SCRUTINY OF ACTS ANO ' FIRST ANNUAL REPORT April1994 SCRUTINY OF ACTS AND REGULATIONS COMMITTEE FIRST ANNUAL REPORT April1994 Ordered to be printed MELBOURNE L. V. NORTH, GOVERNMENT PRINTER 1994 No. 81 409(F1) EXTRACTED FROM THE MINUTES OF THE PROCEEDINGS OF THE LEGISLATIVE COUNCIL TUESDAY 10 NOVEMBER 1992 16. SCRUTINY OF ACTS AND REGULATIONS COMMITTEE - The Honourable R.l. Knowles moved, by leave, That, contingent upon the Royal Assent being given to the Parliamentary Committees (Amendment) Bill, the Honourables L. Asher, W.A. Landeryou* and B.A.E. Skeggs be members of the Scrutiny of Acts and Regulations Committee. Question - put and resolved in the affirmative. *The Honourable W.A. Landeryou resigned on 10 December 1992. TUESDAY 30 MARCH 1993 6. SCRUTINY OF ACTS AND REGULATIONS COMMITTEE - The Honourable R.I. Knowles moved, by leave, That the Honourable J.M. Brumby* be a member of the Scrutiny of Acts and Regulations Committee. Question- put and resolved in the affirmative. *The Honourable J.M. Brumby resigned on 10 August 1993. TUESDAY 19 OCTOBER 1993 10. SCRUTINY OF ACTS AND REGULATIONS COMMITTEE - The Honourable R.I. Knowles moved, by leave, That the Honourable M.M. Gould be a member of the Scrutiny of Acts and Regulations Committee. Question- put and resolved in the affirmative. iii EXTRACTED FROM THE VOTES AND PROCEEDINGS OF THE LEGISLATIVE ASSEMBLY FRIDAY 13 NOVEMBER 1992 26. JOINT INVESTIGATORY COMMITTEES - Motion made, by leave, and question - That, contingent on the coming into operation of the Parliamentary Committees (Amendment) Act 1992- (i) Dr Coghill, Mr Jasper, Mr Perton, Mr Thompson (Sandringham), Mr Raper* and Mr Thwaites be members of the Scrutiny of Acts and Regulations Committee (Mr Gude) - put and agreed to. *The Honourable T.W. Raper resigned on 31 March 1994. iv SCRUTINY OF ACTS AND REGULATIONS COMMITIEE MEMBERS The Hon. Louise Asher, MLC Dr K.A. Coghill, MP The Hen. M.M. Gould, MLC Mr K.S. Jasper, MP Mr Victor Perton, MP (Chairman) # The Hon. T.W. Roper, MP The Hon. B.A.E. Skeggs, MLC (Deputy Chairman) Mr M.H. Thompson, MP Mr J.W. Thwaites, MP # Resigned 31 March 1994 STAFF Tanya Coleman Senior Legal Officer (on leave) HelenMason Interim Senior Legal Officer Vacant Research Officer Helen Roberts Assistant Executive Officer Richard Kings Office Manager Level19, Nauru House 80 Collins Street Melbourne 3000 Tel: 655 6965 V INTRODUCTION BY VICTOR PERTON, MP CHAIRMAN I have great pleasure in introducing the inaugural Annual Report of the Scrutiny of Acts and Regulations Committee concerning the scrutiny of primary legislation. The notion of the. scrutiny of Bills in Victoria was first mooted and indeed recommended in 1987 in a "Report on the Desirability or Otherwise of Legislation Defining and Protecting Human Rights" 1 prepared by the Legal and Constitutional Committee, the predecessor to this Committee. The call for the parliamentary scrutiny of Bills was repeated in 1990 in the Legal and Constitutional Committee's "Report upon the Constitution Act 1975". 2 17 November 1992 saw the birth of the Scrutiny of Acts and Regulations Committee, an all-party Parliamentary Committee. The work of the Committee is at times, complex and onerous. Much of it is completed during the Sitting Sessions of Parliament when time is limited and members are under extreme pressure. The Committee's work however is of great value and is increasingly considered a vital part of our democratic process. The review of subordinate legislation has been conducted in the Victorian Parliament since 1956 whilst the parliamentary scrutiny of Bills has been operating at the Senate level for more than a decade. The Committee therefore, although revolutionary in Victorian Parliamentary history, follows a distinguished tradition of review. It is important that the general public and members of Parliament become more aware of the Committee's work in examining Bills and conducting References into various Acts referred to it by the Governor-in Council. This report serves that purpose. The Committee's first year of existence has been busy and productive. It has considered 130 Bills in total and issued 20 Alert Digests. It conducted several Public Hearings in respect of a number of Bills. The Public Hearings have been well received both by the participating public and by the responding Minister. 1 Legal and Constitutional Committee, Report on the Desirability or otherwise of Legislation Defining and Protecting Human Rights. Aprill987 pp.l23 2Legal and Constitutional Committee, Thirty Ninth Report to the Parliament. Report upon the Constitution Act 1975 vii The Committee conducted References into the Equal Opportunity Act 19843 and the Subordinate Legislation Act 1962. Final Reports were tabled on each reference respectively. The Committee wishes to acknowledge the cooperation of the relevant Ministers and their prompt, detailed responses which undoubtedly contributed to the successful scrutiny of Bills. The work of the Committee is not easy for either side of politics but this is not unique to this Committee. What is unique to this Committee is that the Members of the Committee work under the particular strain of participating in the legislative processes of their parties but are then expected to be impartial and bipartisan, to critically analyse the legislation against the statutory criteria and its impact on the rights of various groups. I believe that the members have met these exacting standards expected by the community. I attended the United Nations Conference on Human Rights in Vienna in June 1993 as a member of the Australian Government delegation. The Deputy Chairman, The Honourable B.A.E. Skeggs MLC, also attended the Conference and played a constructive role representing Australia at the Non-Government Organisation Conference. A report on the Conference prepared by The Honourable B.AE. Skeggs MLC, and myself was tabled in Parliament. A further useful report prepared by The Honourable B.A.E. Skeggs MLC on his discussions with the Select Committee on the Scrutiny of Delegated Powers at the House of Lords, Westminster, was also tabled in the Parliament. In July 1993, the Committee hosted the Fourth Australasian and Pacific Conference on Delegated Legislation and the First Australasian and Pacific Conference on the Scrutiny of Bills. The Conference was extremely successful and provided the delegates who attended with valuable contact with other committees from other States, the Commonwealth, New Zealand and Canada. In particular, the conference generated discussion of many important issues and fostered a frank and fruitful exchange of ideas. As our Committee's work is mirrored in these jurisdictions, such involvement was considered beneficial to alL 3The Age, 7 April1994, p. 2. "Equal Opportunity Act may cover appearance Discrimination on the ground of personal appearance is one of several areas being considered in the Government's review of the Equal Opportunity Act 1984. Mrs Wade said the act needed a major overhaul, based largely on recommendations made last November by the Parliament's Scrutiny of Acts and Regulations Committee. That Committee recommended laws against discrimination on the grounds of age (compulsory retirement and youth wages), sexuality, pregnancy, family responsibilities, personal association or irrelevant criminal records. Mrs Wade said all the report's recommendations, which largely mirror laws already in place in other states or federally, would be taken into account in the new laws. But she would like to see Victorian laws go even further." See The Herald Sun, 7 April1994, p. 2. which printed a similar report. viii Rights Section 4D(a) of the Parliamentary Committees Act, introduced by the Premier, uses the words the rights and freedoms 4 of the in~ividual. The use of the word "rights" and not the words "human rights" followed the Federal Senate modeL Human rights have been generally argued to include civil and political rights and legal and political rights.s There is much greater division on the status of socio­ economic and cultural rights. At the first meeting of the Committee, the question "what is a right?" was raised and discussed. This discussion and subsequent interpretation was undertaken in the context of a committee made up of 9 individuals from 3 parties with differing philosophical positions. In the end, the Committee resolved to follow the Senate practice in so far as it was relevant and viable.6 Support for the Committee's approach is found in the works of academics and philosophers. " It could be suggested that the only proper use of the word rights is in relation to the rights which are recognised by the legal system of a state. Thinking of this kind is behind the view that human rights relate only to the relationship between the individual and the state, not to relations between individuals, and between individuals and corporations. There could be advantage in confining the word "rights" to relationships between individuals and the state, but common usage simply would not allow .. (this)." 7 The legislative charter of the Committee is broad. The word "rights" include natural rights and other moral rights established by the writings of the philosophers, jurists and churchmen. It most certainly includes the positive, empirical category of legal rights - rights whose existence is established by examining existing statutes, codes and decisions comprising the common law of Victoria. There are also internationally acknowledged human rights which can be found in the instruments of international and domestic law. Despite the complexity of analysis of "rights", the language used by the Committee is simple. There is no confusion between human rights and statutory rights although many human rights are protected by statute. On several occasions, in its 4Section 4D(a) of the Parliamentary Committee's Act 1%8 5Legal and Constitutional Committee, Report on the Desirability or otherwise of Legislation Defining and Protecting Human Rights. April1987, Chapter 2 pp.8-18 6Please refer to paragraphs 2.8 and 3.7 of the Report 7Peter Bailey, Human Rights: Australia in an International Context.