Footnotes
Members of the Committee
[1] Appointed to Committee this Parliament 18 November 2004. Elected Chair 18 November 2004
(to end of Parliament).
[2] Appointed to Committee this Parliament 23 March 2007. Appointed Deputy Chair 9 May 2007
(to end of Parliament).
[3] Appointed to Committee this Parliament 18 November 2004. Continuous service to the Committee
since first appointed 1 July 2002.
[4] Appointed to Committee this Parliament 18 November 2004. Continuous service since first
appointed to Committee 1 July 2002. Discharged 23 March 2007.
[5] Appointed to Committee this Parliament 23 June 2005.
[6] Appointed to Committee this Parliament 18 November 2004. Continuous service since first
appointed to Committee 24 June 2004. Discharged 23 June 2005.
[7] Appointed to Committee this Parliament 18 November 2004. Appointed Deputy Chair 18 November 2004 to 23 March 2007. Continuous service since first
appointed to Committee 31 August 1999. Discharged 23 March 2007.
[8] Appointed to Committee this Parliament 18 November 2004. Continuous service since first
appointed 18 June 1996,
effective 1 July 1996.
[9] Appointed to Committee this Parliament 23 March 2007.
Preface
[1] Appointed to Committee this Parliament 18 November 2004. Elected Chair 18 November 2004
(to end of Parliament).
[2] Appointed to Committee this Parliament 23 March 2007. Appointed Deputy Chair 9 May 2007
(to end of Parliament).
[3] Appointed to Committee this Parliament 18 November 2004. Continuous service to the Committee
since first appointed 1 July 2002.
[4] Appointed to Committee this Parliament 18 November 2004. Continuous service since first
appointed to Committee 1 July 2002. Discharged 23 March 2007.
[5] Appointed to Committee this Parliament 23 June 2005.
[6] Appointed to Committee this Parliament 18 November 2004. Continuous service since first
appointed to Committee 24 June 2004. Discharged 23 June 2005.
[7] Appointed to Committee this Parliament 18 November 2004. Appointed Deputy Chair 18 November 2004 to 23 March 2007. Continuous service since first
appointed to Committee 31 August 1999. Discharged 23 March 2007.
[8] Appointed to Committee this Parliament 18 November 2004. Continuous service since first
appointed 18 June 1996,
effective 1 July 1996.
[9] Appointed to Committee this Parliament 23 March 2007.
Chapter 1 - Background and operation of the Committee
[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]
Report on the Operation of the Senate Standing Committee for the
Scrutiny of Bills during the 36th Parliament. Parliamentary
Paper No. 208/1993.
[3]
Refer Parliamentary Paper No. 116/1997; Parliamentary Paper No.
146/1999; Parliamentary Paper No. 313/2002; and Parliamentary Paper No. 277/08.
[4]
Senate, Hansard, 9 June 1978, p. 2689.
[5]
Parliamentary Paper No. 329/1978.
[6]
Senate, Hansard, 19 November 1981, pp. 2418-2428.
[7]
Pearce, D. ‘Opening Address’ in Senate Standing Committee for the
Scrutiny of Bills, Ten Years of Scrutiny, pp. 5-6.
[8]
Chaney, F. in Senate Standing Committee for the Scrutiny of Bills, Ten
Years of Scrutiny,
pp. 24-25.
[9]
ibid. p. 25.
[10]
Senate, Hansard, 25 May 1982, pp. 2341-2342.
[11]
Senate, Hansard, 17 March 1987, pp. 775-776.
[12]
Senate, Standing Orders and Other Orders of the Senate, September
2006, p. 21.
[13]
Senate Standing Committee for the Scrutiny of Bills, Ten Years of
Scrutiny, p. 16.
[14]
Australian National Audit Office, Audit Report No. 15 of 2004-05, Performance
Audit – Financial Management of Special Appropriations, p. 14.
[15]
Scrutiny of Bills Committee, Fourteenth Report of 2005, p. 271.
[16]
ibid. p. 272.
[17]
Senate, Standing Orders and Other Orders of the Senate, September
2006, p. 21.
[18]
Senate, Parliamentary Debates, 1 July 1998, p. 4625 (Senator R Ray).
[19]
Scrutiny of Bills Committee, Third Report of 2004.
Chapter 2 - Undue trespass on personal rights and liberties
[1]
Hobbes, T. Leviathan, as referred to by Toohey, J. in Polyukhovich
v The Commonwealth (1991) 172 CLR 501 at 687.
[2]
Blackstone, W. Commentaries on the Laws of England, Book 1 (1965,
Clarendon Press, Oxford), pp. 45-6 as referred to in Polyukhovich v The
Commonwealth (1991) 172 CLR 501 at 534 per Mason, CJ.
[3]
The Parliament has generally accepted some retrospectivity in respect of
tax and revenue measures so as to ensure that windfall profits may not be made
between the time of an announcement and the enactment of legislation to
implement that announcement. (Odgers’ Australian Senate Practice, 11th
Edition, p. 299).
[4]
Scrutiny of Bills Committee, Alert Digest No. 10 of 2005, p. 17.
[5]
Senate Hansard, 5 September 2005, p. 130.
[6]
Senate Hansard, 5 September 2005, pp. 130-131.
[7]
Scrutiny of Bills, Tenth Report of 2005, p. 207.
[8]
Scrutiny of Bills Committee, Alert Digest No. 11 of 2004, p. 12.
[9]
ibid.
[10]
ibid. p. 13.
[11]
Scrutiny of Bills Committee, Twelfth Report of 2004, p. 207.
[12]
ibid. p. 208.
[13]
ibid.
[14]
ibid. pp. 208-209.
[15]
ibid. p. 209.
[16]
ibid. p. 210.
[17]
Scrutiny of Bills Committee, Alert Digest No. 2 of 2005, p. 31.
[18]
Scrutiny of Bills Committee, Fourth Report of 2005, pp. 82-83.
[19]
Scrutiny of Bills Committee, Fifth Report of 2005, p. 101.
[20]
Scrutiny of Bills Committee, The Work of the Committee during the 37th
Parliament, p. 21.
[21]
Scrutiny of Bills Committee, Annual Report 1986-87, pp. 12-13.
[22]
Odgers’ Australian Senate Practice, 11th Edition, p.
299.
[23]
Scrutiny of Bills Committee, Second Report of 2007, pp. 51-52.
[24]
ibid. p. 52.
[25]
Scrutiny of Bills Committee, Third Report of 2007, p. 97.
[26]
ibid. p. 98.
[27]
Scrutiny of Bills Committee, Eleventh Report of 2005, pp. 227-228.
[28]
ibid. p. 227.
[29]
ibid. p. 228.
[30]
Scrutiny of Bills Committee, Fourth Report of 2006, p. 78.
[31]
ibid.
[32]
Parliamentary Paper No. 319/1982.
[33]
ibid. p. 47.
[34]
Senate Legal and Constitutional References Committee, Inquiry into s.46
and s.50 of the Trade Practices Act 1974, in additional comments by Senator
Murray on behalf of the Australian Democrats, p. 37.
[35]
Similar arguments have been made internationally. For example, Transparency
International has argued that legislative frameworks which reverse the onus of
proof and instead allow a civil standard of proof should be implemented in less
developed countries to assist them to trace and recover monies that have been
misappropriated by corrupt officials. (TI Australia News, No. 54, May
2008, p. 2.)
[36]
Scrutiny of Bills Committee, Alert Digest No. 1 of 1999, p. 32.
[37]
Scrutiny of Bills Committee, Tenth Report of 1999, pp. 237-238.
[38]
Scrutiny of Bills Committee, Alert Digest No. 5 of 2005, pp.
15-16.
[39]
Scrutiny of Bills Committee, Sixth Report of 2005, pp. 128-129.
[40]
ibid. p. 129.
[41]
ibid. pp. 129-130.
[42]
ibid. p. 130.
[43]
Scrutiny of Bills Committee, Ninth Report of 2005, p. 188.
[44]
ibid. p. 189.
[45]
Scrutiny of Bills Committee, Alert Digest No. 6 of 2007, p. 25.
[46]
Scrutiny of Bills Committee, Eighth Report of 2007, pp. 282-283.
[47]
Australian Government, A Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers, February 2004, p. 24.
[48]
Cited in Scrutiny of Bills Committee, Alert Digest No. 6 of 2007, p.
44.
[49]
Scrutiny of Bills Committee, Alert Digest No. 6 of 2007, p. 44.
[50]
Scrutiny of Bills Committee, Seventh Report of 2007, p. 234.
[51]
Senator Andrew Murray, Senate Hansard, 21 June 2007, p. 148.
[52]
Senator Eric Abetz, Senate Hansard, 21 June 2007, p. 149.
[53]
Note: at the time of publication the Charts had not been updated.
However, the Australian Fisheries Management Authority (AFMA) has advised that
when the relevant charts are next reviewed, AFMA will give consideration to including
markings delineating Australia’s territorial sea.
[54]
Scrutiny of Bills Committee, Alert Digest No. 13 of 2006, p. 9.
[55]
ibid. p.10.
[56]
Scrutiny of Bills Committee, Eleventh Report of 2006, pp. 194-196.
[57]
ibid.
[58]
Scrutiny of Bills Committee, Thirteenth Report of 2006, p. 360.
[59]
Scrutiny of Bills Committee, Alert Digest No. 2 of 2005, p. 20.
[60]
Scrutiny of Bills Committee, Fourth Report of 2005, p. 77.
[61]
ibid. p. 79.
[62]
ibid. p. 80.
[63]
Scrutiny of Bills Committee, Alert Digest No. 7 of 2005, p. 13.
[64]
Scrutiny of Bills Committee, Alert Digest No. 12 of 2006, pp.
16-18.
[65]
ibid. p. 18.
[66]
Scrutiny of Bills Committee, Eleventh Report of 2006, p. 225.
[67]
ibid.
[68]
ibid. pp. 227-228.
[69]
ibid. p. 228.
[70]
ibid. pp. 229-230.
[71]
ibid. p. 231.
[72]
Scrutiny of Bills Committee, Thirteenth Report of 2006, p. 366.
[73]
Scrutiny of Bills Committee, Alert Digest No. 12 of 2004, p. 21.
[74]
ibid. p. 22.
[75]
ibid. pp. 22-23.
[76]
Scrutiny of Bills Committee, Seventh Report of 2005, p. 153.
[77]
ibid. p. 154.
[78]
ibid.
[79]
Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, p. 16.
[80]
Scrutiny of Bills Committee, Eleventh Report of 2006, p. 205.
[81]
House of Representatives, Hansard, 29 November 2006, pp. 129-134.
[82]
Scrutiny of Bills Committee, Alert Digest No. 2 of 2005, p. 17.
[83]
Scrutiny of Bills Committee, Fourth Report of 2005, p. 71.
[84]
ibid. p. 72.
[85]
ibid.
[86]
ibid.
[87]
Note: On 30 August 2007, the High Court of Australia (Roach v Electoral
Commissioner [2007] HCA 43), by majority, upheld a challenge to this Act.
The High Court also held that the pre-2006 legislation (which stipulates that
prisoners serving a sentence of three years or more cannot vote) remained in
force and valid.
Chapter 3 - Undue dependence upon insufficiently defined administrative powers
[1]
Scrutiny of Bills Committee, First Report of 1982, p.10.
[2]
Scrutiny of Bills Committee, Eleventh Report of 1984, p. 37.
[3]
Scrutiny of Bills Committee, Alert Digest No. 4 of 2007, p. 7.
[4]
ibid. p. 8.
[5]
Scrutiny of Bills Committee, Fifth Report of 2007, p. 139.
[6]
ibid.
[7]
Scrutiny of Bills Committee, Second Report of 2007, p. 38.
[8]
ibid. pp. 37-38.
[9]
ibid. p. 38.
[10]
Scrutiny of Bills Committee, Third Report of 2007, p. 91-92.
[11]
ibid. p. 91.
[12]
Scrutiny of Bills Committee, Alert Digest No. 4 of 2007, p. 13.
[13]
Scrutiny of Bills Committee, Fifth Report of 2007, p. 142.
[14]
ibid.
[15]
Scrutiny of Bills Committee, Seventh Report of 2007, p. 226.
[16]
ibid.
[17]
Scrutiny of Bills Committee, Eighth Report of 2007, p. 266.
[18]
Scrutiny of Bills Committee, Seventh Report of 2007, p. 226.
[19]
Scrutiny of Bills Committee, Eighth Report of 2007, pp. 266-267.
[20]
See, for example, Scrutiny of Bills Committee, First Report of 1985, p.
3, concerning the Horticultural-Plant Variety Rights Bill 1984 [1985].
Chapter 4 - Undue dependence upon non-reviewable decisions
[1]
Scrutiny of Bills Committee, Alert Digest No. 11 of 2004, p. 31.
[2]
Scrutiny of Bills Committee, Alert Digest No. 4 of 2006, p. 38.
[3]
Scrutiny of Bills Committee, Alert Digest No. 12 of 2006, p. 14.
[4]
Scrutiny of Bills Committee, Eleventh Report of 2006, p. 222.
[5]
ibid.
[6]
ibid. p. 223.
[7]
Scrutiny of Bills Committee, Alert Digest No. 2 of 2007, p. 29.
[8]
Scrutiny of Bills Committee, Fourth Report of 2007, p. 120.
[9]
ibid. p. 124.
[10]
ibid.
[11]
Scrutiny of Bills Committee, Ninth Report of 2007, p. 374.
[12]
ibid.
[13]
ibid.
[14]
Scrutiny of Bills Committee, Alert Digest No. 9 of 2007, p. 26.
[15]
ibid.
[16]
ibid. p. 27.
[17]
Scrutiny of Bills Committee, Ninth Report of 2007, p. 377.
[18]
ibid.
[19]
ibid. p. 381.
[20]
Scrutiny of Bills Committee, Ninth Report of 2007, p. 382.
[21]
ibid. p. 384.
[22]
ibid. p. 382.
[23]
Scrutiny of Bills Committee, Alert Digest No. 13 of 2005, p. 20.
[24]
ibid.
[25]
Scrutiny of Bills Committee, Thirteenth Report of 2005, pp.
258-259.
[26]
ibid. p. 259.
[27]
Scrutiny of Bills Committee, Alert Digest No. 13 of 2006, p. 13.
[28]
Scrutiny of Bills Committee, Alert Digest No. 2 of 2007, p. 40.
[29]
Scrutiny of Bills Committee, Alert Digest No. 5 of 2007, pp. 36-37.
[30]
Scrutiny of Bills Committee, Alert Digest No. 13 of 2005, p. 11.
[31]
ibid.
[32]
ibid.
Chapter 5 - Inappropriate delegation of legislative power
[1]
See also Pearce, D C, Delegated Legislation in Australia and New
Zealand, Butterworths, Sydney, 1977.
[2]
Scrutiny of Bills Committee, Second Report of 2007, pp. 45-46.
[3]
ibid. p. 47.
[4]
Scrutiny of Bills Committee, Sixth Report of 2007, p. 166.
[5]
Journals of the Senate, No. 147, 14 June 2007, p. 3917.
[6]
Scrutiny of Bills Committee, Fifth Report of 2005, p. 109.
[7]
ibid. p. 110.
[8]
ibid.
[9]
Scrutiny of Bills Committee, Alert Digest No. 8 of 2005, p. 35.
[10]
Scrutiny of Bills Committee, Ninth Report of 2005, pp. 190-191.
[11]
ibid. p. 191.
[12]
ibid.
[13]
ibid. p.192.
[14]
See, for example Alert Digest No. 7 of 1992, commenting on the
Commonwealth Electoral Amendment Bill 1992; and Alert Digest No. 14 of 1992,
commenting on the Student Assistance Amendment Bill 1992.
[15]
Journals of the Senate, No. 159, 16 & 17 August 2007, pp. 4251-4254.
[16]
Scrutiny of Bills Committee, Alert Digest No. 8 of 2007, p. 9.
[17]
Scrutiny of Bills Committee, Ninth Report of 2007, p. 352.
[18]
ibid.
[19]
ibid.
[20]
ibid.
[21]
Scrutiny of Bills Committee, Alert Digest No. 8 of 2005, p. 37.
[22]
Scrutiny of Bills Committee, Ninth Report of 2005, p. 193.
[23]
ibid.
[24]
Scrutiny of Bills Committee, Alert Digest No. 8 of 2005, p. 40.
[25]
Scrutiny of Bills Committee, Ninth Report of 2005, p. 195.
[26]
ibid. pp. 195-196.
[27]
ibid. p. 196.
[28]
ibid.
[29]
Scrutiny of Bills Committee, Ninth Report of 2005, p. 186.
[30]
ibid. p. 187.
[31]
Note: While these bills were introduced during the 40th Parliament,
the Committee’s report on the bills was not tabled until the 41st
Parliament, thus their inclusion in this report.
[32]
Scrutiny of Bills Committee, Eleventh Report of 2004, p. 199.
[33]
ibid. p. 200.
[34]
ibid.
[35]
Scrutiny of Bills Committee, Seventh Report of 2005, p. 157.
[36]
ibid. p. 157.
Chapter 6 - Insufficient Parliamentary scrutiny of the exercise of legislative power
[1]
Scrutiny of Bills Committee, Tenth Report of 2007, p. 413.
[2]
ibid.
[3]
ibid.
[4]
ibid.
[5]
Scrutiny of Bills Committee, Alert Digest No. 9 of 2007, pp.
9-14.
[6]
Scrutiny of Bills Committee, Ninth Report of 2007, p. 359.
[7]
Scrutiny of Bills Committee, Alert Digest No. 8 of 2007, p. 11.
[8]
Scrutiny of Bills Committee, Ninth Report of 2007, p. 355.
[9]
Scrutiny of Bills Committee, Fourth Report of 2003, Communications
Legislation Amendment Bill (No. 1) 2002, p. 107.
[10]
See for example, the Committee’s comments on the Communications and the
Arts Legislation Amendment Bill 1994, in its Fourth Report of 1995, pp.
55-56.
[11]
Scrutiny of Bills Committee, Third Report of 2005, pp. 49-50.
[12]
ibid. p. 50.
[13]
ibid. p. 51.
[14]
Scrutiny of Bills Committee, Alert Digest No. 1 of 2006, pp. 9-10.
[15]
Scrutiny of Bills Committee, First Report of 2006, pp. 13-14.
[16]
Scrutiny of Bills Committee, Seventh Report of 2005, p. 148.
[17]
ibid. p. 149.
[18]
Scrutiny of Bills Committee, Alert Digest No. 15 of 2006, p. 7.
[19]
Scrutiny of Bills Committee, Second Report of 2007, p. 20.
[20]
ibid.
[21]
ibid.
Chapter 7 - Entry, search and seizure provisions in Commonwealth legislation
[1]
Scrutiny of Bills Committee, Fourth Report of 2000: Entry and Search
Provisions in Commonwealth Legislation.
[2]
Journals of the Senate, 25 March 2004, pp. 3230-3231.
[3]
Cited in Scrutiny of Bills Committee, Twelfth Report of 2006, p.
282.
[4]
Scrutiny of Bills Committee, Twelfth Report of 2006, p. 283.
[5]
ibid.
[6]
ibid. pp. 292-293.
[7]
ibid. p. 294.
[8]
Scrutiny of Bills Committee, Fourth Report of 2000: Entry and Search
Provisions in Commonwealth Legislation, pp. 52-53.
[9]
Government Response to the Senate Standing Committee for the Scrutiny
of Bills Fourth Report – Entry and Search Provisions in Commonwealth
Legislation, August 2003, p. 13.
[10]
Scrutiny of Bills Committee, Twelfth Report of 2006, pp. 296-297.
[11]
ibid. p. 297.
[12]
Scrutiny of Bills Committee, Fourth Report of 2000: Entry and Search
Provisions in Commonwealth Legislation, p. 128.
[13]
Scrutiny of Bills Committee, Twelfth Report of 2006, p. 300.
[14]
ibid. pp. 301-302.
[15]
The Senate Committee of Privileges has defined the privileges of
Parliament as ‘immunities from the operation of certain laws conferred in order
to ensure that the duties of members as representatives of their constituents
may be carried out without fear of intimidation or punishment, and without
improper impediment.’ Senate Committee of Privileges, 125th
Report, p. 3.
[16]
Cited in Scrutiny of Bills Committee, Twelfth Report of 2006, p.
305.
[17]
Senate Hansard, 9 March 2005, pp. 91-92.
[18]
Cited in Scrutiny of Bills Committee, Twelfth Report of 2006, p.
306.
[19]
Note: Following the finalisation of a memorandum of understanding
concerning the exercise by the Australian Federal Police of search warrants on
the premises of Senators and Members, the Senate President wrote to State
police Ministers to encourage the preparation of similar agreements with State police
forces. The Committee of Privileges is monitoring developments in this area.
[20]
ibid. pp. 307-308.
[21]
ibid. p. 308.
[22]
ibid.
[23]
See for example, the Telecommunications (Interception) Legislation
Amendment Act 2000 and the Cybercrime Act 2001.
[24]
Scrutiny of Bills Committee, Twelfth Report of 2006, p. 311.
[25]
ibid. p. 313.
[26]
ibid.
[27]
ibid. p. 315.
[28]
ibid. p. 316.
[29]
Note: The Government responded to the Committee’s Twelfth Report of
2006 on 26 June 2008.