LEGAL AND CONSTITUTIONAL AFFAIRS
The Committee and its Predecessors
Since the establishment of the Senate Standing Committees in 1970, matters
presently covered by the Senate Standing Committee on Legal and Constitutional
Affairs have fallen, formally, within the areas of interest of the following
Committees:
- Senate Standing Committee on Constitutional and Legal Affairs
(Fully Established 06 October 1971)
- Senate Standing Committee on Legal and Constitutional Affairs
(Appointed 22 September 1987)
Current Membership
The membership of the Senate Standing Committee on Legal and Constitutional
Affairs in December 1990 was as follows:
Senator B.C. Cooney (ALP, VIC) (Chair)
Senator P.J. Giles (ALP, WA)
Senator C.R. Kemp (LP, VIC)
Senator W.G. O'Chee (NPA, QLD)
Senator C.C. Schacht (ALP, SA)
Senator S. Spindler (AD, VIC)
Senator A.E. Vanstone (LP, SA)
Senator the Hon. P.A. Walsh (ALP, WA)
A full listing of membership and Committee Chairpersons on the Senate
Standing Committee on Legal and Constitutional Affairs and other related
committees are listed in an attachment to this section. Other attachments
to this section include lists of committee secretaries and reports tabled
by the committees.
The Work of the Committees
Focusing as it does on questions of a legal and constitutional nature,
the Committee's work has ranged widely over many subject areas, a sample
of which are described below.
Family Law
A reference on family law matters was one of the Committee's earliest
references, coming a bare two months after the Committee was set up. At
the time, family law was an innovative field of Commonwealth law and therefore
involved a consideration of constitutional issues. The inquiry was a major
one and when the first version of the Family Law Bill was introduced in
1973, the Attorney-General referred to the prior work of the Committee,
having been one of the Committee's members at the time of the reference.
The first and second versions of the bill lapsed. The third version was
referred to the Committee, and in October 1974 the Committee tabled its
final report on both the clauses of the bill and on the general family
law matters that had previously been referred. Among the significant recommendations
was a recommendation to establish the Family Court. Nearly all of the
Committee's recommendations, including that one, were given effect either
by the bill as introduced or by amendments moved and carried in the Senate.
Constitutional Law
Constitutional matters are central to the Committee's work. They have
formed the subject matter of inquiries in their own right and have arisen
to be considered in the context of examination of Commonwealth legislation.
In 'Retiring Age for Commonwealth Judges', tabled in October 1976,
the Committee recommended, among other things, certain changes to the
Constitution to prescribe a retirement age of seventy for High Court judges.
The Australian Constitutional Convention subsequently adopted the Committee's
recommendations and the Government later introduced the Constitution Alteration
(Retirement of Judges) Bill 1977. The proposal for constitutional alteration
was passed at a referendum in May 1977 and the Constitution was amended
as had been recommended by the Committee.
Parliamentary Matters
It was this Committee which recommended that a parliamentary committee
be set up to scrutinise legislation that was before the Parliament for
transgression of fundamental civil liberties (see the Committee's 'Report
on Scrutiny of Bills', and 'Report on Delegation of Parliamentary
Authority', both tabled in November 1978). Although the Committee's
proposal for a joint committee was rejected, the Senate Standing Committee
for the Scrutiny of Bills was established in 1981, with terms of reference
largely formulated by this Committee.
Criminal Law
Criminal law has not been a major concern for the Committee - most criminal
law issues are matters for the states - but at least two of its reports
have been milestones in the area. 'The Burden of Proof in Criminal
Proceedings', tabled in November 1982, continues to influence research
and reform in this area of law. It has been recognised as an excellent,
non-partisan analysis of the issues by several leading journals, and the
government responded to the Committee that its recommendations, and the
principles underlying them, were and would continue to be influential
in resolving problems on a case-by-case basis (Senate, Hansard,
22 October 1984, p. 2126). The report has also figured prominently in
three major reviews of the legislation: in the (then) Human Rights Commission's
review of Commonwealth criminal law (see its report no 5, Review of
Crimes Act 1914 and Other Crimes Legislation of the Commonwealth,
AGPS, Canberra, 1983); in a review in 1985 by the Legal and Constitutional
Committee of the Parliament of Victoria, Report on the Burden of Proof
in Criminal Cases; and in the Commonwealth's continuing review of
aspects of Commonwealth criminal law, in which the Committee's work is
part of the standing terms of reference.
The other major aspect of the Committee's work in criminal law is its
inquiry into the National Crime Authority Bill 1983, introduced by the
newly elected government in November 1983. The Committee's inquiry, which
was conducted within five months, had a broad scope and was politically
sensitive. Thirty-nine of the Committee's forty-one recommendations were
adopted by the government, either wholly or in part, and the bill was
substantially amended. Amendment of the bill to set up the Joint Parliamentary
Committee on the National Crime Authority reflected a recommendation made
in a dissenting report.
Administrative Law
The Committee's involvement in administrative law reflects the development
of the Commonwealth legislative package known as the 'new administrative
law' during the 1970s. The Committee's first major piece of work in this
area was on the Freedom of Information Bill 1978 and aspects of the Archives
Bill 1978. In that report, the Committee canvassed many of the conceptual
issues in relation to freedom of information, and its implications for
a Westminster-style system of government, in addition to examining the
clauses of the bills. Many of the Committee's recommendations were accepted
and a revised Freedom of Information Bill was introduced in the Senate
in 1981. Some of the Committee's recommendations not accepted by the government
were given effect in amendments agreed to by the Senate and in a later
amending Act. Some years after the commencement of the Freedom of Information
Act, the Committee reviewed the Act's operation and administration. In
its report, tabled in December 1987, it made certain recommendations in
relation to 'fine-tuning' the freedom of information scheme in the Commonwealth.
Further in respect of the new administrative law, the Committee has had
a continuing relationship of some years duration with the Commonwealth
Ombudsman. On several occasions the Committee has reviewed the functions
of the Ombudsman's office by examining his annual reports to the Parliament
and discussing with the Ombudsman in public session issues raised in those
reports. Moreover, the Committee has a standing reference in relation
to the Ombudsman's special reports to the parliament. So far, the Ombudsman
has only made two such reports. The Ombudsman also made important submissions
to the Committee in its review of the operation and administration of
the Freedom of Information Act.
Legislation
The Committee has spent much of its time reviewing legislation or legislative
proposals. Often such matters have been referred to it in contentious
circumstances, such as aspects of the War Crimes Amendment Bill 1987 (see
its report tabled in February 1988), matters relating to the original
tax file number proposals (October 1988), and the Administrative Decisions
(Judicial Review) Amendment Bill 1987 (October 1987). On other occasions,
the reason for the referral has been the novelty of the scheme proposed
for example, by the Cash Transaction Reports Bill 1987 (April 1988). In
addition, the Committee has had many bills referred to it under the Senate's
system of referring bills to standing committees, instituted in 1990.
In most cases, these references have involved public hearings with relevant
experts, interest groups and the relevant minister and his/her advisers,
following which the Committee reports back briefly to the Senate. The
tight time frames for such referrals has meant that the Senate's legislative
program is able to continue unimpeded.
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