CHAPTER 1
OPERATION OF THE COMMITTEE
Introduction
1.1 The Senate Standing Committee for the Scrutiny of Bills was established
on 19 November 1981. On 25 November 1991, the Committee held a seminar
to mark the tenth anniversary of its establishment. The published proceedings
of that seminar – Ten Years of Scrutiny – includes
a paper presented by the then Chairman of the Committee, Senator Barney
Cooney. In that paper, Senator Cooney sought to provide an update to `The
Operation Paper' – a paper on the early work of the Committee given
by his predecessor as Chairman, Senator Michael Tate, in 1985. [1]
1.2 In October 1993, the Committee published the Report on the operation
of the Senate Standing Committee for the Scrutiny of Bills during the
36th Parliament and, in June 1997, published The Work of the Committee
during the 37th Parliament. These documents are the main source for
persons wishing to know more about the work of the Committee.
1.3 In a similar form, this Report outlines the work of the Committee
during the 38th Parliament. In this context, it is useful first to re-examine
the main features of the operation of the Committee, including the background
to its establishment.
Report of the Standing Committee on Constitutional and Legal Affairs
1.4 On 9 June 1978, on the motion of then Senator Fred Chaney, the Senate
referred to its then 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 onto land or premises other than by warrant
issued according to law;
c) confer a power of search of the subject, 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 operations 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]
1.5 Following its inquiry, the Constitutional and Legal Affairs Committee
tabled a Report on Scrutiny of Bills on 23 November 1978. [3]
That report recommended the establishment of a new Parliamentary Joint
Committee to highlight provisions in bills which had an impact on persons,
either by interfering with their rights, or by subjecting them to the
exercise of undue delegations of power. The Committee recommended that,
in particular, this new Committee should test the clauses of all bills
introduced into the Parliament against the following criteria, namely,
whether by express words or otherwise, they:
(i) trespass unduly on personal rights and liberties;
(ii) make rights, liberties and obligations unduly dependent on insufficiently
defined administrative powers or non-reviewable administrative decisions;
or
(iii) inappropriately delegate legislative power or insufficiently subject
its exercise to parliamentary scrutiny.
Establishment of the Scrutiny of Bills Committee
1.6 As a consequence of the Committee's report, a Standing Committee
for the Scrutiny of Bills was established, by resolution of the Senate,
on 19 November 1981. [4] Its establishment was by no means easy, and owed
much to the work of its first Chairman, the late Senator Alan Missen.
As Professor Dennis Pearce, the Committee's first legal adviser, told
the Committee's tenth anniversary seminar:
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 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.
[5]
1.7 Professor Pearce's account of the establishment of the Committee
was supported by the Hon Fred Chaney MP, the Federal member for Pearce
and a former member of the Senate:
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. [6]
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.
[7]
1.8 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. As noted above, [8]
for the first six months of its operation, it had the same membership
as the Constitutional and Legal Affairs Committee. On 25 May 1982, the
Senate finally resolved to establish a distinct Scrutiny of Bills Committee.
[9]
1.9 For the first six years of its operation, the Committee was a creature
of a Senate resolution and, later, of a Senate Sessional Order. The relevant
resolution or Sessional Order established the Committee and set out its
terms of reference and its method of operation. A consequence of this
approach was that the Committee had to be re-established at the commencement
of each new Parliament. However, on 17 March 1987, the Committee
became a permanent feature of the Senate committee system, with the adoption
of a new Senate Standing Order 36AAA. [10] This was in similar terms to the previous resolutions
and Sessional Orders. When the Senate Standing Orders were re-numbered,
it became Standing Order 24, which currently governs the operations of
the Committee.
Senate Standing Order 24
1.10 Senate Standing Order 24 provides:
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.
1.11 The Committee has six members, three of whom are members of the
government party, and three of whom are members of non-government parties
(as nominated by the Leader of the Opposition in the Senate or by any
minority groups or independent Senators).
1.12 The Committee Chair is a member appointed on the nomination of the
Leader of the Opposition in the Senate. The Chair may, from time to time,
appoint a member to be Deputy Chair. The Chair, or Deputy Chair when acting
as Chair, has a casting vote when votes on a question before the Committee
are equally divided. However, the relative numbers of the political groupings
represented on the Committee has proved to be of little or no significance
to the operation of the Committee. The culture of the Committee is, and
always has been, non-partisan.
1.13 Standing Order 24 sets out various other matters, including the
Committee's power to appoint subcommittees, and its power to send for
persons and documents. One of the most significant powers of the Committee
is that of appointing a legal adviser.
The Committee's legal adviser
1.14 Since its inception, the Committee has always taken the opportunity
to engage a legal adviser to assist it in its work. As noted above, the
Committee's first legal adviser was Professor Dennis Pearce. However,
its longest-serving legal adviser is the current appointee – Professor
Jim Davis, of the ANU Law Faculty – who has been with the Committee
since 1983. Professor Davis's tenure was interrupted by a 13 month leave
of absence, during which time the late Emeritus Professor Douglas Whalan,
also of the ANU Law Faculty, ably stood in his shoes. Emeritus Professor
Whalan died on 10 October 1997. He was a man of great character. He was
learned in the law. He was a person of integrity. He was truly wise and
had a brilliant mind. The Committee was saddened by his loss. It extends
its condolences to his wife and family.
1.15 At the tenth anniversary seminar, Senator Cooney noted the Committee's
great debt to its legal advisers. He recorded the Committee's appreciation
“for the hours of hard work, largely undertaken over weekends, put
in by these three eminent legal minds”, and also recorded the Committee's
gratitude “to the Law Faculty of the Australian National University,
from whence they have all been poached”. [11]
The operation of the Committee
1.16 As stated above, the operation of the Committee and the role of
its legal adviser is governed by Senate Standing Order 24. Within the
limits set out in that Standing Order, the Committee has evolved a method
of operation which is now well-established. It is appropriate to outline
that method of operation.
1.17 Copies of all bills introduced in either House of the Parliament
are provided to the Committee by the Friday of each sitting week. A copy
of each bill, together with its Explanatory Memorandum and the Minister's
second reading speech, is then forwarded to the Committee's legal adviser.
The legal adviser examines each bill against the five principles set out
in Standing Order 24, and provides a written report to the Committee by
the following Monday. This report draws the attention of the Committee
Secretariat and of the members of the Committee to those clauses of any
of the bills which appear to infringe one or more of the five principles.
The Alert Digest
1.18 On the basis of the legal adviser's report, the Secretariat then
prepares a draft Alert Digest which is considered by the Committee
at its regular meeting on the Wednesday morning of each sitting week.
The Digest contains a brief outline of each of the bills introduced
in the previous week. It sets out any comments the Committee wishes to
make in relation to a particular bill. Comments are usually made by reference
to the relevant principle. The Alert Digest is tabled in the Senate
on the Wednesday afternoon or the Thursday morning of each sitting week.
1.19 Where concerns are raised in a Digest, correspondence on
the matter is forwarded to the Minister responsible for the bill on the
Thursday following the tabling of the Digest. This correspondence
invites the Minister to respond to the Committee's concerns. The Committee
requests that any response be received in sufficient time for it to be
circulated to members for consideration prior to the next Committee meeting.
Committee Reports
1.20 When a Minister or Parliamentary Secretary responds to a concern
raised in a Digest, the Committee produces a Report. This
contains the relevant extract from the Digest, the text of the
Minister's response, and any further comments the Committee may wish to
make. As with the draft Digests, the draft Reports are considered
at the Committee's regular meeting. The Committee agrees on their content
and they are then presented to the Senate on the Wednesday afternoon or
the Thursday morning of each sitting week.
Publication on the Internet
1.21 Copies of Digests and Reports are provided to all
Senators, relevant Ministers and other interested persons and institutions.
They are also made available electronically on the Internet (see .
1.22 Occasionally, the Committee produces reports on matters specifically
referred to it by the Senate. For example, during the 38th Parliament
the Committee tabled a report on the penalty provisions contained in the
Productivity Commission Bill 1996 and in other comparable legislation
(see Eighth Report of 1998).
Consensus
1.23 Since its inception, the Committee has operated on a non-partisan,
apolitical and consensual basis. Therefore, in reporting to the Senate,
the Committee's practice is to express no concluded view on any of the
provisions in a bill, but rather to advise Senators and other readers
of its reports of the risk that particular provisions may infringe one
or more of the criteria in Standing Order 24. In essence, the Committee
sees its task as drawing the Senate's attention to provisions in legislation
which may infringe people's civic entitlements. Whether the legislation
should be passed as drafted, or amended, is properly a matter for the
Senate to decide.
How effective is the Committee?
1.24 The answer to this question depends on which particular impact of
the Committee is being measured. Its effectiveness can be assessed quantitatively
in terms of the numbers of bills commented on, of ministerial responses
received, of amendments moved, of amendments passed, and so on. Some of
these details are set out in Appendix III of this report. Others can be
found in the Department of the Senate's Annual Reports. [12]
1.25 Another possible indicator of effectiveness is the extent to which
Ministers respond to the comments contained in Alert Digests. The
number of ministerial responses to committee comments can be measured.
Each Alert Digest contains a running index of bills commented on
by the committee. This shows whether a ministerial response was sought
and, if so, from whom, and whether or not one has been received.
1.26 More impressionistic indicators of the Committee's effectiveness
are comments made about it by people who have experienced its work. For
example, Senator the Hon Robert Ray recently noted that he had voted against
the establishment of the Committee:
My concern at that time was not that bills should be scrutinised but
that the job would be delegated to staff and consultants and that senators
would merely rubber stamp the recommendations that came through.
What became clearly obvious from the work on both sides of the chamber
on this committee as it evolved in the 1980s is that the committee took
its task very seriously. It looked at legislation. I found it most valuable
as a minister when we had legislation up before the chamber. Quite often,
matters brought up by the Standing Committee for the Scrutiny of Bills
had not been thought of by the minister in scrutinising the legislation.
It was quite a useful tool for a minister to have some other body away
from departmental advice evaluating the legislation and pointing out weaknesses
in it. So I have to say – this is very difficult for me – that
back in 1981 and 1982 I was probably in error in voting against it. [13]
1.27 This Report now turns to some of the work of the Committee in the
38th Parliament. This will be discussed by considering how the Committee
tested bills coming before it against the five criteria which govern its
work.
Footnotes
[1] Senator M Tate, `The Operation of the Australian
Senate Standing Committee for the Scrutiny of Bills 1981-1985', paper
presented to the Conference of the Australasian Study of Parliament Group,
Adelaide, August 1985.
[2] Senate, Hansard, 9 June 1978, p 2689.
[3] Parliamentary Paper No 329/1978.
[4] Senate, Hansard, 19 November 1981,
pp 2418-2428.
[5] Senate Standing Committee for the Scrutiny
of Bills, Ten Years of Scrutiny, pp 5-6.
[6] Senate Standing Committee for the Scrutiny
of Bills, Ten Years of Scrutiny, pp 24-25.
[7] Senate Standing Committee for the Scrutiny
of Bills, Ten Years of Scrutiny, p 25.
[8] See para 1.6.
[9] Senate, Hansard, 25 May 1982, pp
2341-2342.
[10] Senate, Hansard, 17 March 1987,
pp 775-776.
[11] Senate Standing Committee for the Scrutiny
of Bills, Ten Years of Scrutiny, p 16.
[12] For example, Department of the Senate,
Annual Reports for 1993-4 (pp 73-77) and 1994-5 (pp 56-61).
[13] Senate, Parliamentary Debates,
1 July 1998, p 3977 (Senator R Ray).