills may infringe one or more of its criteria. It does not express an opinion that a proposed law categorically does so. Its task is to draw the Senate's attention to legislation which, if passed, might unduly diminish or even take away a person's rights and liberties or inappropriately lessen Parliament's control over its legislative function. Their attention having been drawn to that risk, it is for them to make up their own mind about the matter, hopefully taking into account the reasoning and opinion of the Committee.

History of the Committee's Establishment

The Chaney proposal

On 9 June 1978, on the motion of Senator Fred Chaney, the Senate referred to the Standing Committee on Constitutional and Legal Affairs the following matter:

The desirability and practicability of referring all legislation introduced into the Parliament to a committee of the Senate for the purpose of its examining the legislation and reporting to the Senate as to whether there are provisions in the Bills, whether by express words or otherwise, which:

(a) place the onus of proof on a defendant in a criminal prosecution;

(b) confer a power of entry on to land or premises other than by warrant issued according to law;

(d) confer a power to seize goods other than by warrant issued according to law;

(e) purport to legislate retrospectively;

(f) delegate authority to amend any Act of the Parliament of the Commonwealth, or to create exemptions from the operation of any such Act, by means of subordinate legislation;

(g) authorise administrative decisions affecting the rights and liberties of the subject without prescribing objective criteria to govern such decisions or without providing a right of appeal to a Court or competent Tribunal;

(h) affect the liberty of the subject by controls upon freedom of movement, freedom of association, freedom of expression, freedom of religion or freedom of peaceful assembly; or

(i) otherwise trespass unduly on personal rights and liberties, or make the rights and liberties of citizens dependent upon administrative rather than judicial decisions. [2]

Recommendations

After an inquiry, the Constitutional and Legal Affairs Committee tabled its Report on Scrutiny of Bills on 23 November 1978. [3] It proposed the establishment of a parliamentary committee to maintain a watching brief on all bills introduced into the Parliament. It recommended that the relevant committee should highlight provisions in bills which have an impact on individuals, either by interfering with their rights or by subjecting them to the exercise of an undue delegation of power.

Criteria

The Constitutional and Legal Affairs Committee recommended that the proposed committee should examine the clauses of all bills introduced into the Parliament to see whether they, by express words or otherwise:

(i) trespassed unduly on personal rights and liberties;

(ii) made rights liberties and obligations unduly dependent on insufficiently defined administrative powers or non-reviewable administrative decisions; or

(iii) inappropriately delegated legislative power or insufficiently subject its exercise to parliamentary scrutiny. [4]

Reception of Report

The Constitutional and Legal Affairs Committee brought down its report on 23 November 1978. Yet it was not until 25 May 1982 that its recommendations were fully adopted. The Government had considerable misgiving about the proposals. So did a number of Senators.

On 19 November 1981, in debating the issue of whether a standing committee ought be set up, the then Attorney-General Senator Durack demonstrated the feelings of a number of people when he said:

I believe that many practical problems may emerge if this committee is set up. For all these reasons the Government is opposed to it. As I have said, the Government is opposed only to these matters being considered in the way that is proposed in the motion. It is not, of course, in any way to be taken to be opposed to the need for very alive and earnest consideration to be given to questions of such great importance as those relating to the personal rights and civil liberties of people affected by legislation. [5]

Senators Chaney, Missen and Tate

Senator Chaney, who initiated the move towards a scrutiny committee in 1978, had become a member of the Ministry by 1981 and, as such, was obliged to oppose the motion for its creation. Senator Missen became the driving force for its establishment much encouraged by Senator Tate.

Creation of the Committee

On 17 November 1981 Senator Missen from the Liberal Party moved and Senator Tate from the Labor Party seconded a motion instituting a Senate “Standing Committee for the Scrutiny of Bills”. The motion was debated on that date and debated and agreed to on 19 November 1981 with an amendment to the original motion. As a result of that amendment, the Senate agreed to the setting up of a committee on a trial basis for six months. Its members were to be the same as those of the Constitutional and Legal Affairs Committee. On the basis of that trial they were to report to the Senate on the need, or otherwise, for a separately constituted Standing Committee.

The trial - Senator Macklin - Senator Hamer

Senator Macklin speaking on behalf of the Australian Democrats said on 19 November 1981:

I would like to say briefly that the Australian Democrats are attracted to the notion of the scrutiny of bills coming into this place in relation to undue violation of human rights. The problem that we had with it I think is amply satisfied by the suggestions of Senator Hamer in that we were concerned at the practicality of the matter and feel that the method of sending it to the Senate Standing Committee on Constitutional and Legal Affairs should, indeed, enable us to have a fair and adequate estimation of what might happen, or what might be seen to be happening in future to a committee which has to undertake a task such as this. We believe that by allowing the Bills in the autumn session to undergo this type of scrutiny by the Standing Committee on Constitutional and Legal Affairs, that Standing Committee will be well placed at the time set down in the motion of Senator Hamer to advise the Senate on the need, if any, for a separate standing committee. I believe that in this way we are able to accept the principle and also to test the practicality. It is an admirable compromise and we support it whole-heartedly. [6]

Creation of a discrete committee

By 25 May 1982 the Senate was satisfied of the need for a discrete standing committee for the scrutiny of bills. One was established by a resolution passed on that day. [7] It was called, and has been known ever since, as the “Senate Standing Committee for the Scrutiny of Bills”.

Entrenching the Committee

The Standing Committee for the Scrutiny of Bills was first brought into existence by a resolution of the Senate. Following that it was sustained by a sessional order. This meant it had to be set up afresh every time a new Parliament was elected. Then on 17 March 1987 it became a permanent committee when the Senate adopted Standing Order 36AAA. This became Standing Order 24 when the Standing Orders were renumbered on 21 November 1989. It is on this basis the Committee presently operates.

Some later comments - the Tenth Anniversary

Professor Dennis Pearce, the Committee's first legal adviser, said on the occasion of the Committee's tenth anniversary seminar on 25 November 1991:

The resistance ... was quite extraordinary. The Government had, pursuant to the ordinary arrangements that existed, the standard arrangements, responded to the [Constitutional and Legal Affairs] Committee's proposal and it opposed the establishment of this Committee. But the resistance to this suggestion was so great that you even find the Opposition refusing to allow Senator Missen [the Committee's first Chairman] to table the Government's response to the Legal and Constitutional Affairs Committee's proposals. And this was done not once but twice.

It really was quite remarkable that the Senate seemed to be worried by the thought that it might be able to engage in informed legislating. There was a problem in relation to the joint committee proposal and there was a problem in relation to the timing proposal. But they seemed to be used as much as anything to resist this notion that a parliamentary committee should actually begin to identify problems relating to legislation that were recognised as being inappropriate in delegated legislation.

Two more years went by and Senator Missen again moved to establish the Committee. He had had various forays along the way. He was supported, very strongly, in November 1981, by Senator Tate. The Government was still opposed to this proposal - this radical and wicked proposal. A compromise was suggested by Senator Hamer that the Committee should have a six-month probationary period, in effect, and that the work should be done by the Constitutional and Legal Affairs Committee. With that compromise, there was an acceptance of the Committee, and it finally did get under way. (Emphasis added.) [8]

Professor Pearce's account was supported by the Hon Fred Chaney MP (the former Senator), who told the seminar:

I think that those who are concerned about the parliamentary institution can learn something from the history of this Committee. One thing is that a relatively obscure backbencher can have an influence on the way the institution operates. When I put forward this proposition, originally in a speech in February 1978 and then in a formal motion later in the same year, I had been in the Senate for less than four years and it was possible to get one's colleagues to focus on a proposal for change. We used the existing committee system (which again had been forced upon the Government of the relevant day by senators) to examine this proposition. Indeed, I had a wonderful and unusual chance to see both sides of the operation.

Shortly after the Senate committee commenced its consideration of the resolution [relating to the establishment of the Committee], I was appointed to the Ministry. This, some people say, is on the basis that, if you are enough trouble, that is one way to shut you up. I then sat in the Fraser Cabinet room as a non-Cabinet Minister and listened to the discussion of the proposition that we should have this Committee as was recommended by the Constitutional and Legal Affairs Committee. I then was in the embarrassing position of having to come into the Senate to defend a decision which I totally disagreed with: to oppose the establishment of the committee that I had advocated. [9]

Mr Chaney went on to say:

I must say that it gave me great pleasure to find that senators really were not terribly impressed by the Executive Government's decision. They, in fact, took it into their own hands to establish this Committee, originally through putting its functions into the Constitutional and Legal Affairs Committee. I think the first thing to remember about it is that this was done not at the behest of or with the approval of the Executive Government, but against the objection of the Executive Government. Of course, the Executive Government's concern was that the legislative process would be slowed down, and effective and efficient government would be impeded. [10]

At the tenth anniversary seminar, it was agreed that the establishment of the Committee owed much to its first Chairman, the late Senator Alan Missen. Senator Cooney told the seminar that:

Alan Missen was one of those great parliamentarians who, although he had the ability perhaps to take a ministry, saw his task and his career as being that of a parliamentarian. That meant looking at, examining and making sure that legislation served the community and that the great concepts we have inherited from a number of traditions were not betrayed. I think he suffered because of that. He is an outstanding example to us and it is proper that we do remember him today. [11]

A Senate-only Committee

Though the Constitutional and Legal Affairs Committee had recommended that a joint committee be established, the Scrutiny of Bills Committee has always been a Senate committee. Indeed, for the first six months of its operation, the Scrutiny of Bills Committee had the same membership as the Constitutional and Legal Affairs Committee. However, on 25 May 1982, the Senate resolved to establish a separate Scrutiny of Bills Committee. [12]

Change to the Operation of the Committee

The major change to Standing Order 24 during the 37th Parliament has been the one relating to the Chairman. Instead of electing a Government Senator as Chairman, the restructuring of the Senate committee system has required that the Committee elect as Chairman a member appointed to the Committee on the nomination of the Leader of the Opposition in the Senate. [13]

The Committee's Legal Adviser

Since its inception, the Committee has always taken up the opportunity to engage a legal adviser. The Committee's first legal adviser was Professor Dennis Pearce. The Committee's longest-serving legal adviser has been the current legal adviser, Professor Jim Davis who has been with the Committee since 1983. Professor Davis' tenure has been punctuated briefly by a 13 month leave of absence, during which time Emeritus Professor Douglas Whalan guided the Committee. All three advisers have come from the Law Faculty of the Australian National University.

At the tenth anniversary seminar, Senator Cooney recorded the Committee's great debt to its legal advisers. He took the opportunity:

...to record the appreciation of the Committee for the hours of hard work, largely undertaken over weekends, put in by these three eminent legal minds. I also record our gratitude to the Law Faculty of the Australian National University, from whence they have all been poached. [14]

The Five Criteria - Standing Order 24 (1)(a)

Standing Order 24 (1)(a) sets out the five criteria against which the Committee tests whether or not legislation it deals with may unduly infringe human rights and liberties or inappropriately lessen Parliament's control over its legislative function. Standing Order 24 (1)(a) states:

(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.

The following chapters discuss how the Committee applied the criteria set out in Standing Order 24 (1)(a) to legislation it dealt with during the 37th Parliament.

Footnotes

[1] The secretariat is part of the Procedure Office of the Senate. That Office also provides the remuneration of the legal adviser. The secretariat consists of two full-time officers, the secretary and an administrative officer, and, on a part-time basis, an officer from the Table Office who assists with the preparation of draft digests and is the minute secretary at the committee's meetings. For further details see Appendix 1.

[2] Journals of the Senate, 9 June 1978, pp. 263-264.

[3] Parliamentary Paper No. 329/1978.

[4] Parliamentary Paper No. 329/1978, pp. 3-4.

[5] Senate Hansard, 19 November 1981, p. 2420.

[6] Senate Hansard, 19 November 1981, p. 2426.

[7] Journals of the Senate, 25 May 1982, pp. 954-955.

[8] Senate Standing Committee for the Scrutiny of Bills, Ten Years of Scrutiny, pp. 5-6.

[9] Senate Standing Committee for the Scrutiny of Bills, Ten Years of Scrutiny, pp. 24-25.

[10] Senate Standing Committee for the Scrutiny of Bills, Ten Years of Scrutiny, p. 25.

[11] Senate Standing Committee for the Scrutiny of Bills, Ten Years of Scrutiny, p. 15.

[12] Journals of the Senate, 25 May 1982, pp. 954-955.

[13] See Standing Order 24(4) reproduced on page 3 of this report.

[14] Senate Standing Committee for the Scrutiny of Bills, Ten Years of Scrutiny, p. 16.