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. Butterworths, 1990 pp.4
ix considerations, including the Evidence (Unsworn Evidence) Bill,B the Committee has specifically referred to the fact that the right was merely a statutory right, although in that particular case, the right had been in existence for almost a century.
In a cooperative approach to complex problems, the Committee resolved to ensure that divisive matters were referred to the Parliament.9 This in turn, ensured that the Committee's deliberations did not pre-empt the parliamentary debate.
In our increasingly complex society with its many levels of government and its voluminous legislation, it is important that citizens' rights are not unduly eroded and that the legislation works for the benefit of the community.
The Committee, an all-party parliamentary committee has been described as "The Watchdog" of human rights.1° In a sense, that description is accurate but it must be remembered, in the final analysis, the integrity and ultimate success of the Committee depends on its ability to serve the Victorian Parliament and the people effectively. The Committee has this year, taken that first difficult but important step toward achieving that goal.
The committee is neither complacent nor self-satisfied. Many hours of discussion and thought have gone into improving the approach of the Committee and its analysis of legislation. Drafting of reports is done carefully. We are under constant scrutiny from our parliamentary colleagues and the press. At times, press coverage has been provocative. The Committee is continuing with a public education campaign which will reduce areas of misunderstanding.
I wish to thank all the members of the Scrutiny of Acts and Regulations Committee for their co-operation and continual support throughout the year. Thank you to all the staff for their diligence. Thanks too, toMs Helen Roberts and Mr Richard Kings, our administrative staff. Thank you also to our Senior Legal Officer, Ms Tanya Coleman and our interim Senior Legal Officer, Ms Helen M. Mason.
I commend the Report to the Parliament.
BScrutiny of Acts and Regulations Committee Reports to Parliament, Alert Digest Nos. 1-10, pp.2-3
9The Third formulation used by the Committee- "The provision diminishes existing rights but the Committee refers the question of whether the reduction is undue to Parliament for debate"
lOp}ease see Paragraph 1.8 of the Reporti Parliamentary Committees (Amendment) Bill (No. 2), Honourable M.A. Birrell (East Yarra) Legislative Council Hansard, May 20, 1992, pp. 841-843.
X TABLE OF CONTENTS
Page No.
Extracts of Committee Membership iii
Members and Staff V
Chairman's Introduction vii
CHAPTER1 Introduction 1
CHAPTER2 Overview of the Year -The Scrutiny of Bills - 11 The First Function
CHAPTERS The Interpretation of Principles 20
CHAPTER4 The Scrutiny of Regulations- 34 The Second Function
CHAPTERS The Review of Other Legislation - 39 The Third Function - The Subordinate Legislation Act 1962
CHAPTER6 The Review of Other Legislation - 41 The Third Function - The Equal Opportunity Act 1984
CHAPTER7 A Brief Summary of the Reported Bills 43
APPENDIX1 Table of Bills Reported on in 1993 63
APPENDIX2 Index of Reported Bills in Alert Digests 76
Extracts from the Proceedings of the Committee 79
Minority Report by The Hon L. Asher, MLC 83
xi
ANNUAL REPORT
CHAPTER1
INTRODUCTION
1.1
This is the first Annual Report which the Scrutiny of Acts and Regulations Committee has presented to Parliament on its statutory function of the scrutiny of primary legislation. The Report covers the period from 17 November 1992, the date of the formal establishment of the Committee, to February 1994.
1.2 The Functions of the Committee
The Committee has several functions. Its first function is to scrutinize primary legislation ie: all new bills as they make their passage through parliament. Its second function is to scrutinize all subordinate legislation ie: all statutory regulations. Third, the Committee reviews any particular piece of legislation referred to it by the Governor in Council or any other Act where required to do so under the Parliamentary Committees Act 1968. This year the Committee specifically reviewed the Equal Opportunity Act 1984 and the Subordinate Legislation Act 1962 and tabled a report on each respectively. It also produced a "Report on Commencement by Proclamation" which was tabled on 19 April1993.
1.3
This report deals principally with the first and third functions of the Committee, ie: the scrutiny of bills and the review of specific legislation, although reference is made to its role in scrutinizing subordinate legislation. For a more detailed report on subordinate legislation, reference should be made to the "Third Report on Subordinate Legislation- Annual Report concerning Statutory Rules Series 1992" which was tabled in October 1993.
1.4
The Committee's first year of existence has seen the successful evolution of working practices within the Committee. Each Bill has been carefully considered by the Committee and reported on to the Parliament in the Alert Digest where appropriate. The Committee wishes to acknowledge the cooperation of the relevant Ministers and their prompt, detailed responses which contributed to the successful scrutiny of Bills.
1.5 The History of the Committee
The parliamentary scrutiny of Bills has been operating at the Senate level for at least a decade. The scrutiny of Bills in Victoria was first recommended 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 the Committee.l
1.6
In the report the Committee wrote:
This Committee believes that an immediately obvious task which should fall to the Committee which is to deal with matters of human rights would be the scrutiny of all Bills introduced into either House of the Parliament. The object of this scrutiny would be to enable the Committee to report to the Parliament upon the question of whether such Bills unduly trespassed upon rights and freedoms ..... "2
1.7
The call for the parliamentary scrutiny of Bills was repeated in the Legal and Constitutional Committee's "Report upon the Constitution Act 1975" in 1990.3 That report reiterated the need for priority to be given to the protection of human rights.
1.8
On 20 May 1992, the Honourable Mark Birrell, the Leader of the Opposition in the Upper House at the time, introduced a Private Member's Bill to confer on the Legal and Constitutional Committee, the Committee's predecessor, the scrutiny of Bills function. The Bill was never debated in the Legislative Assembly. Following is an extract from the Second Reading Speech:4
"The purpose of this Private Member's Bill is to create a new watchdog over our rights and freedoms, designed to protect ordinary citizens from the legislative errors or failings that would act against the public interest.
This Bill gives the Victorian Parliament the vitally important scrutiny of bills function, by conferring this new power on the Legal and Constitutional Committee. The object of such scrutiny would be twofold.
Firstly, to enable the Committee to report to Parliament on the question of whether such Bills unduly trespass upon rights and freedoms. Secondly, to enable the Committee to report to the Parliament on the question of whether the Bill raises an issue as to the jurisdiction of the Supreme Court, or repeals, alters or varies section 85 of the Constitution, and whether, if it does, it is appropriate.
Legal and Constitutional Committee, Report on the Desirability or otherwise of Legislation Defining and Protecting Human Rights. April1987. 2 Ibid pp. 125. 3 Legal and Constitutional Committee, Thirty-Ninth Report to the Parliament. Report upon The Constitution Act 1975. 4 Parliamentary Committees (Amendment) Bill (No.2), Honourable M.A. Birrell (East Yarra) Legislative Council Hansard. May 20, 1992, pp. 841-843.
2 It is now widely acknowledged that the workload of the Parliament does not always enable Parliamentarians to consider the implications of legislation in terms of human rights or, where applicable, the impact of legislation on the jurisdiction of the Supreme Court. This significant shortcoming has been recognised by prominent members of the public, the media, the judiciary and by the Parliament's Legal and Constitutional Committee.
This Bill is based on the recommendations of the Legal and Constitutional Committee and its 1987 report on "Legislation defining and protecting human rights" ...... The Legal and Constitutional Committee is an all-party, joint House Committee of both Houses of Parliament. It is appropriate that questions of human rights should be addressed by a joint Committee, as such questions concern the whole of the Parliament and it is, therefore appropriate that representatives from each political party, which should ensure the consideration of a broad range of views.
The scrutiny of Bills procedure had been operative in the Australian Senate for over a decade. Evidence on the operation of the Senate scrutiny of Bills Committee indicates that it is productive, is a valuable safeguard and that it causes no undue delay in the legislative process.
It is important to understand that the new 'Scrutiny of Bills Committee'(acting as part of the Legal and Constitutional Committee)would have the responsibility to report in respect of a Bill within the time available for its debate to either House. Its failure to do so would not mean that Parliament could not proceed in its consideration of the Bill. In practice the Committee would scrutinise the Bill during the interval between the Second Reading Speech and the resumption of the debate, a period which would normally comprise at least a fortnight.
The background to this proposal is that during the past few years the volume of prospective legislation introduced into the Victorian Parliament has increased tremendously. Many Bills are introduced late into the session, with the expectation that they will be passed in the session. This places a great strain on members and will no doubt place a strain on the Scrutiny Committee to make its reports available for consideration.
Representatives of the Senate have advised that consideration of Bills under such circumstances is not an impossible task. Indeed, if the Parliament is reasonably expected to consider and pass them within the time, the task of the Legal and Constitutional Committee of scrutiny becomes all the more important. Members of the Parliament must be afforded the opportunity to acquaint themselves with the implications of legislation in terms of human rights. Reports by the Committee would ensure members had such an opportunity ......
The overwhelming purpose of this initiative is to ensure that members of Parliament are aware that a particular law may fall below the appropriate standard and that the consequences of this will be debated and understood before any Bill becomes law. I am sure every member would agree that, to bring in laws without the full implications being considered by all members at the time, is a situation which ought to be avoided, and the scheme proposed by this Bill provides a sound alternative.
3 We trust in the spirit of more informed debate and even better legislation that this Bill will receive bipartisan support and that potential legislation is therefore given even more rigorous analysis in Victoria"
1.9
On 29 October 1992, the Premier introduced the Parliamentary Committee~ (Amendment) Bill to the Legislative Assembly. Following is an extract from the Second Reading Speech:
"I have had the pleasure and opportunity of being a member of this House for almost 17 years. During that period one element I have always thought Parliament lacked, regardless of whether my party was in government or opposition, was any fundamental attempt within the party structure to develop a career path for those who served.
It always concerned me that new members of Parliament enter a foreign environment. Parliament has no career structure such as that which exists in the corporate sector or in other professions. I promised myself that if given the opportunity I would introduce a committee system that would provide members of Parliament with a career structure so that they could work towards being a Minister of the Crown rather than sitting back and waiting for that opportunity to be given to them.
This Bill and the Parliamentary Salaries and Superannuation (Further Amendment) Bill is the government's attempt to create a career structure that will allow members of Parliament to direct their endeavours to working in a defined system. The measure addresses one aspect of that - the Parliamentary committee system.
The Bill reforms the current system of joint investigatory committees. Over the past few years the joint committees of Parliament fell into disrepair; they were dependent on references being provided by the then government. Once the references ceased to be as frequent the committees were underutilised. That affected not just the members of those committees but also the staff who, on occasion, had nothing to do. At one stage the Natural Resources and Environment Committee did not have a reference at a time when the community was commenting on matters of critical importance to the environment.
My government is concerned to ensure that an effective and efficient system of committees exist, and that they target the critical issues facing our community. To that end, the Bill provides for the establishment of seven joint-investigatory committees and two specific-purpose committees. They will be the Public Bodies Review Committee; the Scrutiny of Acts and Regulations Committee; the Law Reform Committee; the Environment and Natural Resources Committee; the Public Accounts and Estimates Committee; the Community Development Committee; and the Economic Development Committee.
The Scrutiny of Acts and Regulations Committee will have a more extensive role than the former Subordinate Legislation Subcommittee of the Legal and Constitutional Committee. Although it will continue the former committee's functions under the
4 Subordinate Legislation Act, it will scrutinise Bills as they are being considered by Parliament. That process will be more effective than what occurred previously when problems in legislation became apparent after they became law.
An active, well focused system of Parliamentary committees has two broad objectives. Firstly, it is a critical part of the accountability of any government to Parliament. Secondly, it enables measures to be developed which can improve the economic, legal and social well-being of Victorians.
I say to all those who will serve on the Parliamentary committees that I am sure the committees will do a valuable job. Through continuity of membership and the discussion of ideas the committees will bring forward recommendations that will enhance the lifestyles of all Victorians.
I commend the Bill to the House."
1.10 The Present Committee
The Scrutiny of Acts and Regulations Committee was created by the Parliamentary Committees (Amendment) Act 1992 on 17 November 1992. Its Terms of Reference are set out in section 40 of the Parliamentary Committees Act 1968 and below:-
"(a) to consider any Bill introduced into a House of Parliament and to report to the Parliament as to whether the Bill, by express words or otherwise -
(i) trespasses unduly upon rights or freedoms; or
(ii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers; or
(iii) makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions; or
(iv) inappropriately delegates legislative power; or
(v) insufficiently subjects the exercise of legislative power to Parliamentary scrutiny; and
(b) to consider any Bill introduced into a House of Parliament and to report to the Parliament -
(i) as to whether the Bill by express words or otherwise repeals, alters or varies section 85 of the Constitution Act 1975, or raises an issue as to the jurisdiction of th~ Supreme Court;
(ii) where a Bill repeals, alters or varies section 85 of the Constitution Act 1975, whether this is in all the circumstances appropriate and desirable; or
5 (iii) where a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue; and
(c) such functions as are conferred on the Committee by the Subordinate Legislation Act 1962;and
(d) to review any Act where required so to do by or under this Act, in accordance with terms of reference under which the Act is referred to the Committee."
1.11
It should be noted that other Parliaments in Australia which scrutinize legislation use the narrower term "Bills" since they examine legislation prior to enactment. The Committee however takes references to examine Acts of ParliamentS Accordingly, the inclusive term"Acts" is part of the Committee's title.
1.12
At the first meeting of the Committee, Mr K.S. Jasper MP was elected Chairman of the Committee. Dr Ken Coghill was elected as the Deputy Chairman of the Committee. At the second meeting Dr Coghill MP, introduced a Motion seeking to have an alleged breach of privilege referred to the Legislative Assembly Privileges Committee. The motion was defeated, by five votes to four. Mr Jasper then resigned as Chairman after presiding in that position for one week. Mr Victor Perton MP, was subsequently elected Chairman of the Committee. At the third meeting a further motion was passed by five votes to four. That motion declared the position of Deputy Chairman vacant. The Honourable Mr Skeggs MLC, was then elected Deputy Chairman of the Committee. In 1993, the members of the full Committee were The Honourable L. Asher MLC, Dr K.A. Coghill MP, The Honourable M.M. Gould MLC, Mr K.S. Jasper MP, Mr Victor Perton MP, The Honourable T.W. Roper MP, The Honourable S.A.E. Skeggs MLC, Mr M.H. Thompson MP and Mr J.W. Thwaites MP, ie: 4 Labor Party members, 4 Liberal Party members and 1 National Party member. The Honourable J.M. Brumby MLC, was appointed on 30 March 1993 and resigned on 10 August 1993. His replacement, The Honourable M.M. Gould MLC, was appointed on 19 October 1993.
1.13 The Sub-committees
The Subordinate Legislation Sub-committee
Sub-committees were formed to give some flexibility to the work practices of the Committee and to ensure that it would accommodate its workload. The members of the Subordinate Legislation Sub-committee were Dr K.A. Coghill MP, Mr Victor Perton MP, The Honourable B.A.E. Skeggs MLC, Mr M.H. Thompson MP and Mr J.W. Thwaites MP.
5 See, for example, the Scrutiny of Acts and Regulations Committee Report into the Subordinate Legislation Act 1962 and the Scrutiny of Acts and Regulations Committee Report into the Equal Opportunity Act 1984.
6 1.14 The Employment Sub-committee
The members of the Employment Sub-committee were Or K.A. Coghill MP, Mr Victor Perton MP and The Honourable B.A.E. Skeggs MLC.
1.15 The Equal Opportunity Sub-committee
Mr Perton was elected Chairman of the Sub-committee. The members of the Equal Opportunity Sub-committee were The Honourable L. Asher MLC, Or K.A. Coghill MP, Mr Victor Perton MP, The Honourable B.A.E. Skeggs MLC and Mr J.W. Thwaites, MP.
1.16 The Subordinate Legislation Act Inquiry Sub-committee
Mr Jasper was elected Chairman of the Sub-committee. The members of the Subordinate Legislation Act Inquiry Sub-committee were Or K.A. Coghill MP, Mr K.S. Jasper MP, Mr Victor Perton MP, The Honourable T.W. Roper MP, The Honourable B.A.E. Skeggs MLC and Mr M.H. Thompson MP.
1.17 The Redundant Legislation Sub-committee
The Honourable B.A.E. Skeggs was elected Chairman of the Sub-committee. The members of the Redundant Legislation Sub-committee were Or K.A. Coghill MP, Mr Victor Perton MP, The Honourable T.W. Roper MP and Mr M.H. Thompson MP.
1.18 The Question of Human Rights
Central to the Committee's task in scrutinizing primary legislation is the question of human rights. How are human rights defined? Whilst the Committee is limited by its Terms of Reference which are set out in section 40 of the Parliamentary Committees Act 1968, the concept of human rights which it embodies is extremely broad. "Rights" or "Freedoms" can extend from the right to have freedom of speech and freedom of movement to the right not to have excessive fees imposed. Anything which erodes or replaces an existing right may be interpreted as trespassing unduly upon that right. The Committee draws from the collective political experience of its members, the legal advice from its Senior Legal Adviser and common sense in interpreting the provisions of the Act. Reference should be made to Chapter 3 of this Report for a more detailed analysis of the Interpretation of Principles.
1.19 The Committee's work in the scrutiny of primary legislation
The Committee produced 20 Alert Digests and 2 Cumulative Reports during 1993 Those documents together with this Annual Report form the authoritative record of the activities of the Scrutiny nf Acts and Regulations Committee in the scrutiny of primary legislation.
7 1.20
The Committee believes that it is important and useful to add to its regular Alert Digests and Cumulative Reports a central document such as this, which will pinpoint developments and trends in matters coming within its statutory charge. It will also make comment on matters of drafting practice and questions of style.
1.21
While the Committee contains members of all major political parties and from both Houses, it has exercised a strong bipartisan approach to its task.
1.22
In relation to its scrutiny of legislation function the Committee receives the advice and assistance of its Senior Legal Adviser /Executive Officer.
1.23
The timetable of the Committee may be diagrammatically presented in the following flow chart:
Alert Digests Cumulative Reports Weekl Morning Friday Senior Legal Officer completes preparation of draft Alert Digest on all new bills introduced in both Houses during the week. Afternoon Committee meets to settle Alert Digest No.l. Week2 Ministers' offices alerted to Monday draft Alert Digest No.l comments, seeking responses as soon as possible. Week2 Alert Digest No.l prepared Tuesday with Ministerial correspondence included if available, for tabling in both Houses after Question Time. Week2 Cycle recommences for Alert Friday Digest No. 2 Morning Senior Legal Officer completes preparation of Alert Digest No.2 on all new bills introduced in both houses during the week. Afternoon Committee meets to settle Alert DigestNo.2
8 Week3 Ministers' offices alerted to Monday draft Alert Digest No.2 comments, seeking responses as soon as possible Week3 Alert Digest No.2 prepared Tuesday with Ministerial correspondence included if available for tabling in both Houses after question time. Week3 Cycle recommences for Alert Replies received after tabling of Alert Wednesday Digest No.3. Committee meets Digests 1 and 2 and incorporated in to settle Alert Digest No.3. draft First Cumulative Report. Week4 Alert Digest No.3 prepared for First Cumulative Report prepared for Tuesday tabling in both Houses after tabling in both Houses after Question Question Time. Time (together with Alert Digest No.3).
1.24
The Committee has refined its modus operandi over the months. The general practice of the Committee is to consider the draft Alert Digest provided by the Senior Legal Adviser at the meeting. Any issues raised by Committee members are then sent by letter to the responsible Minister. Frequently, there is no time to incorporate a Minister's response because of the time constraints between the Committee's meetings to consider the draft Alert Digest on the Friday, and the subsequent publishing of the Alert Digest the following Tuesday.
1.25
The Chairman is in fact the first to receive a preliminary draft of the Alert Digest. The Chairman has a discretion to draft a letter to the responsible Minister, raising with him or her, any matters in the draft Alert Digest and any extra matters raised with him by Committee members. The letter points to possible matters of concern or issues which could be raised at the Committee meeting and asks the Minister for a prompt explanation of any matters. It should be understood that although the Chairman is entitled to exercise his discretion, it is not part of the Committee's general practice to send a letter to the responsible Minister in every instance. The Chairman's exercise of his discretion is the exception rather than the rule. The Committee has adopted this method, hoping to be in a position to inform the Parliament as fully as possible, by including extracts of the relevant Ministerial correspondence in the Alert Digest. The Committee notes that Ministers have responded promptly and in great detail where possible.
1.26
Less frequently, the Committee tables Cumulative Reports on Bills previously dealt with in Alert Digests. These Cumulative Reports include Ministerial comment and other relevant material received by the Committee subsequent upon tabling the Alert Digests. It is also a vehicle for the Chairman to explain to the Parliament, in the Introductions to each Report, the direction which the Committee is taking on various matters. Whilst the time constraints under which the Committee is to work
9 were anticipated at its formation, there is merit in evaluating any procedural initiative which would extend the time available for the scrutiny of Bills and the receipt of public submissions.
1.27 Public Hearings
During 1993, the Committee held a number of public hearings.6 Written submissions were called for by public advertisement and by letter to diverse interest groups. On the strength of the submissions made, individuals or groups were invited to participate in and give oral evidence at the Public Hearings and enlarge upon the written submissions.
1.28
Whilst there have been time constraints on the hearing process, the public hearings have been generally well received by participants, observers and responsible Ministers alike. On occasions, Ministers have made advisers available to the Committee. Some excellent submissions have been made to the hearings which have assisted the Committee to form considered judgements on some of the issues raised.
The present means of notifying the public and interested parties of a forthcoming public hearing is by way of advertisement in the newspapers and direct soliciting of submissions.
1.29 Time constraints encountered by the Committee
The Committee has encountered practical difficulties as a result of time constraints. The Committee receives Bills after the Second Reading Speech. This has meant that on occasions, there has been a very limited time frame within which to examine Bills. These time constraints have placed great pressure on the Committee
1.30
The Committee is aware that some departments draft Bills well in advance of their introduction to Parliament. The suggestion has been made that Parliamentary procedures be varied so that where Bill is complex but non-controversial, the Committee may receive draft Bills in advance, where appropriate, to assist the scrutiny process. A dear distinction needs to be drawn between those Bills which are settled and have the overall approval of the government of the day, and those which are still draft Bills and have not been approved by Cabinet and the relevant backbench committees. Draft bills circulated to community interest groups would be appropriate for this procedure.
In any event, the Bill would only be used for the purpose of internal committee analysis and consultation with the Minister and not for publication or report.
6 See also Paragraph 2.8.
10 CHAPTER2
OVERVIEW OF THE YEAR- THE SCRUTINY OF BILLS- THE FIRST FUNCTION
2.1 The Scrutiny of Bills - The First Function
During the course of the year, the Committee held 42 meetings, which included 4 public hearings. It issued 20 Alert Digests and 2 Cumulative Reports. The Committee considered 130 Bills in total. The Committee reported, made comment on or explained provisions of 71 or 54% of the Bills.
2.2 Section 85 of the Constitution Act 1975
Of the Bills reported, 29 Bills or 41% related to section 85. Of the 41% relating to section 85, 25 Bills or 86% were considered appropriate on the basis of the Minister's Second Reading Speech. Only 4 Bills out of the 29 or 14% were considered to require further explanation and correspondence was forwarded to the relevant Minister.
2.3 No amendments necessary
Of the Bills reported, 33 out of 71 or 46% did not require any further amendment as the Committee were satisfied with the explanations given to the various provisions.
2.4 Proposed amendments or Undertakings to amend
Of the Bills reported as possibly breaching the Committee's criterion, 13 out of 38 or 34% were the subject of undertakings to amend and have been amended by the relevant Ministers.
2.5 The Scrutiny of Regulations - The Second Function
During the course of the year, the Subcommittee of Subordinate Legislation held 22 meetings. The Committee reviewed 278 Regulations in total. With respect to the Committee's second function, further reference should be made to Chapter 4 of this Report. For a complete review, reference should also be made to the "Third Report on Subordinate Legislation- Annual Report concerning Statutory Rules Series 1992."
2.6 The Review of other Legislation- References -The Third Function The Equal Opportunity Act 1984 and the Subordinate Legislation Act 1962
The Governor-in-Council referred two pieces of legislation to the Committee for review, namely the Equal Opportunity Act 1984 and the Subordinate Legislation Act 1962. With respect to the Committee's third function, reference should be made to Chapters 5 and 6 of this Report. For a complete review, reference should also be made to the "Review of the Victorian Equal Opportunity Act 1984- Interim Report" tabled in October 1993, the "Review of the Victorian Equal Opportunity Act 1984- Final Report" tabled in November 1993 and the "Report upon an Inquiry into the Subordinate Legislation Act 1962" tabled in November 1993.
11 2.7 The Year- The Scrutiny of Bills
The first year of the Committee's life has seen an evolution in the practices adopted by the Committee. Development is evident partly in the format of the Public Hearing procedure and secondly, in the Committee's manner of approach to the Minister responsible for a Bill.
2.8 The Public Hearings
The inclusion of the Public Hearings as part of the Committee's practice originally stemmed from the self criticism of the members of the Senate Standing Committee which was articulated at their lOth anniversary conference. Essentially, the Senate Committee members were disappointed by the tight times imposed by the Parliamentary sittings, which meant that members of the public or interested parties were unable to have any input where there were matters of concern.
2.9
This year, the Committee has held Public Hearings on 6 Bills, namely;
• the Evidence (Unsworn Evid~nce) Bill- 24 March, 1993 • the Corrections (Management} Bill - 24 March, 1993 • the Police Regulation (Discipline} Bill- 10 May, 1993 • the Sentencing (Amendment) Bill- 10 May, 1993 • the Land Titles Validation Bill 3 August, 1993 • the Crimes (Amendment) Bill- 5 August, 1993
2.10
Public Hearings were also held in respect of the Inquiries into the Subordinate Legislation Act 1962 and the Equal Opportunity Act 1984. Further reference is made to the Inquiries in Chapters 5 and 6 respectively.
2.11
Public Hearings of the Scrutiny of Acts and Regulations Committee have been well received both by the participating public and by the responding Minister. For example, on 5 August 1993, the Committee held an extensive Public Hearing on the Crimes (Amendment) Bill. Written evidence was received from a dozen groups including the Commissioner of Police, the Victorian Justice Department and several groups closely connected with children's issues. Oral evidence was heard from representatives of five of these organisations.
2.12
All oral evidence was recorded and retained in Transcripts of Evidence. An extensive draft report on the Bill was then prepared, incorporating many matters of concern raised by witnesses as well as some raised by the Committee itself. An advance draft was sent to the Attorney-General, who decided to set up a Working Party to look at the Committee's exposition of the Bill. As a result, the Crimes
12 (Amendment) Bill was withdrawn from the Parliament for extensive redrafting and subsequently returned to the Parliament as the Crimes (Amendment) Bill No.2.
2.13
In correspondence with the Committee, the Attorney-General thanked the Committee. In respect of the Crimes (Amendment) Bill1993, the Attorney-General wrote on 21 September 1993; "I refer to my letter of 18 August 1993 regarding your Committee's report on the Bill.
The extensive consultative process which I have undertaken on the Bill is now virtually complete. Copies of the Bill and my second reading speech were sent to numerous agencies and individuals on 21 May 1993, the day after the Bill was introduced. On 28 July all persons to whom the Bill was sent were informed that I had formed a Committee to consider submissions on the Bill. The Police Powers Committee has considered all the submissions and has made detailed recommendations to me. I have considered all the comments received on the Bill and am likely to propose some changes to portions of the Bill. I will ensure that your Committee is sent a copy of those amendments as soon as they are resolved and drafted.
It has come to my attention that the Statement to Parliament in my second reading speech as required by section 85(5) of the Constitution Act omitted to refer to proposed section 464ZI(a).This omission will be addressed. I would like to take this opportunity to thank the Committee for its valuable and thorough work on the Bill to date."
2.14
As the year passed, procedures were implemented for responding to the Committee's concerns. The practice was initiated of advising Ministers when appropriate, prior to a Committee meeting of possible causes for concern arising out of a Bill. This allowed the Minister time to respond to these possible concerns prior to a Committee meeting, with the subsequent inclusion of the Minister's reply in an Alert Digest if considered appropriate. Cooperation with the Committee was generally very good and the Committee was pleased to acknowledge Ministerial explanations where applicable.
2.15
A copy of an Alert Digest was sent to each responding Minister. Copies of Alert Digests and Cumulative Reports were distributed to all members of the Parliament and extra copies were made available to the public at the Papers Offices of the two Houses. At the end of each Parliamentary Session of the year, the Alert Digests and Cumulative Reports for that session were collected together and formally printed.
13 2.16 The First Australasian and Pacific Conference on the Scrutiny of Bills and The Fourth Australasian and Pacific Conference on Delegated Legislation 28-30 July, Melbourne, 1993
On 28-30 July, 1993 the Committee hosted the First Australasian and Pacific Conference on the Scrutiny of Bills, in conjunction with the Fourth Australasian and Pacific Conference on Delegated Legislation.
2.17
The scrutiny of both primary and delegated legislation is developing at a national level with all the States taking an active interest. Parliamentary members and staff from Committees in every State attended the conference. By hosting the conference, the Committee has played its part in developing the awareness of the Executive, the Parliament and the public as to the scrutiny function. The Committee hopes to continue in this role as "the quest for scrutiny" advances.
2.18
Papers on aspects of the Scrutiny of Bills functions were presented by Senator Amanda Vanstone, Mr Victor Perton MP, and the Honourable David Caygill from New Zealand. An interesting commentary from the NSW delegation, entitled "Why Regulatory Scrutiny is so far in Advance of Legislative Scrutiny" completed the session. There is clearly a link between the two forms of parliamentary scrutiny, and in Victoria's case, it is true to say that the recognition and success the Committee has enjoyed in regulatory scrutiny has borne fruit in a growing respect for the legislative scrutiny of the Committee. In that sense, the Victorian Committee has played an important role in the development of scrutiny activities.
2.19
The following Resolution was made at the Conference:
"That this Conference calls on the Standing Committee of Attorneys-General to;
Establish and fund a working party representing each Parliamentary Subordinate Legislation and Scrutiny of Bills Committee to report:
(i) on the possibility and/or desirability of establishing uniform principles on
o scrutiny of legislation • scrutiny of bills
(ii) the method and means of ensuring proper public consultation and parliamentary scrutiny of statutes and/or instruments of delegated legislation developed as part of the process of mutual recognition and harmonization of statutes and regulations."
14 2.20
Essentially, it was felt at the Conference that it was most desirable that there be uniform principles established in the scrutiny of regulations and bills. The Resolution called firstly, for the establishment of those principles; such uniformity would help promote the process of mutual recognition between the States. Secondly, the Resolution called for an adequate method and means of ensuring proper public consultation in the legislative process.
2.21 The Report on Commencement by Proclamation
The Committee's existence has had an impact on legislative drafting practice. On 19 April 1993 it tabled a Report on Commencement by Proclamation. This Report endorses a practice of restricted proclamation clauses, where a Bill must commence either on Royal Assent or by a named date.
2.22
Modelled on the Commonwealth policy, the Committee advocated that where legislation was to commence by proclamation, there be included as well either a 'Forced Commencement' or a 'Forced Repeal' provision. This recommendation has been taken up almost without exception.
2.23
The Committee has enjoyed a good rapport with the Senate Standing Committee on the Scrutiny of Bills and has developed links with the Standing Committee on the Scrutiny of Bills and Subordinate Legislation of the Parliament of the Australian Capital Territory. The Committee acknowledges with gratitude the occasional advice given to it by the former Committee and records the useful visits to Canberra which the Scrutiny of Acts and Regulations Committee made in 1993 for the purpose of cementing links with its two "sibling" Committees.
2.24 The Scrutiny of Legislation Committees Conference - 11 February Brisbane - 1994 - National Scheme Legislation
A delegation of Committee members and the Senior Legal Adviser attended the Scrutiny of Legislation Committees Conference in Brisbane on 11 February, 1994. Much of the discussion was devoted to the development of review mechanisms of National Scheme Legislation.
2.25
Mr Mark Gray representing The Honourable K De Lacy MLA, the Treasurer of Queensland delivered a paper on "National Scheme Legislation" from a Ministerial Perspective". Mr Gray addressed the three possible ways by which national uniform legislation can be achieved, namely;
15 (a) The States and Territories may cede power to the Commonwealth. The Commonwealth then enacts a law which applies nationally.
(b) "Model" legislation whereby the States and, if necessary, the Commonwealth agree to pass the same legislation on a particular matter. Amendments and regulations to the legislation are passed separately by each party to the Agreement.( e.g. the Uniform Companies Act 1961)
(c) "Template" legislation in which the legislation is passed by a "host" jurisdiction and subsequently adopted by the other parties to the scheme via an application of laws mechanism.(e.g. the Financial Institutions Scheme and the NCSC and Asc schemes)
Mr Gray discussed the advantages and disadvantages of each alternative and concluded by emphasising the need for co-operation and communication on the political, administrative and operative levels.
2.26
Mr John Leahy, Queensland Parliamentary Counsel, delivered a paper entitled "Drafting Responsibility When Policy Dictates National Scheme Legislation". Mr Leahy introduced the topic by stating that the traditional perspective of a drafter as a highly skilled but narrow legal specialist is outdated. He was of the view that there was inevitable and necessary interaction between pure policy and pure drafting. He examined in detail, three specific responsibilities which belong to the drafter, namely;
(a) The need to achieve national consistency of text and outcomes.
(b) The need for additional aids for users of National Scheme Legislation so that all matters dealt with in the document could be readily found and understood.
(c) The need to ensure that there is sufficient regard to fundamental legislative principles.
Mr Gray concluded that these are only three of the major problems which face drafters in this area. He stated that given the increasing trend toward National Scheme Legislation, these issues will require further attention in the future.
2.27 Conference Resolutions -Brisbane- 1994
Mr Perton chaired the general discussion as to the Resolutions and the similarity of Committees' Terms of Reference and the best way this could be used in dealing with the review of National Scheme Legislation. The Resolutions made at the Conference in July, 1993 were raised at the Standing Committee of Attorneys-General (SCAG) in November, 1993.
16 2.28
As a result the SCAG meeting, the Victorian Attorney-General wrote to the Committee on 3 February, 1994.
"I refer to your letter of 30 July 1993 which I referred to the SCAG meeting in Sydney on 4 November 1993.
It is fair to say that there was no enthusiasm among the Attorneys-General for developing uniform scrutiny principles, or grounds which might give rise to comment by scrutiny committees.
Committees such as yours provide a mechanism to review executive government action. To involve ministers of the executive government in a general uniformity exercise would, in the view of the SCAG Ministers, intrude upon the proper independence of Parliament and its committees from the executive government.
The SCAG Ministers suggest, therefore, that this matter should be taken up by your Committee with the Council of Heads of Australian Governments.
In doing so, your Committee might well give some consideration to my view that there could well be a strong case for developing uniform scrutiny principles to deal with legislation which forms part of a uniform national scheme.
I hope these comments will be of assistance to you and your Committee."
2.29
The following Resolutions were made at the Conference.
"(1) Endorse the Resolution of the 1993 Conference on Delegated Legislation and an the Scrutiny of Bills recommending that, prior to Ministerial Councils agreeing to the introduction of uniform or complementary bills or delegated legislation:
(a) details of the proposals as draft legislation; (b) supporting discussion papers etc; (c) the opportunity far comment in response;
be provided to relevant Parliamentary Committees in participating jurisdictions and others as standard practice:
(2) Recommend that each Parliamentary Committee with Terms of Reference relating to delegated legislation and/or scrutiny of bills or far Committee members in their capacities as private members to:
(a) refer to other affected jurisdictions far comment;
17 (b) comment in response, and if desired report to its own Parliament, having regard to its own Terms of Reference and the Terms of Reference in other jurisdictions, on -
any delegated legislation or bill introduced as part of a national scheme.
(3) That a working party be set up to draw uniform Terms of Reference that should reflect the following criteria:
(a) The Committee should look firstly at the legality of the regulation, including the issue of whether it is within the general objects and spirit of the legislation under which it was made;
(b) The Committee should then examine whether the regulation trespasses unduly on personal rights and liberties;
(c) The Committee should then proceed to the third fundamental issue of whether, having regard to the expected social and economic impact of the regulation , it is in the best interests of the community;
(d) That all the Chairs from each Committee be invited to attend the working party but that any three Chairs form a quorum. That if any of the Chairs are absent from the working party or are unable to attend, then the other Chairs advise them of the proceedings or the work being undertaken;
(4) That this meeting, acting on the advice of the SCAG, resolves to establish a working party to approach the Council of Heads of Australian Government to adopt a mechanism whereby each proposed National Scheme of Legislation and/or Regulation be subjected to scrutiny by a Parliamentary Committee (Committees) under the general heads of Legislative Scrutiny, namely;
(a) In the case of subordinate instruments, legality;
(b) Whether the legislation detrimentally affects rights and liberties of citizens;
(c) Whether the costs to the community would exceed the benefits
before passing or proclaiming it."
2.30 Future Directions For Scrutiny Committees
By the establishment of working parties to draw up uniform Terms of Reference and to approach the Council of Heads of Australian Government, the Scrutiny Committees in Australia are working toward the development of a national regulatory code in respect of national legislation.
18 2.31
The Committee's effectiveness will be seen particularly in the longer term, as legislative drafting becomes increasingly free of reportable matters. It believes it has an influence for good and for the education and information of parliamentarians and public servants alike. Its desire is to assist in the protection of human rights in Victoria by alerting Parliament to possible incursions upon those rights in Bills.
2.32 International Covenants
During 1993, several Bills included provisions to which International Covenants were relevant. The Committee played a role in informing Parliament of the place of these Covenants in our domestic law and in making available copies of the documents to all interested persons.
19 CHAPTER3
THE INTERPRETATION OF PRINCIPLES
3.1
As previously mentioned, the Committee has been able to gain various insights into the interpretation of section 4D(a) of the Parliamentary Committees Act 1968 from the practice of the Senate Standing Committee on the scrutiny of Bills. Standing Order 24A of the Senate Standing Orders contains identical principles to those contained in sub-paragraphs (i} to (iv) of section 4D(a) of the Parliamentary Committees Act 1968. In addition, the Committee has over the year developed its own supplementary rules of interpretation.
3.2 Section 4D(a) of the Parliamentary Committees Act 1968
Much of the Committee's time has been devoted to the interpretation of the principles set out in section 4D(a).
3.3 4D(a)(i) Trespasses unduly upon rights or freedoms;
This is the broadest of the principles contained in section 4D(a). Without the benefit of a "declaration of rights and freedoms" proposed by the Legal and Constitutional Committee in its report on human rights protection?, the Committee has been left to its own devices to define what it considers such rights and freedoms to be. Three legally trained committee members, commonsense and practicality have assisted to that end.
3.4
From time to time, a distinction has been drawn between a statutory right and a fundamental right. For instance, in commenting on the Evidence (Unsworn Evidence) BillS which abolished the right to make unsworn statements, the Committee noted the "removal of a statutory right hitherto enjoyed".
3.5 The Three Formulations
The Committee also dealt with the concept of "unduly" under this principle. Clearly, there may be varying views as to what constitutes "unduly" for the purposes of the section. The diversity of views was often the subject of discussion at Committee meetings. Over the year, the Committee developed the practice of using three formulations when dealing with the issue and in doing so has achieved unanimity on every report. There has been no minority report tabled by any member of the Committee, despite the vigorous debate in some instances.
7 Legal and Constitutional Committee, "Recommendation 2" in Report on the Desirability or otherwise of Legislation Defining and Protecting Human Rights, April1987, p 155. 8 Scrutiny of Acts and Regulations Committee, Alert Digest No. L 9 March 1993, p 2.
20 3.6
In order to cover all political opinion, the conclusions expressed by the Committee can take any one of three approaches. The easiest is the conclusion that a provision '~' infringe the terms of reference. The second approach in a hard argued provision is a 'may infringe' conclusion. The third approach where political opinion is divided on the Committee, the wording used is that the provision 'diminishes rights but refers the question of whether the reduction is undue to Parliament to debate.' The effect of this approach is that the Committee summarises the issues which draws Parliament's attention to the provision but forms no view. It should be added that the use of the words "where political opinion is divided" in this context refers to the ordinary differences of opinion and does not mean that any division in the Committee is necessarily a division along party lines.
3.7
It is important to understand the bipartisan nature of the Committee. The Committee has 9 members which means that there is a diversity of viewpoints on any one topic. The use of the "Three Formulations" accommodates that diversity of views and forms part of the bipartisan "practice" of the Committee. The "Three Formulations" approach was adopted from the Senate Standing Committee for the Scrutiny of Bills which has reviewed legislation in a similar manner for at least a decade.
3.8
In the absence of any alternative framework, the Committee is of the view that the consistent use of the three formulations provides the Parliament with some certainty and understanding as to the Committee's deliberations and approach. It also enables the Committee to deal with issues in a fair and systematic manner so as to avoid what could perhaps otherwise be 'ad hoc' results.
3.9
For example, in the Crimes (Amendment) Bill (No.2)9 , the Committee formed a view that a provision 'does unduly trespass' upon rights and freedoms. In other BillslO, for example the Nurses Bill and the Transport Amendment Bill the Committee left the matter to Parliament to decide.
3.10
Like its Federal counterpart, the Committee has unconsciously generated a number of areas which it considers to be sacrosanct in terms of rights and freedoms. The concerns of both committees are very similar. With respect to the Bills, the main areas of concern were:
9 Scrutiny of Acts and Regulations Committee, Alert Digest No. 19.22 November 1993, p 129. 10 Scrutiny of Acts and Regulations Committee, Alert Digest No. 17, 16 November 1993, p 100.
21 (1) Conferring a power of entry into vehicles, premises or land other than by warrant according to the law;
• The Barley Marketing Bill, Alert Digest No. 2, p 7 • The Meat Industry Bilt Alert Digest No. 5, pp 27-28 • Mineral Resources Development (Amendment) Bill, Alert Digest No. 14, pp 29-32
(2) Conferring a power of search of subjects, vehicles or premises other than by a warrant according to the law;
• The Barley Marketing Bill, Alert Digest No. 2, pp 7-8 • The Meat Industry Bill, Alert Digest No. 5, pp 27-28 • Crimes (Amendment) Bill (No.2), Alert Digest No. 19, pp 117-123 • Mineral Resources Development (Amendment) Bill, Alert Digest No. 14, pp 29-32 • Historic Shipwrecks (Amendment) Bill, Alert Digest No. 11, pp 3-4
(3) Permitting retrospective legislation; Open -Ended Commencement Dates;-
• Parliamentary Salaries and Superannuation (Basic Salary) Bill, Alert Digest No. 2, p 7 • Land (Crown Grants and Reserves) Bill, Alert Digest No. 3, pp 16-17 • Gaming Machine Control (General Amendment) Bill, Alert Digest No. 17, p 75 • City of Melbourne Bill, Alert Digest No. 15, p 48 • Casino Control (Further Amendment) Bill, Alert Digest No. 15, p 54 • Mineral Resources Development (Amendment) Bill, Alert Digest No. 14, p 32 • Public Sector Management (Amendment) Bill, Alert Digest No. 14, p 33 • Tattersall Consultations (Further Amendment) Bill, Alert Digest No. 14, pp 41-42 • Credit (Administration) (Amendment) Bill, Alert Digest No. 13, pp 23-24 • Juries (Amendment) Bill, Alert Digest No. 16, p 59
(4) Restricting Freedom of Speech, Freedom of the Press, Freedom of Movement or Freedom of Peaceful Assembly;
• Crimes (Criminal Trials) Bill, Alert Digest No. 7, p 49 • Police Regulation (Discipline) Bill, Alert Digest No. 8, p 58 • Local Government (Miscellaneous Amendments) Bill, Alert Digest No. 20, p 164 • Crimes (Amendment) Bill (No.2), Alert Digest No. 19, p 130 • Historic Shipwrecks (Amendment) Bill, Alert Digest No. 11, pp 3-4
(5) Overturning established legal precepts: e.g. Right to legal representation, proportional sentencing, onus of proof, right to a jury;
• Police Regulation (Discipline} Bill, Alert Digest No. 8, p 58 • Sentencing (Amendment) Bill, Alert Digest No. 8, p 62
22 • Crimes (Amendment) Bill (No.2), Alert Digest No. 19, p 132 • Gaming Machine Control (General Amendment) Bill, Alert Digest No. 17, p 78 • Juries (Amendment) Bill, Alert Digest No. 16, pp 57-59 • Credit (Administration) (Amendment) Bill, Alert Digest No. 13, pp 23-24 • Historic Shipwrecks (Amendment) Bill, Alert Digest No. 11, pp 3-5
(6) Denying rights of appeal or legal redress, Removal of an existing Right;
• Education Acts (Teachers) Bill, Alert Digest No. 7, p 46 • Local Government (General Amendments) Bill, Alert Digest No. 7, p 48 • Planning and Environment (Amendment) Bill, Alert Digest No. 19, p 140 • Education (Amendment) Bill, Alert Digest No. 19, pp 150-151, Alert Digest No. 16, p 68 • Transport (Amendment} Bill, Alert Digest No. 18, p 108 • Equal Opportunity (Amendment} Bill (No.2), Alert Digest No. 17, pp 79-91 • Nurses Bill, Alert Digest No. 17, p 100 • Road Safety (Amendment) Bill, Alert Digest No. 15, p 45 • Credit (Administration) (Amendment) Bill, Alert Digest No. 13, p 25 • Land Titles Validation Bill, Alert Digest No. 12, pp 9-19
(7) Limiting existing access to organisations, directly or otherwise;
• Freedom of Information Bill, Alert Digest No. 9, pp 69-72 • Planning and Environment (Amendment) Bill, Alert Digest No. 19, pp 135-137
(8) Limitation of the jurisdiction of the Supreme Court
• City of Melbourne Bill, Alert Digest No. 15, pp 50-51 • Teaching Service (Amendment) Bill, Alert Digest No. 15, p 52 • Gas and Fuel Corporation (Heatane Gas} Bill, Alert Digest No. 15, p 53 • Public Sector Management (Amendment} Bill, Alert Digest No. 14, p 38 • Land (Further Amendment) Bill, Alert Digest No. 14, p 39 • Rural Finance (VEDC Abolition) Bill, Alert Digest No. 14, p 39-41 • Tattersall Consultations (Further Amendment) Bill, Alert Digest No. 14, pp 41-42 • Land Titles Validation Bill, Alert Digest No. 12, pp 18-19 • State Taxation (Further Amendment) Bill, Alert Digest No. 16, p 64 • Education (Amendment) Bill, Alert Digest No. 16, p 71 • Equal Opportunity (Amendment) Bill (No.2), Alert Digest No. 17, p 86 • Public Sector Superannuation Bill, Alert Digest No. 17, p 96 • Nurses Bill, Alert Digest No. 17, p 97 • Transport (Amendment) Bill, Alert Digest No. 18, pp 108-109 • Health Services (Amendment) Bill, Alert Digest No. 18, p 111 • Crimes (Amendment) Bill (No.2), Alert Digest No. 19, pp 131-132
23 • Planning and Environment (Amendment) Bilt Alert Digest No. 19, p 142 • Building Bill, Alert Digest No. 19, p 145
The list is by no means exhaustive but illustrates the Committee's major areas raised in its short existence.
3.11
The definition of rights or the undue trespass upon rights at times raises sensitive issues. In reporting on a Bill under section 4D(1)(a), the Committee treads a fine line between noting human rights infringements and commenting on the underlying policy. It is the Committee's duty to alert Parliament to provisions of Bills which may offend its statutory criteria. Deliberation as to the merits of the particular policies are left to the Parliament to debate.
3.12
The situation can be rather delicate at times as of necessity there is often a grey area between the two where they intersect. This becomes apparent in Bills which expressly aim to abolish existing rights. For example, in the Children and Young Persons (Further Amendment) Bill, the main thrust of the Bill was the abolition of the right to professional privilege in an attempt to reduce child abuse. The Committee commented on the loss but stated that11 "in areas of policy, such as this, it is not for the Committee to make final determinations. Ultimately, the issues are policy issues." The Committee has used similar wording elsewhere to distance itself very clearly from any policy considerations which may arise.
3.13
Often the Bills specifically remove rights. In the debate over the Evidei).ce (Unsworn Evidence) Bill, The Honourable Haddon Storey made the following comment: "The Committee has pointed out that the Bill makes alteration to existing rights. Of course it does, because that is the very nature of the measure."12
3.14 4D(a)(ii) Makes rights, freedoms or obligations dependent on insufficiently defined administrative powers
The Committee has noted a breach of this principle on only eight clauses in six Bills. This seems somewhat surprising, given the width of the reference. In every case, the Committee advanced the same reason. The Committee was of the view that the Minister's powers of delegation were given to categories of persons which were too broadly defined. For example, in the Board of Studies Bill. Clauses 17 and 24 allowed for the delegation of power by the Board of Studies or the Minister to "any... person". The powers which were delegated were specific but the categories of people to whom the powers were delegated were not restricted. The Committee's
11 Scrutiny of Acts and Regulations committee. Alert Digfst No. 5. 20 April1993, p 25. 12 Haddon Storey (East Yarra) Legislative Council Hansard, Wednesday, 17 March 1993, p 62.
24 concerns were generally met by an appropriate amendment which restricted the group from whence the delegate comes.13
3.15 4D(a)(iii) Makes rights, freedoms or obligations dependent on non reviewable administrative decisions
The Committee commented on four clauses in four Bills under this provision. This is somewhat lower than that of the Committee's Federal counterpart, the Senate Scrutiny of Bills. The reason for this is that the Senate Committee includes what it calls "Ouster Clauses" under this term of reference. An "Ouster Clause" is one which displaces the right of review in the courts. The Scrutiny of Acts and Regulations Committee considers such clauses under its terms of reference in section 4D(b), ie: section 85 of the Constitution Act 1975 discussed in 3.21.
3.16
The only area in which the Committee has commented under this provision is where a Ministerial decision does not provide for review. Allowing the Governor-in Council to nominate the date of council elections in Geelong, was, in the Committee's view, an infringement of this principle and made the right to vote conditional on an administrative decision over which the Parliament had little controi.14
3.17 4D(a)(iv) Inappropriately delegates legislative power
The breach of this principle has been one of the Committee's major concerns since its inception. More specifically, the Committee has noted on several occasions the inclusion of an open-ended proclamation clause in a Bill ie; " This Act comes into operation on a day or days to be proclaimed". It outlines its reasons in its Report on Commencement by Proclamation dated 19 April1993)5
3.18
The Committee's view that such clauses in fact breach two of its references:
• Section 4D(a)(i) because it trespasses on the rights of the citizens of Victoria to adequately ascertain the position of the law; and
• It allows an Act, approved by the Legislature, to be subject to the decisions of the Executive.
13 See Appendix of Bills 14 City of Greater Geelong Bill, Alert Digest No. 5. 20 April1993, p 26. 15 Scrutiny of Acts and Regulations Committee, Report on Commencement by Proclamation. 19 April1993.
25 3.19
The Committee suggested that the situation be remedied by the introduction of a deadline, a forced proclamation (for example after six months) to be used in any proclamation clause to ensure that the entire Act would eventually come into operation.
3.20
Under this provision, the Committee also reported on the discretion given to the Ministers to create definitions and set fees without any input from Parliament. For example, the Committee noted that the Tertiary Education Bill allowed for the Minister to dictate guidelines which effected the law without any review by the Parliament.16 Similar clauses in other legislation have been commented upon which allow a Minister to include investments or groups of people under a statutory definition.
3.21
The Committee has sought in these cases to obtain an undertaking from the Ministers responsible, that there will be some publication of their decision in the Government Gazette or in the annual report from the Department. With regard to the setting of "reasonable fees" the Committee has recommended that Ministers do so under the Subordinate Legislation Act 1962. In general, such proposals have been agreed to by the Ministers.
3.22 4D(a)(v) Insufficiently subjecting the exercise of legislative power to Parliamentary scrutiny
This principle is rarely commented on in isolation. So far, the Committee has only remarked on it in conjunction with principle 4D (a)(iv). As the tablil).g of decisions and the use of subordinate legislation usually redresses the concerns over the inappropriate delegation of power, the two are often remedied together.
3.23
The Committee commented on the Funeral (Pre-paid Money) Bill.17 It stated that its concerns "may be assuaged if the Minister's approval was subject to review under the Subordinate Legislation Act 1962". The Committee has been satisfied with the tabling of decisions in the Government Gazette or in annual reports.
3.24 Section 4D(b) of the Parliamentary Committees Act 1968 Section 85 of the Constitution Act 1975
Section 4D(b) of the Parliamentary Committees Act 1968 is unique to Victoria. The section arises from the rewrite of the Constitution Act 1975, sections of which were the subject of a report to Parliament by the Legal and Constitutional Committee.
16 Scrutiny of Acts and Regulations Committee, Alert Digest No. 7. pp 40-41 17 The Scrutiny of Acts and Regulations Committee, Alert Digest No. 6. pp 33-34
26 3.25 History and Amendments
In March 1990, the Legal and Constitutional Committee reported to the Victorian Parliament upon sections 85 and 18 of the Constitution Act 1975.18
3.26
Practical problems had arisen in relation to the operation of the two sections. It was often unclear which Bills were required by these provisions to be passed by an absolute majority. Inadvertent failure to pass a Bill by an absolute majority, which affected the jurisdiction of the Supreme Court, would render a Bill void. The fact that the entire Bill would fail should an absolute majority not have been obtained when the relevant clauses may have only had minor importance in comparison to the overall content of the Bill also concerned the Committee.
3.27
Proposals to remove these difficulties were suggested in the Report. Appropriate amendments have now been made and are to be found in sections 18(2) and (2A) and 85(5)-(8) of the Constitution Act 1975 and section 4D of the Parliamentary Committees Act 1968.19
18 Thirty-Ninth Report to the Parliament, Report upon the Constitution Act 1975. 19 Section 18: (1) Subject to sub-section (2) the Parliament may be any Act repeal alter or vary all or any of the provisions of this Act and substitute others in lieu thereof.
(2) It shall not be lawful to present to the Governor for Her Majesty's Assent any Bill-
(a) by which an alteration in the constitution of the Parliament, the Council or the Assembly may be made; or (b) by which this section, Part I, Part IIA, Part III, except section 85, or Division 2 of Part V, or any provision substituted for any provisions therein contained may be repealed altered or varied-
unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members of the Council and of the Assembly respectively.
(2A) A provision of a Bill by which section 85 may be repealed, altered or varied is void if the Bill is not passed with the concurrence of an absolute majority of the whole number of the members of the Council and of the Assembly respectively.
(3) Any Bill dealing with any of the matters specified in paragraphs (a) and (b) of sub section (2) which has not been passed with the concurrence of an absolute majority of the whole number of the members of the Council and of the Assembly respectively shall be void.
(4) Sub-section (2) shall not apply to any Bill to-
(a) alter the qualifications of electors and members of the Council or the Assembly;
(b) establish new electoral provinces or districts or vary or alter any such province or district;
27 (c) appoint alter increase or decrease the number of members of the Council or the Assembly to be elected for an electoral province or district;
(d) increase the whole number of members of the Council or the Assembly;
(e) alter and regulate the appointment of returning officers; or
(f) make provision for the issue and return of writs for the election of members to serve in the Council and the Assembly respectively or for the time place and manner of holding such elections.
Section 85:
(1) Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the Superior Court of Victoria with unlimited jurisdiction.
(3) The Court has and may exercise such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986.
(4) This Act does not limit or affect the power of the Parliament to confer additional jurisdiction or powers on the Court.
(5) A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless
(a) the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section; and
(b) the member of the Parliament who introduces the Bill for the Act or, if the provision is inserted in the Act by another Act, the Bill for that' other Act, or a person acting on his or her behalf, makes a statement to the Council or the Assembly, as the case requires, of the reasons for repealing, altering or varying this section; and
(c) the statement is so made
(i) during the member's second reading speech; or (H) after not less than 24 hours' notice is given of the intention to make the statement but before the third reading of the Bill; or (iii) with the leave of the Council or the Assembly, as the case requires, at any time before the third reading of the Bill.
(6) A provision of a Bill which excludes or restricts, or purports to exclude or restrict, judicial review by the Court of a decision of another court, tribunal, body or person is to be taken to repeal, alter or vary this section and to be of no effect unless the requirements of sub-section (5) are satisfied.
(7) A provision of an Act which creates, or purports to create, a summary offence is not to be taken, on that account, to repeal, alter or vary this section.
28 3.28 The 11Express Declaration" Clause
The Legal and Constitutional Committee proposed an amendment to the Constitution Act 1975 which provided that a provision of a Bill shall not be taken as intending to repeal, alter or vary section 85 of the Act unless it expressly declared its intention to do so. The so-called "Express Declaration" clause was subsequently enacted.
3.29
When preparing the Legal and Constitutional Committee Report believed that its recommendations were "undeniably most likely to arise in connection with two specific types of clauses, namely, clauses conferring an exclusive jurisdiction upon a body other than the Supreme Court, and privative clauses."20
3.30
The Legal and Constitutional Committee was also of the view that there were ''a number of other types of clauses whose operation or potential operation might be thought to raise questions in relation to the jurisdiction of the Supreme Court, and which thus might be affected by the insertion of an express declaration clause into the Constitution Act."21
3.31 In paragraph 3.7 of the Report, the Legal and Constitutional Committee wrote;
"Such clauses might or might not, with varying degrees offancifulness, include those abolishing causes of action, abolishing remedies, reducing amounts of damages or penalties, or even clauses having retrospective operation. (Written submission, Attorney-Generals Department). All or none of these types of provisions might be regarded as touching upon the jurisdiction of the Supreme Court, and thus raising the question of the operation of the express declaration clause proposed by the Committee .. (footnote 4)
The view of the Committee is that the entire relationship between such provisions and s.85 of the Constitution is essentially speculative, and therefore is a matter properly left to the Courts. Certainly, the Committee completely rejects the proposition that it should recommend preventative legislative action in the anticipation that, in interpreting s.85 on these and other points, the Supreme Court will adopt as burdensome and inconvenient course as possible."
(8) A provision of an Act that confers jurisdiction on a court, tribunal, body or person which would otherwise be exercisable by the Supreme Court, or which augments any such jurisdiction conferred on a court, tribunal, body or person, does not exclude the jurisdiction of the Supreme Court except as provided in sub-section (5).
20 Legal and Constitutional Committee, Report upon the Constitution Act 1975, pp 22, 23. A privative clause is in general terms, one which precludes or restricts judicial review of the decisions of an inferior tribunal of the Supreme Court. 21 Legal and Constitutional Committee Report upon the Constitution Act 1975, p 24.
29 3.32 The Current Requirements of Section 4D(b) as to the "Express Declaration clause" and Section 85 of the Constitution Act 1975
The Scrutiny of Acts and Regulations Committee is required by section 4D(b) of the Parliamentary Committees Act 1968 to consider any Bill introduced into a House of Parliament and to report to the Parliament-
"(i) as to whether the Bill by express words or otherwise repeals, alters or varies section 85 of the Constitution Act 1975, or raises an issue as to the jurisdiction of the Supreme Court;
(ii) where a Bill repeals, alters or varies section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue; and
(iii) where a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue;"
3.33 Current experience of the use of section 85 of the Constitution Act 1975
Throughout the course of the year, the Committee has considered 130 Bills in total. Of these, the Committee was required by section 4D(b) to report on 29 as affecting the jurisdiction of the Supreme Court. The experience of the Committee in relation to the express declaration provisions is that at least;
• 10 abolished proceedings for compensation arising from actions taken under the Bill;
• 6 contained express declarations to prevent actions against individuals given certain powers under the Bills;
• 1 contained an express declaration preventing action in respect of any land held by the Public Transport Corporation by any person in possession of that land.
• 4 limited judicial review by the Supreme Court of administrative decisions which contained manifest error on the face of the record or an error of law or of applications brought under the Administrative Law Act 1978;
• 1 prohibited administrative or other legal proceedings being brought in the Supreme Court arising out of decisions made by a Local Government Board. or of a Minister's decision made under the Education (Amendment) Bill
• 1 prohibited legal proceedings being brought in the Supreme Court arising out of a Minister's decision made under the Education (Amendment) Bill;
30 • 1 overrode an earlier decision of the Supreme Court;
• 1 restricted judicial review under the Planning and Environment Act 1987 relating to casino property;
• 1 restricted judicial review under the Tattersall Consultations (Further Amendment) Bill relating to the playing of particular games, ie: "match 3";
• 1 prohibited legal proceedings being brought in the Supreme Court in relation to customary title other than in accordance with the Land Titles Validation Bill.
• 1 provided that anything done under The Electricity Act would not constitute a civil wrong. This provision indirectly derogated from the jurisdiction of the Supreme Court.
• 1 restricted judicial review and supervision of procedures by the Supreme Court in the Children's Court under the Crimes (Amendment) Bill (No.2)
• 1 prohibited the Supreme Court from entertaining proceedings for a refund under the State Taxation (Further Amendment) Bill when an application for the refund is not lodged within three years of overpayment.
• 1 prevented the admission of evidence in proceedings brought by the VEDC, after 15 September 1993, which tended to show that it is not entitled to recover certain debts, guarantees or security;
Some of these appear to be matters which confer an exclusive jurisdiction upon a body other than a Supreme Court, whilst others may be described as privative clauses. However, the majority of the clauses either abolish causes of action or remedies.
3.34
Such clauses are just the sort which the Legal and Constitutional Committee was equivocal about making the use of the express declaration provisions necessary as it believed that it could rely upon the generosity of the Supreme Court in such matters. The "Express declaration" clause mechanism was considered desirable with respect to essentially two limitations on the jurisdiction of the Supreme Court, namely, those related to exclusive jurisdiction clauses and privative clauses. It may not have been envisaged that its use would have been as widespread as discussed.
31 3.35 Nature of the Entrenchment of section 85 of the Constitution Act 1975
The entrenchment22 of section 85 of the Constitution Act 1975 comprises:
(a) the express declaration provisions;
(b) the statement from the person responsible for the Bill;
(c) the absolute majority requirement;
(d) the report from the Scrutiny of Acts and Regulations Committee.
3.36
While voidness of the clause23 is the sanction which attaches to the first three elements of the entrenchment mechanism, there is no direct penalty attaching to a negative Report from the Scrutiny of Acts and Regulations Committee24 other than the possible failure of the Bill to obtain an absolute majority at all. The material with which the person responsible for the Bill supplies the House and the Report of the Committee both provide matters to alert and inform members for the debate of the clause.
3.37
Why absence of the one leads to voidness, while the absence of the other attaches no specific or nominated penalty is an unanswered question. The role of the Scrutiny of Acts and Regulations Committee is to be a 'fail safe' mechanism in this context. Its function is to report upon all clauses in Bills and it may be that it will point to a clause previously ignored which does touch on the jurisdiction of the Supreme Court in a way involves section 85 of the Constitution Act 1975. It is also in the position to further explore the appropriateness of the clauses which do specifically alter the jurisdiction of the Supreme Court.
3.38 Adverse Reports
In respect of Section 85, there were four adverse reports where the Committees concerns were not accepted, the Bills were not subsequently amended or the Committee was not in the position to report on the Bills. The Bills were: -
22 'Entrenchment' is the common legal term for the enactment of legislation which renders the repeal or amendment of a particular provision more difficult than would ordinarily be the case. As s.85 of the Constitution cannot, by virtue of s.18 of the same Act, be repealed, altered or varied without absolute majorities being obtained in both Houses of Parliament, it is to this extent entrenched. It should be noted that this absolute majority requirement is a comparatively weak form of entrenchment: far more onerous requirements exist in other contexts. An example of such a requirement is s.128 of the Commonwealth Constitution, which entrenches the whole of that Constitution, so that it may only be altered after the conduct of a successful referendum. Legal and Constitutional Committee, Report upon tbe Constitution Act 1975. p 10. 23 See sections 85(5)(a); 85(5)(b) and 18(2A) of the Constitution Act 1975. 24 See section 4D(b) Parliamentary Committees Act 1968.
32 • the Crimes (Amendment} Bill (No.2} • the Police Regulation (Discipline} Bill • the Electricity Industry Bill • the Education (Amendment} Bill
3.39 Review
The 1990 Report of the Legal and Constitutional Committee suggested that the Office of the Chief Parliamentary Counsel should be charged with the function of advising Ministers and departments as to the possible effects inherent in any Bill upon section 85 of the Constitution Act 1975.
3.40
The Scrutiny of Acts and Regulations Committee has developed a positive working relationship with the Chief Parliamentary Counsel and has canvassed with her its concerns about the overuse of the express declaration provisions and consequent reporting obligations which are incumbent on the Committee.
3.41
The Committee is not so much troubled either by the time involved in reporting on these provisions in Bills which expressly affect section 85 of the Constitution Act 1975 or the fact that its findings carry persuasive weight, as by the threshold question of whether a clause in a Bill merited an express declaration in the first place.
3.42
The Committee is concerned that officers, out of caution, are giving drafting instructions to always incorporate Section 85 clauses. The danger is that Section 85 clauses are becoming the norm rather than the exception. There is therefore, the possibility that the Supreme Court's jurisdiction may be eroded.
3.43
The conclusion of the Legal and Constitutional Committee in its Report was:
'The Committee has found the entrenchment of section 85 of the Constitution Act and the jurisdiction of the Supreme Court to be directed towards the protection of a basic constitutional value, the Rule of Law. Accordingly, it is of the view that the entrenchment should be maintained in face of anything but overwhelming inconvenience.'
3.44
The Scrutiny of Acts and Regulations Committee endorses this conclusion. Nevertheless, the Committee recommends a review of the reasons for the existence and the operation of Section 85 of the Constitution Act 1975 and a review of the effectiveness of the amendments made as a result of the 1990 Report.
33 CHAPTER4
THE SCRUTINY OF REGULATIONS- THE SECOND FUNCTION
4.1
There has been a review Committee which reviews. subordinate legislation in Victoria since 1958. The Scrutiny of Acts and Regulations Committee has effectively taken over the duties of the Legal and Constitutional Committee which operated a subordinate legislation sub-committee from 1982 until 1992. For a complete overview of the scrutiny of regulations, further reference should be made to the "Third Report on Subordinate Legislation - Annual Report concerning Statutory Rules Series 1992" tabled in October 1993.
4.2
The scrutiny of regulations is performed by a sub-committee of five members. This year, the members of the sub-committee were Mr Victor Perton MP, (The Chairman), Or K.A. Coghill MP, The Hon. B.A.E. Skeggs MLC, Mr M.H. Thompson MP and Mr J.W. Thwaites MP.
4.3
The Committee's power of review derives from section 14(1} of the Subordinate Legislation Act 1962 which provides as follows:
14.(1) Where the Scrutiny of Acts and Regulations Committee considers that a statutory rule laid before Parliament under section 5 -
(a) does not appear to be within the powers conferred by the Act under which the statutory rule was made;
(b) without clear and express authority being conferred by the Act under which the statutory rule was made-
(i) has a retrospective effect; (ii) imposes any tax, fee, fine, imprisonment or other penalty; (iii) purports to shift the onus of proof to a person accused of an offence; or (iv) provides for the sub-delegation of powers delegated by the Act;
(c) does not appear to be within the general objectives, intention or principles of the Act under which the statutory rule was made;
(d) makes unusual or unexpected use of the powers conferred by the Act under which the statutory rule was made having regard to the general objectives, intention or principles of that Act;
(e) contains any matter or embodies any principles, which matter or principles should properly be dealt with by an Act and not by subordinate legislation;
34 (j) unduly trespasses on rights and liberties of the person previously by law;
(g) unduly makes rights and liberties of the person dependent upon administrative and not upon judicial decisions;
(h) is inconsistent with principles ofjustice and fairness;
( i) requires explanation as to its form or intention;
(j) has been prepared in contravention of any of the provisions of this Act or of the guidelines prepared under section 11 and the contravention is of a substantial or material nature; or
(k) is likely to result in costs being incurred directly or indirectly in the administration of and compliance with the statutory rule which outweigh the likely benefits sought to be achieved by the statutory rule-
the Scrutiny of Acts and Regulations Committee may report to each House of Parliament as provided in sub-section (2).
In common with other States and Territories, the Committee reviews validity, compliance with guidelines, the need and justification for the regulation, financial and social implications, equity and any decision to use a Premier's certificate. The Premier's certificate is considered the 'fast-track" lane via which approval is obtained for regulations.
4.4
The Committee's report to the Parliament may contain any recommendations which the Committee considers appropriate. This may be a recommendation that the statutory rule be disallowed in whole or in part, or a recommendation that the rule be amended. The Committee may also propose that the operation of the statutory rule be suspended.
4.5
In practice, where it is considered that a defect in a statutory rule can be rectified by amendment, the Committee approaches the Minister privately to seek amendment, rather than reporting to Parliament. The Committee has experienced a high degree of co-operation from Ministers in implementing suggested amendments.
4.6
In the course of examining the 1992-1993 statutory rules, the Subordinate Legislation Subcommittee received undertakings from Ministers and others to amend 30 statutory rules in order to meet its concerns. With respect to a further 62 statutory rules, matter raised by the Subordinate Legislation Subcommittee were resolved by the provision of further explanation and information to the Subcommittee and further action was not taken. Of these queries, 21 related to regulatory impact statements, 10 queried why no regulatory impact statement had been prepared in
35 relation to a particular statutory rule. The remaining 11 queries related to the content of particular regulatory statements.
4.7 Regulatory Impact Statements
The regulatory impact statement is an essential feature of the scrutiny process of regulations. The process was designed to ensure that proper analysis and justification of regulatory proposals occurs and that the public is consulted during the development of significant proposals.
4.8
Pursuant to Section 14(1)(j) of the Subordinate Legislation Act 1962 the Committee must consider whether a statutory rule has been prepared in contravention of any provision of the Act or of the guidelines for the preparation of statutory rules. Guidelines were issued by the Attorney-General under Section 11 of the Act and came into effect on 1 October 1990. The Guidelines are located in Schedule 3 of the Act. Guideline 5 (a) sets out the test which determines when a regulatory statement must be prepared.
"If the proposed statutory rule would impose an appreciable burden, cost or disadvantage on any sector of the public, a regulatory impact statement must be prepared under section 12."
4.9
Schedule 3 sets out the four requirements relating to the preparation and content of regulatory impact statements.
"Provisions applying to Regulatory Impact Statements
A regulatory impact statement shall include the following matters:
(1) A statement of the objectives of the proposed statutory rule.
(2) An identification of the different means by which the objectives of the statutory rule can be achieved.
(3) An assessment of the financial and social costs and benefits of each alternative including resource allocation, administration and compliance costs and where the benefits and costs cannot be assessed solely in financial terms an outline of the social costs and benefits.
(4) A summary of any alternatives to the making of a statutory rule which have been considered and of the reasons why such alternatives are not appropriate."
36 4.10 An Example of a Deficient Regulatory Impact Statement
If a regulatory impact statement is deficient with respect to any of the four criterion listed above, then the Committee may request further information or clarification or in some rare instances require the entire regulatory impact statement to be prepared again. An example of this is SR 207/1992 Port of Melbourne Authority (Transport, Handling and Storage of Dangerous Substances and Oils) Regulations 1992.
4.11
The Port of Melbourne Authority (Transport Handling and Storage of Dangerous Substances and Oils) Regulations 1992 were the subject of a Report to Parliament in March 1993.25 These regulations were comprised of general provisions for the treatment of dangerous substances and the handling of dangerous goods both onshore and offshore, the handling of liquid bulk substances, pipelines, flexible pipes and special provisions for responsibilities and cost recovery.
4.12
The Committee found that the accompanying regulatory impact statement to the Regulations was deficient. The Committee's concern was of a general failure of the regulatory impact statement to comply with the requirements of Schedule 3. It had failed to assess the financial and social costs and benefits of each alternative including resource allocation, administration and compliance costs. Although the Regulations were the subject of a Report, the Committee did not move for disallowance.
4.13
The Minister agreed to prepare a new regulatory impact statement and proposed an amendment to leave in force the existing dangerous goods regulations until the new regulatory impact statement was completed. In accordance with the Minister's undertaking, a new regulatory impact statement was prepared. New Regulations were made and passed, namely; SR 172/1993 Port of Melbourne Authority (Transport, Handling and Storage of Dangerous Substances and Oils) Regulations.
4.14
The routine use of regulatory impact statements serves to promote the underlying purposes of the Subordinate Legislation Act 1962. For this reason, the Committee firmly believes that where a regulatory impact statement is required, it should always be prepared.
4.15 Premier's Certificates
The issue of Premier's Certificate pursuant to section 12(3) of the Subordinate Legislation Act 1962 exempts the statutory rule from the regulatory impact statement
25 Second Report on Subordinate Le!Pslation Port of Melbourne Authority (Transport, Handling and Storage of Dangerous Substances and Oils) Regulations 1992, March 1993.
37 process. It does not exempt the rule from the scrutiny of the Committee, or the provisions of the Subordinate Legislation Act 1962 generally.
4.16
Premier's Certificates are often used where the regulations are made as a matter of urgency, for example, where the current regulations are sunsetting and there is insufficient time to prepare regulations or a regulatory impact statement. In that instance, the new regulations accompanied by a Premier's certificate are usually in a similar form to the existing regulations and have a limited life. This preserves the state of the law until another set of regulations can be drafted and prepared in accordance with the requirements of the Act.
38 CHAPTERS
THE REVIEW OF OTHER LEGISLATION- THE THIRD FUNCTION -THE SUBORDINATE LEGISLATION ACT 1962
5.1 The Subordinate Legislation Act 1962
On 22 December 1992, the Governor in Council referred an Inquiry into the Subordinate Legislation Act 1962 to the Committee. The terms of reference are set out:
"• the means of overcoming anomalies or deficiencies in the legislation which have been identified as a result of practical experience of its operation;
• the feasibility of introducing a code governing the authorised uses of the various forms of legislative instruments and an examination of the use of subordinate legislation not currently subject to the RIS procedures;
• whether the procedures relating to the making of statutory rules, in particular regulatory impact statements, could be rationalised and improved without defeating the objectives underpinning the legislation;
• what approach should be adopted in the context of implementation of national uniformity agreements or adoption of national standards;and
• generally, what amendments ought to be made to the legislation and what changes in administrative practice are desirable."
5.2
By way of background, the predecessor to the Committee, the Legal and Constitutional Committee commenced an Inquiry into the Subordinate Legislation Act 1962 in the same terms as the present Terms of inquiry. The work of the Legal and Constitutional Committee was curtailed by the dissolution of the Parliament on 14 August 1992.
5.3
By public notice in local newspapers in the past Inquiry, the Legal and Constitutional Committee invited persons and organisations to express their views on any matter relating to the Terms of Reference. That Committee also invited correspondence from office holders and organisations recognised as having a special interest or expertise in the Act's process. Both written and oral submissions were made to that Committee. The Legal and Constitutional Committee received 44 submissions and held 3 public hearings in Melbourne during which it heard evidence from 8 witnesses.
39 5.4
In March 1993, the Scrutiny of Acts and Regulations Committee issued a discussion paper containing a Working Draft Bill. Further oral and written submissions were made to the Committee. The Committee received 25 submissions, a few of which had been submitted to the earlier inquiry. The Committee held one further public meeting in Melbourne during which it heard evidence from 5 witnesses including representatives of industry groups.
5.5
In November 1993, the final report was tabled by the Committee.26 The Report included the final version of the draft Subordinate Legislation Act.
26 Scrutiny of Acts and Regulations Committee, Report upon an Inquicy into the Qperation of the Subordinate Legislation Act 1962, November 1993.
40 CHAPTER6
THE REVIEW OF OTHER LEGISLATION -THE THIRD FUNCTION THE EQUAL OPPORTUNITY ACT 1984
6.1
In accordance with its Terms of Reference, the Committee may pursuant to section 4D(d) review "any Act where required to do so by or under this Act, in accordance with Terms of Reference under which the Act is referred to the Committee." The Committee must wait until an Act is referred to it by the Government before it can review it. The present practice is for the Attorney-General to refer a particular piece of legislation to the Governor-in-Council for his approval. The legislation is then referred to the Committee by the Governor-in-Council for review.
6.2 The Equal Opportunity Act 1984
On 22 December 1992 the Governor-in Council referred the Equal Opportunity Act 1984 to the Committee for review. The Terms of Reference are set out.
"1. To enquire into and report to Parliament into the effectiveness and efficiency of the Equal Opportunity Act 1984 in: eliminating discrimination; and providing redress for victims.
2. In particular, the Committee should review-
• the structures established by the Act for eliminating discrimination and providing redress, ie. the agencies of the Commissioner for Equal Opportunity and the Equal Opportunity Board, the division of responsibilities, the agencies relationship to the Minister and Parliament;
• the functions, powers and procedures of the Commissioner for Equal Opportunity;
• the constitution, functions, powers and procedures of the Equal Opportunity Board and whether it is preferable to have a specialist tribunal or to transfer the jurisdiction of the Board to a division of the County Court;
• whether compliance with the Equal Opportunity Act 1984 imposes significant costs upon employers, service Providers, and others;
• the definition of "discrimination" in the light of the Supreme Court decision in Arumugam;
• whether there are financial and other implications arising from adding "age" as a ground ofdiscrimination;
• whether additional grounds of discrimination should be prohibited;whether there should be any amendments to the areas of activity in which discrimination is prohibited, or to the exemptions.
41 3. The Committee should indicate whether any of its recommendations have significant resource implications for any affected party."
6.3
The Committee conducted its investigation through a Sub-committee comprised of the Chairman, Victor Perton, the Deputy Chairman, the Honourable Bruce Skeggs, Dr Ken Coghill, Mr John Thwaites and the Honourable Louise Asher. The members worked well and cooperatively.
6.4
Both written and oral submissions were made to the Committee. The Committee held hearings on 3, 7, 8 and 9 June 1993, 4, 17 and 31 August 1993 and 13 October 1993 respectively and heard submissions from 34 witnesses. No less than 119 written submissions from all sections of the community were considered by the Committee.
6.5
On 5 October 1993, the Chairman received a request from the Attorney-General for the Committee to make an Interim Report on the procedural aspects of the Act. On October, the Committee tabled its Interim Report27 which dealt only with practical issues relating to the procedures of the Commissioner and proceedings at the Equal Opportunity Board.
• The Equal Opportunity (Amendment) Bill (No. 2) 1993 was introduced into Parliament one week after the Interim Report was tabled. The Attorney -General wrote to the Committee on 5 November 1993 making "it clear" that the Bill "represents only a limited and interim initiative on the part of the Government. After the receipt of the Committee's final report and recommendations, the Government intends to undertake a wholesale revision of the Equal Opportunity Act 1984. At that time, the Government will also consider implementation of the outstanding recommendations from the Committee's report."
6.6
The Final Report was tabled in November 1993.28 Recommendations were made in relation to age discrimination, sexuality, pregnancy, family responsibilities, personal association and mistaken belief. The Chairman noted in the Introduction to the Final Report that "the decisions taken by the Committee in preparing this Report and its recommendations have been made with almost unanimous approval of Members. That unanimity is a tribute to their hard work and tolerance."
27 Scrutiny of Acts and Regulations Committee, Review of the Victorian EQual Qrwortunity Act ~Interim Report, October 1993. 28 Scrutiny of Acts and Regulations Committee, Review of the Victorian E!Jual QrwortunitJ{ Act 1984, Final Report, November 1993.
42 CHAPTER7
THE REPORTED BILLS
7.1
The following is an alphabetical summary of the Bills considered and reported on by the Committee. An accompanying Table of Bills is located in the appendix of the Report.
7.2
Accident Compensation (WorkCover Insurance)
This Bill imposes liability to pay compensation under the Accident Compensation Act on employers, and other matters.
The Committee was of the view that the extended classes of persons able to insure or self insure should have normal administrative review entitlements. It was also of the view that the provisions may trespass unduly upon rights or freedoms and that existing rights to medical confidentiality may be reduced. The Committee acknowledged the Minister's undertaking that this "will be made clear to employers".
7.3
Audit Bill
This Bill provides for the Office of Auditor-General, the Office of a Deputy Auditor-General and for annual audit statements from each authority.
The Committee made no further comment.
7.4
Barley Marketing Bill
The Bill continues, with changes, the joint scheme with South Australia for marketing barley.
The Committee drew an unlimited delegation power in clause 7 to the attention of Parliament under section 4D(a)(ii). It held that the power given to authorised officers to enter and search premises without a warrant was a breach of section 4D(a)(i}, as was the power to stop and detain a car. The Minister introduced the amendments to the offending clauses 7 and 74(1).
43 7.5
Board of Studies
The Bill establishes a Board of Studies to co-ordinate curriculum matters for all the years of schooling, from the preparatory grade to year 12.
The Committee was of the view that the powers of delegation was too wide and drew it to the attention of Parliament.
7.6
Building Bill
The Bill provides for the regulation of building and building standards.
The Committee noted that the section 85 clause was appropriate and desirable in all the circumstances.
7.7
Business Franchise (Petroleum Products) (Amendment) Bill
This Bill amends the Business Franchise (Petroleum Products) Act 1979 by increasing the franchise fee for motor spirit and diesel fuel from 1 August 1993. It also established the "Better Roads Victoria Trust account" in the Public Account.
The Committee held the new section 13 allowing Treasurer to determine the expenditure of amounts standing to the credit of the Better Roads Victoria Trust Account for the construction and maintenance of roads in Victoria contravened section 4D(a)(iv). The Committee wrote to the Treasurer to confirm that decisions taken by him under the sections referred to are reported to the Parliament for example, by inclusion in Annual Reports of the Roads Corporation.
7.8
Caravan Parks and Movable Dwellings (Amendment) Bill
This Bill replaces the original licensing provisions established under the Principal Act. Licensing is to be replaced by a simplified registration scheme supervised by local councils.
The Committee reported an open-ended commencement clause and an inappropriate delegation of power under section 4D(a)(iv).
44 7.9
Casino Control (Amendment) Bill
This Bill facilitates the establishment of the Melbourne Casino.
The Committee praised the forced commencement provision and held the alteration to section 85 of the Constitution Act was appropriate.
7.10
Casino Control (Further Amendment) Bill
This Bill makes a number of amendments to the Casino Control Act 1991 and the Gaming Machine Control Act 1991 in relation to casinos.
The Committee noted the use of the government gazette and the retrospective effect of clause 6. It noted the bipartisan support for the Melbourne Casino and made no further comment.
7.11
Children and Young Persons (Further Amendment) Bill
This Bill introduces mandatory reporting by selected professionals of children in need of protection from sexual abuse or physical injuries. Secondly, it allows Departmental officers to appear on behalf of the Department Secretary before the Family Division of the Children's Court.
The Committee was concerned that the staged introduction of the Bill contravened section 4D(a)(iii) and that there was no specified date by which all the Orders in Council may be made with respect to persons or groups in new section 64(1C). The Committee suggested the Bill be amended to give specific date.
The Minister gave a Parliamentary explanation as to the implementation problems of a final date.
7.12
City of Greater Geelong Bill
This Bill establishes the City of Greater Geelong by restructuring councils in the Geelong region.
The Committee believes a fixed date should be specified by which election of Councillors must be held, otherwise section 4D(a)(iii) and (1) may be contravened. Clarification was sought from Minister as to several concerns.
45 7.13
City of Melbourne Bill
This Bill creates a new municipality and alters municipal boundaries.
The Committee was concerned at the breadth and legal status of the Orders-in Council and wrote to the Minister. The Committee was satisfied with the Minister's response by way of letter and made no further comment.
The Committee also sought justification as to the section 85 clause. The Minister made new section 85 statement and a House Amendment. The Committee made no further comment.
7.14
Commercial Arbitration (Amendment) Bill
This Bill amends the Principal Act in order to promote uniformity of Australian arbitration law.
The Committee was of the view that there was appropriate alteration of powers under section 85, but that the open-ended commencement provision may breach section 4D(a)(i) or 4D(a)(iv). The Attorney-General made an amendment which dealt with the Committee's concern about open-ended commencement.
7.15
Corrections (Management) Bill
This Bill generally allows correctional services to be contracted out with certain mandatory provisions and minimum standards to apply concerning the provision of services.
The Committee was concerned that random blood and urine testing of staff and prison visitors for concentrations of alcohol or drugs above prescribed limited in clause 5 may contravene section 4D(a)(iv) and does contravene 4D(a)(i).
The Minister made an amendment to the Bill which removed references to random alcohol testing.
7.16
Credit (Administration) (Amendment) Bill
This Bill replaces the licensing system for providers of credit with what is commonly described as a "negative licensing" system.
46 The Committee was principally concerned by the retrospective reverse of a burden of proof ie : clause 20. Clause 20 retrospectively deems certain credit providers to be registered and thus relieves organisations retrospectively from the burden of proving themselves to be of good character and capable of carrying on business fairly. The Committee wrote to the Attorney-General who responded by letter.
The Committee noted the Attorney's response and that it was an unusual use of procedural retrospectivity and referred the matter to Parliament for debate.
7.17
Crimes (Amendment) Bill (No. 2)
The Bill replaces the Crimes (Amendment) Bill No.l which was withdrawn earlier in the session. The Bill increases police powers.
The Committee's concerns were in relation to:
requirement to give name and address
fingerprinting of children/ adults
possible admissibility of fingerprint evidence obtained other than in accordance with the Act
obtaining forensic evidence
a child who is the subject of a court order may not call or cross-examine any witnesses and has a limited right of address before the Court
the definition of "Public Place".
Those matters were referred to Parliament for debate.
Other concerns included the use of video cameras, the Court's giving of reasons, destruction of fingerprints, (when and by whom) drafting matters. The Committee raised these with the Attorney-General and appropriate amendments were made. The Committee made no further comment.
The Committee also noted that in respect of the section 85, clause, the explanation was not sufficient and referred the matter to Parliament for debate. The other section 85 clause was considered appropriate in all the circumstances.
47 7.18
Crimes (Criminal Trials) Bill
This Bill addresses the decision of the Australian High Court in Dietrich v The Queen and other matters.
The Committee reported that clause 27 may disentitle indigent applicants for Legal Aid which may contravene section 4D(a)(ii). However the Committee finally concluded that this was a policy matter relating to the extent of funding of the Legal Aid Commission and made no further comment.
7.19
Crimes (HIV) Bill
This Bill creates a new offence of intentionally causing a person to be infected by HIV. No recommendation was made and no further comment was made.
7.20
Docklands Authority (Amendment) Bill
This Bill extends the Docklands Authority land and functions. It was reported that the Committee did not believe there had been an undue trespass upon rights or freedoms. No further comment was made.
7.21
Education Acts (Teachers) Bill
This Bill creates a Standards Council of the Teaching Profession, the Merit Protection Board and abolishes the Teachers Registration Board and the Teaching Service Disciplinary Board.
It was recommended that the variation to section 85 was appropriate. It was noted that clauses which provide that the members of the Standard Council and the Merit Protection Board's remuneration and allowances be fixed from time to time by the Minister contravene section 4D(a)(iv). It was also considered that the section which permits a Merit Protection Board to refuse to hear an applicant or appellant may contravene section 4D(a)(i).
7.22
Education (Amendment) Bill
This Bill amended the Education Act 1958 in a number of areas.
48 The Committee wrote to the Minister in respect of the guidelines, the number and nature of legal proceedings, appeal rights from a decision, review of the Minister's decision and Ministerial orders.
The Minister responded in great detail answering many of the Committee's concerns. Those concerns which were not fully met were referred to Parliament for debate. The Committee also reaffirmed its view that any Orders made should be reviewable under the Subordinate Legislation Act 1962.
The Committee also noted that the section 85 clause was appropriate in all the circumstances.
In respect of Ministerial Orders, the Minister responded:
"I appreciate the Committee's view that the Ministerial Order on student discipline should undergo a form of scrutiny".
The Minister made an appropriate House Amendment.
7.23
Electricity Industry Bill
This Bill relates to the restructuring of the electricity supply industry.
The Committee wrote to the Minister requesting a further explanation as to the section 85 clause. The Committee also noted that the extensive powers of delegation may make rights dependent upon insufficiently defined administrative powers. The Minister responded by way of letter.
7.24
Equal Opportunity (Amendment) Bill (No. 2)
This Bill abolishes the position of Commissioner for Equal Opportunity and establishes an Equal Opportunity Commission.
The Committee was concerned as to the awarding of costs against an unsuccessful complainant. The Committee wrote to the Attorney-General who subsequently made a House Amendment on Costs.
The Committee was also of the view that there should avenues for a complainant to initiate expedited hearings. The Committee noted that the section 85 clause was appropriate in all the circumstances.
The Committee notes that the Attorney-General intends to undertake a wholesale revision of the Act.
49 7.25
Estate Agents (Amendment) Bill
This Bill alleviates specific hardship suffered by genuine family companies relating to the former requirement that prohibited the grant of a corporate licence to a company in which an unlicensed close relative of a sub-agent in the corporations' business was a director. The Bill also changes the definition of "authorised investments.
The interpretation of "authorised investment" as included those "approved for the time being by the Treasurer" may be an inappropriate delegation of legislative power under section 4D(a)(iv). The Committees concerns would be met if the investments approved by the Treasurer were expressly subject to the Parliament's scrutiny by tabling.
7.26
Ethnic Affairs Commission Bill
This Bill replaces the Ethnic Affairs Commission Act 1982.
The Committee noted that clause 2 is open-ended commencement provisiOn and there is no explanation given in the Explanatory Memorandum or Second Reading Notes.
7.27
Evidence (Unsworn Evidence) Bill
Under section 4D(a)(i) a person's existing statutory right to make an unsworn statement or to give unsworn evidence is abolished. The Minister gave an undertaking to monitor the effects on minority groups.
7.28
Financial Management Bill
This Bill improves the financial administration of the public sector, provides for annual reporting to Parliament and makes better provision for the accountability of the public sector.
The Committee explained the provisions and made no further comment.
50 7.29
Freedom of Information Bill
This Bill creates a right of access to some local government documents, introduces an application fee, removes $100 ceiling and permits agencies to refuse repeated or voluminous requests.
The Committee referred the reduction in rights to Parliament caused by the abolition of $100 ceiling on charges and the introduction of charges for Members of State Parliament and persons who intend to use a document for the public interest.
7.30
Funerals (Pre·paid Money) Bill
The Bill's purpose is to protect money placed by consumers in pre·paid Funeral Funds and to prescribe minimum contract terms for pre-paid funerals.
The Committee was concerned under section 4D(a)(iv) that the Minister may approve additional modes of investment. The Committee stated its concerns would be met if the investments approved by the Minister were expressly subject to tabling in Parliament.
7.31
Gaming Machine Control (General Amendment) Bill
This Bill amends the Gaming Machine Control Act 1991 and the Racing Act 1958.
The Committee noted that proposed amendments were appropriate in the circumstances. The Committee also noted that proposed clause 20 reverses the onus of proof but made no further comment.
7.32
Gas and Fuel Corporation (Heatane Gas) Bill
This Bill created new statutory easements required to transfer pipelines to Elgas.
The Committee noted that the section 85 clause was appropriate in all the circumstances.
51 7.33
Health and Community Services (Further Amendment) Bill
This Bill amends a number of Acts in the Health and Community Services portfolio to resolve legal or administrative problems which have arisen.
The Committee's concerns were in relation to the imposition of new fees and the change in conditions for staff in the Health and Community Services area. The Committee noted the Minister's explanation and referred the matter to Parliament to debate.
The Committee also noted that the section 85 clause was appropriate in all the circumstances.
7.34
Health and Community Services (General Amendment) Bill
This Bill makes miscellaneous amendments to the Health Act 1958, the Health Services Act 1986, the Drugs, Poisons and Controlled Substances Act 1981 and 10 other Acts.
The Committee reported an appropriate variation made to section 85 Constitution Act 1975. The Committee looked at clause 27 which provides that a community treatment order may specify where a patient must live, if this is necessary for the patient's treatment. The Committee reported this seemed to be in the patient's overall interest and may not trespass under section 4D(a)(i). Under clause 29 the maximum period by which <1n initial review under the Mental Health Act 1986 must be made is extended by 2 weeks. The Committee sought a Ministerial explanation and in the meantime it noted that the clause may trespass unduly upon rights or freedoms (section 4D(a)(i)). A Ministerial explanation was received and published.
7.35
Health Services (Amendment) Bill
This Bill makes provision for the appointment of case mix auditors.
The Committee noted that the section 85 clause was appropriate in all the circumstances.
52 7.36
Historic Shipwrecks (Amendment) Bill
The Bill amends the Historic Shipwrecks Act 1981 by introducing infringement notices, increasing the capacity of inspectors to enforce the Act and bringing the Act into line with the Commonwealth.
The Committee's concern was as to the increased enforcement powers of inspectors to search any parcel or bag and to require the name and address of an individual. The Committee wrote to the Minister. The Minister responded by way of letter which adequately addressed the Committee's concerns.
7.37
Institute of Education Administration (Repeal) Bill
This Bill repeals the 1980 Act, removes statutory government involvement in the Institute's residential conference and study centre and vests the land in the Minister. There was concern by the Committee as to the continuation of employment for staff under section 4D(a)(i). It was held as not undue trespass on rights and freedoms as on-going employment of some sort was guaranteed by the Bill for former public servants and teachers.
7.38
Juries (Amendment) Bill
This Bill amends the Juries Act 1967 by introducing majority verdicts in certain criminal prosecutions, reducing the number of peremptory challenges and changing preselection procedures and compensation arrangements.
The Committee was of the view that the introduction of a majority verdict may unduly trespass on rights and freedoms and wrote to the Attorney-General requesting her response.
7.39
Land (Crown Grants and Reserves) Bill
This Bill clarifies the circumstances in which reserved Crown land or reserved land the subject of a Crown Grant, may be sold, leased or licensed. The Committee reported that the express amendment of section 85 of the Constitution Act 1975 was appropriate. The Committee accepted the Minister's justification for the retrospective effect of the Bill as necessary to protect the Crown's interest in land.
53 7.40
Land (Further Amendment) BiB
This Bill amends the Land Act 1958 to permit amongst other matters, the leasing and sale in strata of interests in Crown Land.
The Committee noted that the section 85 clause was appropriate in all the circumstances.
7.41
Land (Miscellaneous Matters) Bill
This Bill revokes Orders in Council pertaining to a miscellaneous selections of permanent reservations of land, and permits the surrender of certain other lands to the Crown. The Committee reported that the variation of section 85 of the Constitution Act 1975 was appropriate.
7.42
Land Titles Validation Bill
This Bill is the "Mabo" Bill and confirms grants of titles to land including rights of occupation or use. It also provided for a mechanism for the payment of monetary compensation.
The Committee made a minor comment with respect to consistency in drafting practices. The Committee had concerns as to the effect of the word "customary title", the fifteen year time limit on notice of claims, the Racial Discrimination Act 1975 and compensation. The Committee wrote to the Premier.· The Premier responded satisfying some of the Committee's concerns. The outstanding issues of the Racial Discrimination Act, customary title and compensation were referred to Parliament for debate because of their complexity.
7.43
Legal Profession Practice (Guarantee Fund) Bill
This Bill inserted a new definition of "authorised investment" and a new arrangement concerning the allocation of interest from the Income Suspense Account of the Solicitors Guarantee Fund. The Committee noted the Attorney General's proposed further amendment to deal with "authorised investments" by the Treasurer and viewed the limiting of solicitors' trust accounts to "authorised banks" as a possible undue trespass in the terms of section 4D(a)(i). The Attorney-General subsequently made the appropriate amendment.
54 7.44
Local Government (General Amendment) Bill
This Bill makes miscellaneous amendments to the 1989 Principal Act. The alteration to section 85 of the Constitution Act 1975 was seen as appropriate. The Committee reported that the powers granted to the Governor in Council were inappropriate under section 4D(a)(iv) as they derogated from the powers of Parliament.
7.45
Local Government (Miscellaneous Amendments) Bill
This Bill amends and clarifies road provisions and amends provisions relating to the employment conditions of designated officers.
The Committee's concerns related to roads provisions and clauses which provide that a Minister may exempt a Council from complying with the Senior Officer's contracts provision. The Committee wrote to the Minister who responded by way of a letter. The Committee made no further comment.
The Committee noted that the power to request the name and address of a person may unduly trespass on rights and freedoms.
7.46
Marine (Amendment) Bill
This Bill makes the blood alcohol provisions in the Marine Act 1988 similar to those in the Road Safety Act 1968; infringement notices may be issued for blood alcohol offences. The Committee reported that the variation of section 85 of the Constitution Act 1975 for preventing Supreme Court proceedings against doctors taking blood sample from persons over 15 years old after a boating accident, was appropriate.
7.47
Meat Industry Bill
This Bill establishes the Victorian Meat Authority.
The Committee recommended that clauses 72 and 73 relating to powers of inspectors may be reportable under section 4D(a)(ii) and that paragraphs (e) and (f) of clause 72(2) constituted an undue trespass upon rights under section 4D(a)(i).
55 7.48
Melbourne Wholesale Fruit and Vegetable Market Trust (Amendment) Bill
This Bill establishes the Melbourne Market Authority.
The Committee made no further comment.
7.49
Mineral Resources Development (Amendment) Bill
This Bill amended the Mineral Resources Development Act 1990. The Committee was concerned that overriding planning restrictions in relation to mining and exploration could substantially reduce right of potentially affected persons. The Committee wrote to the Minister who responded by way of letter which was noted in the Alert Digest. The Committee referred the matter to Parliament to debate whether the reduction in rights amounted to an undue trespass.
7.50
Murray Darling Basin Bill
This Bill substitutes a single agreement between the Commonwealth, New South Wales, Victoria and South Australia about the management of the land, water and environmental resources of the Murray-Darling Basin for 3 earlier agreements. The Committee reported that the Bill varied section 85 of the Constitution Act 1975 and noted that the Minister had not made a statement in the Parliament giving reasons. The Minister subsequently made the appropriate Section 85 statement.
7.51
Mutual Recognition (Victoria) No.t Bill
This Bill enables the enactment of uniform legislation concerning recognition of Australian regulatory standards for goods and occupations. The open-ended commencement clause was noted but the Committee stated that it was aware of the nature of the Bill as part of a federal scheme.
7.52
Nurses Bill
This Bill establishes a new Nurses Board responsible for the registration of nurses.
56 The Committee noted the concerns of Ms Belinda Morieson, Secretary of the Victorian Branch of the Australian Nursing Federation as to the abolition of the Victorian Nursing Council, the definition of "unprofessional conduct" and the conduct of hearings. The Committee wrote to the Minister who responded in writing. In respect of these matters, the Committee referred the Bill to Parliament for debate as to whether the reduction of rights was undue.
The Committee also noted that the section 85 clause was appropriate in all the circumstances.
7.53
Parliamentary Salaries and Superannuation (Basic Salary) Bill
This Bill breaks the salary link between Members of the Victorian Parliament and Members of the House of Representatives from 14 December 1992 to 31 December 1993.
The Committee noted the retrospective operation of the Bill under section 4D(a)(i) and made no further comment.
7.54
Pay-roll Tax (Amendment) Bill
This Bill replaces those provisions which impose tax on benefits provided by employers with provisions based on those in the Commonwealth Fringe Benefits Tax Assessment Act 1986.
Clause 6 inserted a new section which allowed for amending the taxable value of a fringe benefit automatically whenever the Commonwealth Fringe Benefits Tax Assessment Act is amended.
The Committee did not believe that this inappropriately delegated legislative power under section 4D(a)(iv} because the Federal Parliament itself and the Senate Scrutiny of Bills Committee would detect any impropriety.
7.55
Planning and Environment (Amendment) Bill
This Bill improves the administration of planning schemes.
The Committee's concerns were in relation to planning scheme exemptions, the exemptions from giving notice and the limited right of appeal. The Committee was concerned that there was a reduction in rights and referred the matter to Parliament for debate as to whether the reduction is undue.
57 7.56
Police Regulation Bill
This Bill gives the Chief Commissioner power to dismiss, reduce rank or transfer a member of Victoria Police and states that the Review Commission's decision was not binding on the Commissioner. The Committee held that this might constitute an undue trespass under section 4D(a)(i). The Committee stated it was not in a position to report that the proposed variation to section 85 of the Constitution Act 1975 is in all the circumstances appropriate and desirable.
7.57
Public Sector Management (Amendment) Bill
This Bill amends the Public Sector Management Act 1992 to improve the administration of the Act.
The Committee sought an explanation from the Premier as to a number of clauses which involved retrospectivity, unpublished advertisements, the direction that future Acts and legal documents are to be subject to Parts 4 and 9, the increase in penalties, the availability of guidelines and the inappropriate delegation of legislation power. The Premier responded by way of letter which met all the Committee's concerns.
The only recommendation that the Committee made was with respect to the guidelines, namely; "that section 106(2)(a) of the Act is available to make regulations which implement the Public Service Commissioner's guidelines. The Committee recommends that due consideration be given to using this power, thereby subjecting aspects of the operation of the guidelines to Parliamentary scrutiny by virtue of the Subordinate Legislation Act 1962".
The Committee also noted that the section 85 clause was appropriate in all the circumstances. 7.58
Public Sector Superannuation (Administration) Bill
This Bill establishes the Victorian Superannuation Board and Fund and improves the administration of public sector superannuation schemes.
The Committee noted that some provisions represented a reduction in rights, the explanation set out in the Second Reading Notes and referred the matter to Parliament for debate.
The Committee also noted that the section 85 clause was appropriate in all the circumstances.
58 7.59
Racing (Amendment) Bill
This Bill sets a 5 year sunset date to apply to al13 Tabaret sites before they transfer under the Gaming Machine Control Act 1991 and changed the membership of the Totalizator Agency Board. The Committee noted that the new formation of the TAB may trespass unduly on rights or freedoms (section 4D(a)(ii) because it removes from the 4 racing bodies an existing right to direct representation on the TAB, the major source of revenue of the bodies.
7.60
Road Safety (Amendment) Bill
This Bill introduces three major changes to the law about drink driving and makes various other consequential amendments.
The Committee was concerned about the removal of the right of a person to demand that a second breath sample be taken and analysed and wrote to the Minister. The Minister's response satisfied the Committee.
The Committee also noted that the section 85 clause was appropriate in all the circumstances.
7.61
Rural Finance (VEDC Abolition) Bill
This Bill abolishes the VEDC and provides for the Rural Finance Corporation of Victoria to become the successor in law to the VEDC.
The Committee was concerned that the administrative power of the Treasurer was insufficiently defined and sought an explanation. The Treasurer responded by way of letter which satisfied the Committee and no further comment was made. The Committee also noted that the section 85 clause was appropriate in all the circumstances.
7.62
Sentencing (Amendment) Bill
This Bill increases penalties for serious sexual offenders and serious violent offenders, empowers courts to impose indefinite sentences on persons convicted of serious offences, and creates new offences.
The Committee recommended inviting the Attorney~General to give an undertaking to monitor the operation of the Bill particularly in regard to indefinite sentencing. The Committee noted the written undertaking given on
59 12 May 1993. The Attorney-General subsequently amended cumulative sentencing provisions and gave appropriate undertakings in relation to indefinite sentencing.
7.63
State Owned Enterprises (Amendment) Bill
This Bill extends the tax equivalent system and amends the levy on borrowings and enables the functions of State Business Corporations to be amended by Order in Council.
The Committee was concerned that there was an inappropriate delegation of legislative power and wrote to the Treasurer requesting an explanation. The Committee received a detailed response by way of letter from the Treasurer which satisfied its concerns.
The Committee did however note that it was "of the opinion that, in order to give effect to the last mentioned paragraph of the Treasurer's letter, the Orders should be deemed to be statutory disallowable instruments".
The Committee made no further comment.
7.64
State Taxation (Further Amendment) Bill
This Bill amended the refund provisions of various Acts.
The Committee noted that the section 85 clause was appropriate in all the circumstances.
7.65
Subordinate Legislation (Amendment) Bill
This Bill was a privileges Bill and the Committee made no comment.
7.66
Tattersall Consultations (Further Amendment) Bill
This Bill exempts Tattersall profits from certain overseas operations from a requirement to pay duty to the Victorian Government and confirmed the meaning of "Match 3".
The Committee noted that the retrospective element of the Bill was required in the public interest and made no further comment.
60 The Committee also noted that the section 85 clause was appropriate in all the circumstances.
7.67
Teaching Service (Amendment) Bill
This Bill amends the Teaching Service Act 1981 to create a distinct class of teacher : the Principal Class and abolishes employment registers.
The Committee noted that the section 85 clause was appropriate in all circumstances.
7.68
Tertiary Education Bill
This Bill repeals the Post-Secondary Education Act 1978 and makes new arrangements for the co-ordination of higher education in Victoria.
The Committee drew the Minister's attention to guidelines and a power to the Minister to charge a "reasonable" fee for applications under section 4D(a)(iv). The Minister made changes to the Bill in the Legislative Assembly on 6 May 1993 so that guidelines will be published in the Government Gazette and fees will be set by regulations.
7.69
Transport (Amendment) Bill
This Bill overhauls the transport system and amends the Road Safety Act 1986.
The Committee noted in respect of a number of areas, ie: driving instructors' certificates, request for name and address, tow truck certificates and commercial goods vehicles there may be a reduction in rights and referred the matter to Parliament for debate.
The Committee also noted that the section 85 clause was appropriate in all the circumstances.
7.70
Victorian Plantations Corporation Bill
This Bill confers additional powers and functions on this Corporation established by Order in Council under the State Owned Enterprises Act 1992. Clause 33 declares its intention to alter section 85 of the Constitution Act 1975 to prevent the Supreme Court from awarding compensation in certain circumstances. The Committee reported the alteration as appropriate.
61 7.71
Vocational Education and Training (College Employment) Bill
This Bill abolished the currently operating central employment mechanism and replaced it with college-based employment. The Committee reported that the transitional provisions allowed the Governor in Council to make provision with respect to processes and proceedings which commenced before clause 23 came into operation.
As these matters concern selection, appeal and disciplinary processes under the Post-Secondary Education Act 1978 the Committee reported that the matters may fall under section 4D(a)(i) or section 4D(a)(iv). The Committee also noted the breadth of power given to the Secretary of the Department of Education as possibly contravening sub-paragraph 4D(a)(iii). The reported clauses also come under section 4D(a)(v).
The Minister proposed that in relation to clause 23, a proviSIOn might be included to provide that the Orders in Council be tabled in both Houses of Parliament and be disallowable by either House in the same way as statutory rules and subsequently made the appropriate amendments.
Committee Room 28 March 1994
62 APPENDIX1
I TABLE OF BILLS I
Explanation of Numbers
1. The provision~ unduly trespass on rights and freedoms. 2. The provision~ unduly trespass on rights and freedoms. 3. The provision diminishes~ and freedoms and the matter is referred to Parliament for debate. 4. The provision does not unduly trespass on rights and freedoms. 5. No comment or no further comment. 6. Other recommendations. 7. Unable to comment -waiting on advice.
Total Bills Considered in Alert Digests 1 • 20: = 130 Number reported on: = 71 ~ % reported on: = 54
Bill Reported Section4D Section4D Recommendation &: Comment Amendment No. Newspaper Coverage of Name of Bill (b) (a) Made Made or Proposed Amendment Committee and Bill Section SS Amendment Made Newspaper and Date Accident 4D(a)(i) 2 Ministerial Compensation undertaken given. (WorkCover Insurance)
Audit 5 No amendment necessary
I Barley Marketing 4D(a)(i) 1 Amendment made 4D(a)(ii) 3 to Clauses 7 and 74(1) Board of Studies 4D(a)(ii) 2
The wide power of delegation drawn to the attention of Parliament.
I Building 40 (b) (i) Appropriate in all the circumstances No amendment and (ii) necessary
Business Franchise 40 (a) (iv) (Petroleum Products) Letter written to the Treasurer to (Amendment) confirm that decisions taken by him under the Section referred to are reported to the Parliament.
Caravan Parks and 40 (a) (iv) St Movable The Committee reported on Dwellings inappropriate delegation of power. (Amendment)
Casino Control 4D(b) 4 (Amendment) Appropriate in all the circumstances. No amendment I necessary Casino Control 40 (a) (iv) 5 No amendment (Further necessary Amendment)
Children and 40 (a) (iii) 2 Minister gave Young Persons Parliamentary (Further The Committee suggested that the explanation as to Amendment) Bill be amended to specify a date. the implementation problems of a
final date. I City of Greater 40 (a) (i) 2 Gee long The Committee sought clarification from the Minister as to several concerns.
City of Melbourne 40 (a) (i) 5 AJ.nendxnentmade and varied Section 85 statement 40(b) 7 made.
Commercial 40(b) 40 (a) (i) 2 Attorney-General Arbitration 40 (a) (iv) made amendment (AJ.nendxnent) Appropriate in all the circumstances. to open-ended commencement provision.
Corrections 40 (a) (i) 1 The Minister made ~ (Management) 4D(iv) 2 amendment to remove references to random alcohol testing.
Credit 40 (a) (i) 3 (Administration) (Amendment) The Committee refers the matter to Parliament for debate.
Crimes 40 (a) (i) 1 ,2and 3 06.08.93 Herald Sun (Amendment) 24.11.93 Herald Sun (No. 2) 40 (b) (i) and The Committee refers the matter to 24.11.93 The Age (ii) Parliament for debate. 01.12.93 The Age
Crimes (Criminal 40(a)(i) 2 No amendment Trials) necessary Crimes (HIV) 5 No amendment necessary
Docklands 4D(a)(i) 5 No amendment Authority necessary (Amendment) i Education 4D(a)(i) 3 I (Amendment) 4D(a)(iii) and The Committee notes that in a House (iv) number of areas where Orders are to Amendment made be made the past practice has been regarding to make regulations. The Ministerial Orders. Committee reaffirms its view that any such Orders should be reviewable under the Subordinate Legislation Act 1%2.
~ The Committee refers the matter to 4D(b)(i) and Parliament for debate. (ii) Education Acts 40 (b) (i) 4D(a)(iv) 1 (Teachers) Some Clauses may trespass on rights and freedoms.
4D(a)(i) 2
Section 85 Clause appropriate in the circumstances. Electricity 4D (b) (ill) The Committee wrote to the The Minister Industry Minister requesting an explanation responded by way as to the removal of power from the of a letter. Supreme Court (Section 85).
4D (a) (iii) 2
Equal Opportunity 4D (a) (i) 5 House 25.01.93 The Age (Amendment) Amendment on 05.08.93 Herald Sun (No. 2) Costs. Oct 1993 The Age 4D (b) (i) and Appropriate in all the circumstances. 22.10.93 Herald Sun (ii) 27.10.93 The Age The provisions provide no avenue 24.11.93 Herald Sun 4D (a) (i) for a complainant to initiate an The Committee 26.11.93 Herald Sun expedited hearing. The provisions notes the 26.11.93 The Age should ensure that a complainant in Attorney-General exceptional circumstances may intends to ~ apply to have his or her case undertake a expedited. The matter is referred to wholesale revision Parliament for debate. of the Act.
Estate Agents 4D(a)(iv) 2 Minister gave an (Amendment) undertaking to Investments approved by Treasurer monitor effects on should be subject to Parliamentary minority groups. Scrutiny by tabling.
Ethnic Mfairs 4D(a)(i) 6 Commission Noted that Clause 2 is an open- ended commencement provision and there is no explanation in the Second Reading Notes. Evidence 4D(a)(i) 1 (Unsworn Evidence) The Committee notes the abolition of an existing statutory right.
Financial 5 No amendment Management necessary
Freedom of 40 (a) (i) 3 Information The matter referred to Parliament for debate.
Funerals (Pre-paid 40(a)(iv) 1 Money) The Committee's concerns would be met if the investments approved by the Minister were expressly subject ~ to Tabling in Parliament.
Gaming Machine 40 (a) (i) and 5 No amendment Control (General (iv) necessary Amendment) 40 (a) (ii) 5
Gas and Fuel 4D(b) 7 No amendment Corporation necessary (Heatane Gas)
Health and 4&2 Ministerial Community explanation Services (General 40(a)(i) A Ministerial explanation was received and Amendment) and (ii) sought in respect of some clauses. published.
4D(b) Appropriate in all the circumstances.
--~ ...... --- -- Health and 40 (b) (i) and Appropriate in all the circumstances Community (ii) Services (Further 3 Amendment) 40 (a) (i) Some matters referred to Parliament for debate.
Health Services 40 (b)(i) and Appropriate in all the circumstances No amendment (Amendment) (ii) necessary
Historic 40 (a) (i) 4 No amendment Shipwrecks necessary (Amendment)
Institute of 40(a)(i) 4 No amendment Education necessary Administration $ (Repeal) Juries 40 (a) (i) 2 (Amendment)
Land(Crown 40(a)(i) 2 No amendment Grants and necessary Reserves) 40 (b) Appropriate in all the circumstances
Land (Further 4D(b) Appropriate in all the circumstances No amendment Amendment) necessary
Land 4D(b) Appropriate in all the circumstances No amendment (Miscellaneous necessary Matters) Land Titles 6 04.08.93 Herald Sun Validation The Committee recommends there should be consistency in the drafting of definitions across legislation. Other matters referred to Parliament for debate.
3
40 (a) (i) Appropriate in all the circumstances
40 (b) Legal Profession 40 (a) (i) 2 Attorney-General Practice 40 (a)(iv) 3 made a House (Guarantee Fund) Amendment to deal with "authorised ~ investments". Local Government 4D(a)(i) 1 (General Amendment) The Committee notes powers given to the Governor in Council inappropriate as it delegates from the powers of Parliament.
40(b) 4D(a)(iv) 1
Appropriate in all the circumstances. Local Government 40 (a) (i) 2 No amendment (Miscellaneous necessary Amendment)
Marine 40(b) Appropriate in all the circumstances. No amendment (Amendment) necessary Meat Industry 4D (a) (ii) 2
Some clauses may constitute an undue trespass on rights.
4D (a) (i) 1
Melbourne 5 No amendment Wholesale Fruit necessary and Vegetable Market Trust (Amendment)
Mineral Resources 4D (a) (i) 3 Development (Amendment) The matter referred to Parliament for debate. '-J ...... Murray-Darling 4D(b) Committee noted failure to make Section 85 Basin Section 85 statement. statement made.
Mutual 4D(a)(iv) Open-ended commencement not to No amendment Recognition be recommended, but noted as part necessary (Victoria) No.l of federal scheme. No further comment was made.
Nurses 4D (b) (i) and Section 85 Clause. (ii) Appropriate in all the circumstances
3
Other matters referred to Parliament 4D (a) (i) for debate. Pay-roll Tax 4D (a) (i) 4 No amendment (Amendment) necessary Parliamentary 40 (a) (i) 2 No amendment Salaries and necessary Superannuation The retrospective operation of the (Basic Salary) Bill noted and no further comment made.
Planning and 40 (a) (i) 3 Environment The matter referred to Parliament (Amendment) 40 (b) (i) and for debate. (ii) Appropriate in all the circumstances
Police Regulation 40 (a) (i) 2 14.05.93 The Age (Discipline) 14.05.93 Herald Sun 40 (b) (i) The Committee not in a position to report on Section 85.
;:j Public Sector 40 (a) (i) 5 Management (Amendment) The Committee notes that Section No amendment 106 (2) (u) of the Principal Act is necessary available to make regulations which implement the Public Service Commissioner's guidelines. The Committee recommends that due consideration be given to using this power and thereby subjecting aspects of the operation of the guidelines to Parliamentary Scrutiny by virtue of the Subordinate Legislation Act 1962.
5
40 (a) (iv) Appropriate in all the circumstances. No amendment 2;3 necessary 40(b)
Public Sector 40 (a) (i) 3 Superannuation (Administration) The matter referred to Parliament for debate.
40(b) Appropriate in all the circumstances
Racing 40 (a) (i) 2 (Amendment) The new formation of the TAB may trespass unduly on rights because it removes from the form racing bodies an existing right to direct representation on the TAB. Road Safety 40(b) Appropriate in all the circumstances. No amendment (Amendment) necessary
Rural Finance 40 (a) (ii) 5 No amendment (VEDC) Abolition necessary 40(b) Appropriate in all the circumstances.
Sentencing 40 (a) (i) 2 Attorney-General 14.05.93 The Age (Amendment) amended 14.05.93 Herald Sun cumulative 19.05.93 The Age sentencing provisions and gave appropriate undertakings in relation to indefinite sentencing. ~ State Owned 40 (a) (iv) 5 No amendment Enterprises necessary (Amendment) 40 (a) (v) The Committee is of the opinion the Orders should be deemed to be statutory disallowable instruments.
State Taxation 40(b)(i) and Appropriate in all the circumstances. No amendment (Further (ii) necessary Amendment)
Subordinate 5 No amendment Legislation necessary Amendment
Tattersalls 40 (a) (i) 5 No amendment Consultations necessary (Further 40(b) Appropriate in all the circumstances. Amendment) Teaching Service 4D (a) (i) 5 No amendment (Amendment) necessary 4D (b) Appropriate in all the circumstances.
Tertiary Education 4D (a) (iv) The Committee drew the Minister's Amendments attention to guidelines and the made by Minister. power to charge "reasonable fees".
Transport 4D (a) (i) 5 No amendment (Amendment) necessary
4D (a) (i) and 3 (li) Some matters referred to Parliament for debate.
4D (a) (ili) The Committee recommends that 2/l the Bill be amended to provide for a right of appeal to the AAT in respect of restricted hire vehicle licences.
Appropriate in all the circumstances 4D (b) (i) and (il) Victorian 4D(b)(i) Appropriate in all the circumstances No amendment Plantations necessary Corporation
Vocational 4D (a) (v) 1 Minister made Education and 4D (a) (iv) 2 appropriate Training (College 4D (a) (ili) 2 amendments. Employment) APPENDIX2
INDEX OF REPORTED BILLS IN ALERT DIGESTS
Name of Bill Alert Digest No.
Accident Compensation (Workcover Insurance) 10 Audit 20 Barley Marketing 2 Board of Studies 4 Building 19 Business Franchise (Petroleum Products) (Amendment) 8 Caravan Parks and Movable Dwellings (Amendment) 6 Casino Control (Amendment) 5 Casino Control (Further Amendment) 15 Children and Young Persons (Further Amendment) 5 City of Greater Geelong 5 City of Melbourne 15 Commercial Arbitration (Amendment) 2 Corrections (Management) 3 Credit (Administration) (Amendment) 13 Crimes (Amendment) Bill (No.2) 19 Crimes (Criminal Trials) 7 Crimes (HIV) 4 Docklands Authority (Amendment) 7 Education Acts (Teachers) 7 Education (Amendment) 19 Electricity Industry 20 Equal Opportunity {Amendment) Bill {No.2) 17 Estates Agent {Amendment) 6 Ethnic Affairs Commission 6 Evidence {Unsworn Evidence) 1 Financial Management 20 Freedom of Information 9 Funerals (Pre-paid Money) 6 Gaming Machine Control (General Amendment) 3 Gas and Fuel Corporation (Heatane Gas) 15 Health and Community Services (Further Amendment) 19 Health and Community Services (General Amendment) 7 Health Services (Amendment) 18 Historic Shipwrecks (Amendment) 11 Institute of Education Administration (Repeal) 7 Juries {Amendment) 16 Land (Crown Grants and Reserves) 3 Land (Further Amendment) 14 Land (Miscellaneous Matters) 6 Land Titles Validation 12 Legal Profession Practice (Guarantee Fund) 7
76 Local Government (General Amendment) 7 Local Government (Miscellaneous Amendments) 20 Marine (Amendment) 5 Meat Industry 5 Melbourne Wholesale Fruit and Vegetable Market Trust (Amendment) 20 Mineral Resources Development (Amendment) 14 Murray Darling Basin 4 Mutual Recognition (Victoria) No.1 1 Nurses 17 Parliamentary Salaries and Superannuation (Basic Salary) 2 Pay-roll Tax (Amendment) 5 Planning and Environment (Amendment) 19 Police Regulation (Discipline) 6,7,8, Public Sector Management (Amendment) 14 Public Sector Superannuation (Administration) 17 Racing (Amendment) 7 Road Safety (Amendment) 15 Rural Finance (VEDC Abolition) 14 Sentencing (Amendment) 7,8 State Owned Enterprises (Amendment) 16 State Taxation (Further Amendment) 16 Subordinate Legislation (Amendment) 1 Tattersall Consultations (Further Amendment) 14 Teaching Service (Amendment) 15 Tertiary Education 6,7 Transport (Amendment) 18 Victorian Plantations Corporation 10 Vocational Education and Training (College Employment) 3
77
EXTRACTS FROM THE PROCEEDINGS
The Minutes of the Committee show the following Divisions which took place during the consideration of the draft Report.
Wednesday, 2 March 1994
Chapter 3 - The Interpretation of Principles
1. Paragraph 3.1
Question- That paragraph 3.1 stand part of the Report- put.
The Committee divided.
AYES,6 NOES, 1
Dr K.A. Coghill Hon. L. Asher Hon. M. Gould Mr Victor Perton Hon. T.W. Roper Hon. B.A.E. Skeggs Mr M.H. Thompson
And so it was resolved in the affirmative.
2. Paragraph 3.5
Question - That paragraph 3.5 stand part of the Report - put.
The Committee divided.
AYES,6 NOES,1
Dr K.A. Coghill Hon. L. Asher Hon. M. Gould Mr Victor Perton Hon. T.W. Roper Hon. B.A.E. Skeggs Mr M.H. Thompson
And so it was resolved in the affirmative.
3. Paragraph 3.6
Question - That paragraph 3.6 stand part of the Report - put.
79 The Committee divided.
AYES,6 NOES,l
Dr K.A. Coghill Hon. L. Asher Hon. M. Gould Mr Victor Perton Hon. T.W. Roper Hon. B.A.E. Skeggs Mr M.H. Thompson
And so it was resolved in the affirmative.
4. Paragraph 3.7
Question - That paragraph 3.7, as amended, stand part of the Report - put.
The Committee divided.
AYES,6 NOES,l
Dr K.A. Coghill Hon. L. Asher Hon. M. Gould Mr Victor Perton Hon. T.W. Roper Hon. B.A.E. Skeggs Mr M.H. Thompson
And so it was resolved in the affirmative.
5. Paragraph 3.8
Question - That paragraph 3.8, as amended, stand part of the Report - put.
The Committee divided.
AYES,6 NOES,l
Dr K.A. Coghill Hon. L. Asher Hon. M. Gould Mr Victor Perton Hon. T.W. Roper Hon. B.A.E. Skeggs Mr M.H. Thompson
And so it was resolved in the affirmative.
80 Monday, 28 March 1994
Chapter 1 - Introduction
1. Paragraph 1.30
Question - That paragraph 1.30 stand part of the Report - put.
The Committee divided.
AYES,5 NOES,1
Hon. M. Gould Hon. L. Asher Mr Victor Perton Hon. B.A.E. Skeggs Mr M.H. Thompson Mr J.W. Thwaites
And so it was resolved in the affirmative.
81
Minority Report to Parliament on the Annual Report of the Scrutiny of Acts and Regulations Committee
by
The Hon L. Asher, MLC
Pursuant to Section 4 N (4)
of the
Parliamentary Committees Act 1968
83 ANNUAL REPORT OF THE SCRUNITY OF ACTS AND REGULATIONS COMMITTEE
Minority Report
The Committee's Establishment and Operations
The Scrutiny of Acts and Regulations Committee is an initiative of the Kennett Government. It was established by the Parliamentary Committees (Amendment) Act, introduced into Parliament by the Premier in October 1992.
The previous Labor Government refused to establish a mechanism for parliamentary scrutiny of legislation, despite the fact that it had been recommended by the Legal and Constitutional Committee in 1987. 1 In May 1992, the then Leader of the Opposition in the Legislative Council, the Hon. Mark Birrell moved the Parliamentary Committees (Amendment) Bill (No. 2). The bill proposed a parliamentary Scrutiny of Bills Committee. However, the Government of the day refused to pass this bili.2
In October 1992, the newly elected Coalition Government introduced the Parliamentary Committees (Amendment) Act, which established the Scrutiny of Acts and Regulations Committee. The Committee is modelled on the Senate Scrutiny of Bills Committee. The very fact that the Coalition introduced such a committee shows a willingness by the Government to subject itself to parliamentary scrutiny to a degree not previously seen in Victoria.
The Scrutiny of Acts and Regulations Committee has achieved some desirable outcomes, including providing an opportunity for the wider community to present concerns about proposed legislation at public hearings. As the Annual Report has pointed out, there are many examples of Ministers responding positively to the Committee's concerns. In particular, significant amendments were made by the Government to the draft Crimes Bill, tabled by the Attorney General for public comment at the end of the Autumn session, following the Committee's public hearings.
However, an Annual Report provides an appropriate opportunity for reflection on the Committee's operations during the past year, including reflection on the Committee's limitations. Unfortunately, this opportunity has not been taken up by the full Committee, which has glossed over its own shortcomings. For a Committee which prides itself on its analysis of the shortcomings of legislation, it is inappropriate not to apply a similar standard of analysis to its own operations. The purpose of this minority report is to draw attention to problems in the Committee's legislative charter and the interpretation by the current Committee of that charter.
1Legal and Constitutional Committee, A Report to Parliament on the desirability or otherwise of legislation defining and protecting Human Rights, 1987
2See Hansard, Legislative Council, 20 May 1992 and 3 June 1992.
84 These issues have not been sufficiently addressed in the First Annual Report and have been the source of frequent debate between Committee members.
The main statutory functions of the Scrutiny of Acts and the Regulations Committee are set out in Section 4D of the Parliamentary Committees Act as follows:
"The functions of the Scrutiny of Acts and Regulations Committee are-
(a) to consider any Bill introduced into a House of the Parliament and to report to the Parliament as to whether the Bill, by express words or otherwise - (i) trespasses unduly upon rights or freedoms; or (ii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers; or (iii) makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions; or (iv) inappropriately delegates legislative power; or (v) insufficiently subjects the exercise of legislative power to parliamentary scrutiny; and
(b) to consider any Bill introduced into a House of the Parliament and to report to the Parliament (i) as to whether the Bill by express words or otherwise repeals, alters or varies section 85 of the Constitution Act 1975, or raises an issue as to the jurisdiction of the Supreme Court; (ii) where a Bill repeals, alters or varies section 85 of the Constitution Act 1975, whether this is in all the circumstances appropriate and desirable; or (iii) where a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975. but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue;"
The Committee has been fair and reasonable in carrying out most of its functions. Indeed, Ministers have been quick to rectify shortcomings in bills where people's rights were made 'dependent upon insufficiently defined administrative powers' or 'dependent upon non-reviewable administrative decisions.' All Members of Parliament, whether they be Ministers or backbenchers, Liberal, National or Labor, have an interest and an obligation to ensure these things do not occur. Generally, there has been agreement amongst the Committee on matters raised under Section 4D (a) (ii) to (v).
Similarly, the Committee has not experienced major difficulties reporting on Section 4D(b). While there may be debate about the need to vary Section 85 of the Constitution Act 1875, the Committee has not had difficulty identifying this and usually reported that the variation was 'appropriate and desirable.'
85 The Committee's Limitations
However, the greatest debate at Committee meetings has occurred in respect of Section 40 (a) (i). Section 40 (a) (i) is extremely broad. The Committee is required to consider whether any Bill 'by express words or otherwise' 'trespasses unduly upon rights or freedoms.'
In my view, this section requires the Committee to firstly consider the rights and freedoms which exist or should exist in modern Australian society. At the conclusion of that process, it would be reasonable to expect vigorous debate on what constituted an 'undue' trespass on these rights. Of course, philosophers have been grappling with these concepts for centuries and while I do not expect a Victorian Parliamentary Committee to 'solve' these issues, I do consider it reasonable to expect the Committee to attempt to address the problem of definition. Unfortunately, this has not occurred to any meaningful extent.
1) Inadequate Analysis of Rights
At its first meeting to discuss bills, the Committee made a decision to include existing statutory rights in its definition of a right. This definition, in my opinion, has resulted in the unfortunate situation where any change to existing legal rights is reported by the Committee to the Parliament. Unfortunately, if the Scrutiny of Acts and Regulations Committee reports a change in the law as a 'removal,' a 'diminution' or a 'reduction' of a right, it is often interpreted as a major assault on human rights in the broadest sense.
An excellent example of this is the Committee's report on the Evidence (Unsworn Evidence) Bill, which was the first bill examined by the Committee.
The Evidence (Unsworn Evidence) Bill was the implementation of a specific election promise made by the Coalition to abolish a court-room procedure whereby the accused was able to make an unsworn statement at a trial. This practice was, in my view, particularlyunfair to rape victims, who were required to give sworn evidence which was subject to cross-examination, while the accused was able to offer an unsworn statement which was not subject to cross-examination. The reasons for the existence of this procedure are historical, when the accused was originally not able to give evidence at all for fear that perjury would result. The bill preserved the accused's right to silence, but ensured that if the accused elected to give evidence that it would be subject to cross-examination.
The Bill presented by the Government was a long-overdue reform which augmented the rights of victims. However, the Scrutiny of Acts and Regulations Committee simply reported to the Parliament that
"This clause succinctly abolishes a person's existing statutory right to make an unsworn statement or to give unsworn evidence. This removes an existing statutory right hitherto enjoyed by accused persons."3
3 Alert Digest No. 1, 3 March 1993.
86 No attempt was made by the Committee to assess whether this was an 'undue' trespass or not or whether increased rights for victims to a fair trial justified the proposed changes to the law. The Bill was examined solely from the perspective of alterations to the accused's previous rights in law. This approach, to which I objected at the time, is blinkered and simplistic. It only considers one side of the issue. It is also an inadequate performance of the Committee's functions under Section 4D (a) (i) which demands a qualitative assessment.
The fact that the Bill was reported in this manner in the Alert Digest gave rise to an impression that the bill was somehow contravening basic human rights when that was not the case. The Shadow Attorney-General, Neil Cole, said in the Legislative Assembly that
"..... I direct attention to the submission made to Parliament by the all powerful Scrutiny of Acts and Regulations Committee which expressed reservations about removing the right."4
The precedent for reporting change itself rather than the necessary qualitative assessment was established by the Committee's unfortunate handling of this first Bill, the Evidence (Unsworn Evidence) Bill.
The Committee followed this precedent for the entire year, leading to much (justified) Parliamentary and media misunderstanding and criticism of Government legislation. Another example of the Committee's continued application of this early ruling occurred when the Government introduced the Education (Amendment) Bill in October 1993. Among other things, the Bill prohibited school councils from taking legal action against any person without the written consent of the Minister.
The Committee reported that
"Some may argue that this latter limit may be said to trespass upon rights or freedoms hitherto enjoyed by school councils. Alternatively, the provision could be construed as quite properly asserting a power distribution which places the responsible Minister in charge .....
The Committee agrees that this proposed provision results in a diminution of rights and freedoms in respect of school councils. However, the Committee believes that the question as to whether or not such a diminution amounts to an undue trespass upon rights and freedoms of such councils is a matter for debate in the Parliament."5
4Hansard, Legislative Assembly,S May 1993, p. 1604.
5Alert Digest No. 16, 10 November 1993.
87 The Committee unquestioningly followed the first interpretation of its charter and reported that the bill resulted in a diminution in the existing legal 'rights' of school councils. The issue of whether there is some broader moral necessity for school councils to have this 'right' to conduct litigation which may be funded from State resources was not addressed.
A foreseeable corollary was that an Age journalist seized on the Committee's report and published an article with the headline "School bill cuts into rights: report." The article stated
"The report, by the coalition-dominated scrutiny of acts and regulations committee, criticised moves to prohibit schools from taking any legal action against a minister's decision to close a school, saying that to do so would reduce rights and freedoms .....
A section of the bill that prohibits school councils from taking legal action without the written consent of the minister resulted in a 'diminution of rights and freedoms in respect of school councils,' the report said."6
Similarly, the Opposition used the Committee's reporting of change to existing law to claim that the Government was being criticised by its own members.
It is not unreasonable for Members of Parliament and the media to place this interpretation on the Committee's language. After having observed the response of people to the Committee's reports, it does not serve a great deal of purpose for a parliamentary committee to draw to the Parliament's attention that an existing statutory right is being removed or changed. Members of Parliament are aware that Bills alter existing laws. That is indeed the purpose of legislation.
The notion that all change to the law is an infringement of human rights has some currency, being a view held by the Chairman of Consolidated Press, Mr Kerry Packer, who told the 1991 House of Representatives Select Committee on the Print Media
"Every time you pass a law you take somebody's privileges away from them."7
This is a simplistic view which does not take account of the complexity and variety of legislation before Parliament, much of which is actually to enhance people's rights. Whilst the Victorian Scrutiny of Acts and Regulations Committee clearly supports Mr Packer's definition of human rights, I do not think a parliamentary committee with a brief to protect human rights should adopt this simplistic approach.
6The Age, 11 November 1993, p. 8.
7House of Representatives, Select Committee on the Print Media, Canberra 1991, p. 1184.
88 Furthermore, the Senate Scrutiny of Bills Committee appears not to adopt this method of operation. In 1993, the Senate Scrutiny of Bills Committee did not report on bills in this manner. The Senate Committee reports that a bill may trespass unduly on personal rights and liberties if certain clearly defined circumstances arise: retrospectivity; legislation by press release; abrogation of the privilege against self incrimination; reversal of the onus of proof; strict liability offences; powers of search and seizure without warrant; and breaches of international human rights obligations.s The Victorian Committee reports these matters, but it goes much further than the Senate Committee when it reports that change to the law constitutes ipso facto a reduction in rights. This is of particular concern given that, as outlined above, the process of analysis used to determine a reduction in rights is simplistic. The Senate Committee reported on the Social Security Amendment Bill (No. 2) 1993 that
"..... the Committee notes that the proposed amendment would diminish rights preserved by the general principle of law"9
This is the closest example I can find of a similar reporting style in the Senate, yet this example is clearly not as simplistic as the Victorian approach.
It makes for an interesting comparison to note the Senate's approach to the controversial Political Broadcasts and Political Disclosures Bill 1991, the bill introduced by the Federal Government attempting to ban political advertising on radio and television. The Senate Committee reported
"Prima facie, the limitations which are to be imposed by the Bill amount to an interference with the freedom of expression. Such an interference would be considered a trespass on personal rights and liberties as contemplated by principle 1(a)(i) of the Committee's terms of reference. However, the principle requires the Committee to examine legislation as to whether it trespasses unduly on personal rights and liberties.
The Committee acknowledges that the freedom of expression is not absolute ..... Restrictions on the freedom of expression which are currently regarded as necessary relate to matters such as defamation, pornography and the incitement of racial hatred. Ultimately, what is a necessary restriction is a matter of public policy. As such, it is a question which is appropriately a matter for decision by the Parliament."lO
85ee Report on the operation of the Senate Standing Committee for the Scutiny of Bills during the 36th Parliament, May 1990 - February 1993.
9Senate, Alert Digest No. 5, 1993.
lDSenate, Alert Digest No. 8, 1991.
89 The Committee did not report that the bill reduced existing rights, preferring instead to present a more sophisticated analysis on what was one of the most controversial bills on which it was required to report.
Senator Barney Cooney, a former Chairman of the Senate Scrutiny of Bills Committee, has said
"It is important to note that, in reporting to the Senate, the Committee expresses no concluded view on any possible offence of provisions. Given the nature of the Committee's brief, these are matters which are ultimately for the Senate to decide."ll
It is here that the Victorian Committee breaks with Senator Cooney's interpretation of Senate practice. The Victorian Committee expresses concluded views and has not questioned its own practice and assumptions in doing so.
Human rights in our society are complex, dynamic and difficult to define. To claim, as the Victorian Scrutiny of Acts and Regulations Committee does, that change to the law is a reduction in rights is too simplistic.
2} Reporting Style
Another problem with the working of the Committee is that, in an attempt to procure unanimity, the Committee has been reluctant to report that there has been division of opinion among Committee members. When faced with division, the Committee invariably reports that a certain clause 'may' trespass on rights. This is in accordance with the Senate practice. For those members who believe that a certain clause does not present a human rights problem in the broadest sense, the use of the word 'may' is inconclusive. Indeed, there were occasions on which I argued for the use of 'may' rather than 'does.' For members of the Committee who believe that a certain clause does trespass on rights, the fact that the clause is highlighted in the Alert Digest is of value.
This form of wording was often seized upon by opportunists. An example of this occurred with the Committee's report on the Sentencing (Amendment) Bill. The Bill provided for increased penalties for serious sexual offenders and serious violent offenders and empowered courts to impose indefinite sentences in certain exceptional circumstances. The Committee reported that
"Having read and heard a great deal of evidence on the point, the Committee believes that the clause may trespass unduly upon rights or freedoms''
and
llSenator Bamey Cooney, "The Operation of the Senate Standing Committee for the Scrutiny of Bills: 1981-1991" in Ten Years of Scrutiny, a seminar to mark the Tenth Anniversary of the Senate Standing Committee for the Scrutiny of the Bills. Canberra 1991, p. 18.
90 "The Committee nonetheless believes that indefinite sentences may trespass unduly upon rights or freedoms."I2
The Age newspaper reported that
"The State Government yesterday pushed through legislation that will allow indefinite jail sentences for certain sex and violence offenders.
This was despite warnings from a Government-dominated parliamentary committee that it trespassed on individual rights and freedoms."13
Mr. Desmond Lane, a barrister, in a letter published in the Age claimed
"Last Thursday morning, the all-party scrutiny of acts and regulations committee of the State Parliament tabled its report on the Sentencing (Amendment) Bill. The report was signed by the five Government and four Opposition members of the committee. They were of one mind that the bill "unduly trespassed on rights or freedoms."
Mr. Lane went on to say that
"What was remarkable was that each of the Government members of the committee, which had found that the bill "unduly trespassed on rights or freedoms" nevertheless supported it becoming law."l4
The reality was that the Committee did not report that the Bill trespassed on rights. The Committee had used the word 'may' because it was unable to agree on whether the Bill actually did unduly trespass on rights. I do not blame either the Age journalist or its correspondent for reaching the conclusions they did. However, their interpretations are not correct. In fact, the use of the word 'may' was the terminology repeatedly used when the Coalition members and the Labor members split along party lines as to whether a bill infringed on rights.
A Committee such as the Scrutiny of Acts and Regulations Committee undoubtedly has a role to play in alerting the Parliament to possible infringements of rights of citizens. However, I do not think anything meaningful is gained from the Committee pointing out that existing legal rights are being altered by government legislation, when that is often the explicit purpose of the legislation in question. Nor, on reflection, do I think there is a useful purpose to reporting that bills 'may' trespass on rights or freedoms when this terminology is simply a euphemism for the fact that the Committee has divided, usually on party lines.
12Atert Digest No. 8, 13 May 1993.
13Age,l4 May 1993.
14Age, 19 May 1993.
91 Section 3.8 of the Annual Report states that the Committee believes that its use of language "provides the Parliament with some certainty and understanding as to the Committee's deliberations and approach." I disagree. I believe the Committee could make a more meaningful contribution to the preservation of human rights if it reconsiders the manner in which it interprets Section 40 (a)(i) of its enabling legislation and reports its deliberations.
Louise Asher Member for Monash Province 30 March 1994
92