Chapter 1 - Background and 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 provided
an update to a paper on the early work of the Committee, The Operation of
the Australian Senate Standing Committee for the Scrutiny of Bills 1981-1985,[1]that was given in 1985 by his predecessor as Chairman, Senator Michael Tate.
These papers provide an excellent overview of the early work of the Committee.
1.2
In October 1993, the Committee published a report on its work
during the 36th Parliament.[2]
Similar reports on the work of the Committee during the 37th,[3]
38th [4]
and 39th [5]
Parliaments were published in 1997, 1999 and 2002 respectively. These
documents are the main source of information for persons wishing to know more
about the work of the Committee.
1.3
In a similar manner, this report outlines the work of the
Committee during the 40th Parliament. In this context, it is useful
to first 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
examining the legislation and reporting to the Senate as to whether there are
provisions in the Bills, whether by express words or otherwise, which:
- place the onus of
proof on a defendant in a criminal prosecution;
- confer a power of
entry on to land or premises other than by warrant issued according to law;
- confer a power of
search of the subject, land or premises other than by warrant issued according
to law;
- confer a power to
seize goods other than by warrant issued according to law;
- purport to legislate
retrospectively;
- 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;
- 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;
- 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
- otherwise
trespass unduly on personal rights and liberties, or make the rights and
liberties of citizens dependent upon administrative rather than judicial
decisions.[6]
1.5
Following its inquiry, the Constitutional and Legal Affairs
Committee tabled its Report on Scrutiny of Bills on 23 November 1978.[7]
That report recommended the establishment of a Parliamentary Joint Committee to
highlight provisions in bills that 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 examine the clauses of all bills introduced into the
Parliament to determine whether, by express words or otherwise, they:
- trespass unduly on personal rights and
liberties;
- make
rights, liberties and obligations unduly dependent on insufficiently defined
administrative powers or non-reviewable administrative decisions; or
- 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 on 19 November 1981, by resolution of the Senate.[8]
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[9].
1.7
Professor Pearce’s account of the establishment of the Committee
was supported by the Hon Fred Chaney, formerly 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.[10]
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.[11]
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 (paragraph 1.6),
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.[12]
1.9
For the first six years of its operation, the Committee existed
by virtue 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.[13]
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 operation of the Committee.
Senate Standing Order 24
1.10
Senate Standing Order 24 provides that:
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:
- trespass unduly on personal rights and liberties;
- make
rights, liberties or obligations unduly dependent upon insufficiently defined
administrative powers;
- make
rights, liberties or obligations unduly dependent upon non-reviewable
decisions;
- inappropriately delegate legislative powers; or
- insufficiently
subject the exercise of legislative power to parliamentary scrutiny.[14]
1.11
The Committee has six members, three of whom are members of the
government party, nominated by the Leader of the Government in the Senate, 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 Chairman is a member appointed on the nomination of
the Leader of the Opposition in the Senate. The Chairman may from time to time
appoint a member of the Committee to be Deputy Chairman. The Chairman, or
Deputy Chairman when acting as Chairman, 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 Committee’s operation. 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 an eminent 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 – Emeritus Professor Jim Davis, formerly 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 Committee was
assisted by the late Professor Douglas Whalan, also of the ANU Law Faculty.
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 expressed the Committee’s
gratitude ‘to the Law Faculty of the Australian National University, from
whence they have all been poached’.[15]
The operation of the Committee
1.16
As outlined above, the operation of the Committee is governed by
Senate Standing Order 24. Within the limits set out in that Standing Order, the
Committee has evolved a method of operation that is now well-established (refer
below).
1.17
Copies of all bills introduced in either House of the Parliament,
including private Member’s or private Senator’s bills, are provided to the
Committee by the Friday of each sitting week. A copy of each bill, together
with its explanatory memorandum and 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
members of the Committee, and of the Committee Secretariat, to clauses of any
of the bills that appear to infringe one or more of the five principles.
1.18
Since the 39th Parliament the Committee Secretariat
has also systematically examined parliamentary amendments to bills. Amendments
agreed to by either the House of Representatives or the Senate, as noted in the
relevant Hansard and recorded in the Votes and Proceedings of the
House of Representatives or the Journals of the Senate, are also
evaluated against the five principles set out in Standing Order 24 and, where
appropriate, drawn to the Committee’s attention.
The Alert Digest
1.19
On the basis of the legal adviser’s report, the Secretariat
prepares a draft Alert Digest, which is considered by the
Committee at its regular meeting on the Wednesday morning of each Senate sitting
week. The Digest contains a brief outline of each of the bills
introduced in the previous week, and any amendments made to bills in that week.
It sets out any comments the Committee wishes to make in relation to a
particular bill or amendment. Comments are usually made by reference to the
relevant principle. The Alert Digest is tabled in the Senate on the
Wednesday afternoon or Thursday morning of each sitting week.
1.20
Where concerns are raised in a Digest, correspondence on
the matter is forwarded to the Minister, Member or Senator responsible for the
bill or the amendment, on the Thursday following the tabling of the Digest.
This correspondence invites the Minister, Member or Senator 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
1.21
When correspondence is received from a Minister, Member or
Senator, responding to a concern raised in a Digest, the Committee includes
this response in a Report to the Senate. The Report contains the
relevant extract from the Digest, the text of the Minister’s, Member’s
or Senator’s response, and any further comments or requests for information the
Committee may wish to make as a result. 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 Thursday morning of each sitting week.
1.22
The Committee wishes to place on record its thanks to Ministers, Parliamentary
Secretaries, Members and Senators for the promptness and comprehensiveness of
the responses provided during the 40th Parliament. The co-operation
and goodwill shown has greatly assisted the Committee in the effective
performance of its duties.
1.23
Occasionally the Committee also produces reports on matters
specifically referred to it by the Senate. For example, during the 40th
Parliament the Committee held an inquiry and tabled a report on the application
of absolute and strict liability offences in Commonwealth Legislation (see the
Committee’s Sixth Report of 2002, which is discussed further in Chapter 7).
Publication on the Internet
1.24
Copies of Alert Digests and Reports are provided to
all Senators (on request), relevant Ministers and other interested persons and
institutions. They are also available for download at www.aph.gov.au/senate_scrutiny.
Monitoring of penalty provisions
for ‘information’ offences
1.25
In addition to its legislative scrutiny work, as outlined above,
during the 40th Parliament the Committee also monitored the
penalties specified for ‘information’ offences in Commonwealth legislation. In
its Eighth Report of 1998, the Committee reported on the appropriate
basis for penalty provisions where legislation created offences involving the
giving or withholding of information. This matter was referred to the Committee
after debate in the Senate about the appropriateness of specifying a penalty of
imprisonment for failing to provide information to the Productivity Commission
– an organisation that provided the Government with general advice on
microeconomic reform.
1.26
In its report, the Committee recommended that the
Attorney-General develop more detailed criteria to ensure that the penalties
imposed for such offences were more consistent, more appropriate, and made
greater use of a wider range of
non-custodial penalties. On 14 December 1998, the Minister for Justice and
Customs responded to the Committee, advising that the issue of penalties for
offences of this type would be dealt with progressively as part of the
development of the Commonwealth Criminal Code.
1.27
Since the publication of its Eighth Report of 1998, the
Committee has continued to monitor the penalties imposed for such offences.
Imprisonment continues to be provided for as an appropriate penalty for such
offences on some occasions. During the 40th Parliament it was
specified as a penalty in a number of bills, including the Australian Security
Intelligence Organisation Amendment (Terrorism) Bill 2003, the Building and
Construction Improvement Bill 2003, the Inspector-General of Taxation Bill
2002, the International Criminal Court Bill 2002, the Surveillance Devices Bill
2004, the Textbook Subsidy Bill 2003, and the Water Efficiency Labelling and
Standards Bill 2004.
Monitoring of national scheme legislation
1.28
During the 40th Parliament, Committee Alert Digests
also monitored the introduction of Commonwealth bills that proposed to give
effect to national schemes of legislation (i.e. legislation which is uniform,
or substantially uniform, and has an application in more than one Australian
jurisdiction) or decisions reached at Ministerial Councils. Examples of such
bills during the 40th Parliament included the Jurisdiction of Courts
Legislation Amendment Bill 2002, the Regional Forest Agreements Bill 2002, the
Therapeutic Goods and other Legislation Amendment Bill 2002 and the Water
Efficiency Labelling and Standards Bill 2004.
Consensus
1.29
Since its inception, the Committee has operated in a non-partisan
and apolitical way, on a consensus basis. In reporting to the Senate, the
Committee’s practice is to express no concluded view on 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 principles 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 introduced, or
amended, is properly a matter for the Senate to decide.
The Committee’s workload
1.30
Each year the Committee analyses approximately 200 to 250 bills.
The following table sets out the bills and amendments considered during the 40th
Parliament.
|
Year
|
Bills considered
|
Bills commented on
|
Amended bills considered
|
Amended bills commented on
|
Digests tabled
|
Reports tabled
|
|
2002
|
245
|
108
|
68
|
15
|
16
|
16
|
|
2003
|
195
|
86
|
78
|
21
|
16
|
15
|
|
2004*
|
159
|
55
|
68
|
7
|
10
|
10
|
|
Total
2002- 2004*
|
599
|
249
(41.6%)
|
214
|
43
(20.1%)
|
42
|
41
|
*To August 2004.
The Committee’s effectiveness
1.31
Determining the Committee’s effectiveness depends on which
particular impact is being measured. Its effectiveness can be assessed
quantitatively, in terms of the numbers of bills commented on, ministerial
responses received, and so on. These details are set out in Appendix III of
this report. In addition, each Alert Digest contains a running index of
bills commented on by the Committee, which indicates whether a ministerial
response was sought and, if so, whether or not one has been received.
1.32
Further measures of effectiveness might be amendments moved or
amendments passed in respect of provisions of bills on which the Committee has
made comment, or amendments made to explanatory memoranda in response to
concerns expressed by the Committee. Examples of such amendments are included
throughout this report in the commentary on specific bills. Additional examples
include the:
- Aboriginal and Torres Strait Islander Commission Amendment Bill
2002. The Committee had commented on subclause 4(1), which would have the
effect of making a number of amendments contained in Schedule 1 of the bill
apply retrospectively. Amendments passed by the Senate on 20 June 2002, removed subclause 4(1) from the bill;
- Superannuation Legislation (Commonwealth Employment) Repeal and
Amendment Bill 2002. In its Fifth Report of 2002 the Committee requested
that the Minister table an additional explanatory memorandum to the bill,
containing the information that the Minister had provided to the Committee in
response to their concerns. The Minister tabled the additional explanatory
memorandum on 26 June 2003; and
- Import Processing Charges (Amendment and Repeal) Bill 2002. In
its Alert Digest No. 6 of 2002 the Committee commented on commencement
provisions in this bill, which were not explained in the explanatory memorandum.
The Minister agreed to amend the explanatory memorandum to ‘address the matters
raised by the committee and to make it absolutely clear that there is no
intention that any of the amendments will have retrospective operation.’[16]
The replacement explanatory memorandum was tabled in the Senate on 16 September 2002.
1.33
While the indicators of effectiveness outlined above are
relatively easy to quantify, other measures of effectiveness are less tangible.
For example, the impact that the Committee has in preventing issues from arising
in the first place, rather than drawing attention to them once they have
arisen. Many of the concerns raised by the Committee are discussed in the
Drafting Directions issued by the First Parliamentary Counsel and all drafters
are required to comply with these directions. As such, it might be argued that
the Committee is effective in preventing problems from arising in the first
place, but the extent to which this occurs is impossible to quantify.
1.34
More impressionistic indicators of the Committee’s effectiveness
are comments made about it by people who have experienced its work. For
example, in 1998 Senator the Hon Robert Ray, noting that he had originally
voted against the establishment of the Committee, indicated that:
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.[17]
Explanatory memoranda
1.35
During the 40th Parliament, the Committee had cause to
express concern at the quality of explanatory memoranda accompanying many of
the bills that came before the Committee. 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 the bill
that appears to test or infringe the principles outlined in Standing Order 24
and that the explanatory memorandum will provide reasons or justifications for
this.
1.36
The Committee’s continuing dissatisfaction with explanatory
memoranda resulted in a series of statements to the Senate during 2003[18]
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. 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.[19]
1.37
The problem continued, however, and in its Third Report of
2004, the Committee:
...noted a decrease in the quality of information in a number of
[explanatory memoranda]... 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.
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’.[20]
1.38
With a view to improving the quality of explanatory memoranda, in
its Third Report of 2004, the Committee recommended 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;
- the Department of the Senate develop a set of guidelines
to assist senators in the preparation of private Senators’ bills;
- information relevant to the preparation of explanatory
memoranda currently contained in the Legislation Handbook, Legislation
Circulars and Office of Parliamentary Counsel Drafting Directions, be
consolidated into one primary source of information, namely the Legislation
Handbook;
- an appropriately qualified person should check the
explanatory memorandum accompanying a bill before the bill is introduced into
the Parliament, so as to ensure that it fully explains the effect and operation
of the proposed legislation and complies with the requirements contained in the Legislation Handbook, as amended; and
- consideration be given to developing a course to train
departmental officers in the preparation of explanatory memoranda.
1.39
In response to recommendation 2, above, the Department of the
Senate developed a set of guidelines - Preparing Private Senators’ Bills,
Explanatory Memoranda and Second Reading Speeches. A Guide for Senators - to
assist Senators in the preparation of private bills. Senators were alerted to
the existence of the guidelines in October 2004. The guidelines are available
from the Clerk-Assistant, Senate Procedure Office and over the intranet.
1.40
At the end of the 40th Parliament, the Committee was
awaiting the Government’s response to its Third Report of 2004.
1.41
This report now turns to more
detailed consideration of the work of the Committee during the 40th
Parliament. This will be discussed by considering how the Committee tested
bills coming before it against the five principles that govern its work.
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