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SCRUTINY OF ACTS AND REGULATIONS COMMITTEE FIFTH ANNUAL REPORT MAY-1998 SCRUTINY OF ACTS AND REGULATIONS COMMITTEE FIFTH ANNUAL REPORT MAY1998 ORDER TO BE PRINTED Melbourne GOVERNMENT PRINTER 1998 No. 6- SESSION 1998 Parliament of Victoria, Australia Scrutiny of Acts and Regulations Committee Fifth Annual Report Bibliography ISSN 144~5776 ii EXTRACTED FROM THE MINUTES OF THE PROCEEDINGS OF THE LEGISLATIVE COUNCIL TUESDAY 14 MAY 1996 22. SCRUTINY OF ACTS AND REGULATIONS COMMITTEE -The Honourable R.L Knowles moved, by leave, That the Honourables P.A. Katsambanis, M.T. Luckins and D.A Nardella be members of the Scrutiny of Acts and Regulations Committee. Question put and resolved in the affirmative. EXTRACTED FROM THE VOTES AND PROCEEDINGS OF THE LEGISLATIVE ASSEMBLY TUESDAY 14 MAY 1996 19. APPOINTMENT OF COMMITTEES - Motion made, by leave, and question- That (h) Mr Cameron, Mr Carli, Ms Gillett-Douglas, Mr Plowman (Benambera), Mr Ryan, and Mr Thompson, be members of the Scrutiny of Acts and Regulations Committee. (Mr Gude) - put and agreed to. * Ms Gillett-Douglas is now known as Ms Gillett. ill iv SCRUTINY OF ACfS AND REGULATIONS COMMITTEE MEMBERS Mr P.J. Ryan, MP (Chairman) Mr M.H. Thompson, MP (Deputy Chairman) Mr R.G. Cameron, MP Mr C. Carli, MP Ms M.J. Gillett, MP The Hon. P.A. Katsambanis, MLC The Hon. M.T. Luckins, MLC The Hon. D.A. Nardella, MLC Mr A. Plowman, MP STAFF Ms Helen Mason Senior Legal Adviser Ms Tanya Coleman Research Officer Ms Nadia Krivetz Research Officer Mr Simon Dinsbergs Assistant Executive Officer Mr Richard Kings Office Manager COMMITTEE ADDRESSES LevelS 35 Spring Street MELBOURNE VIC 3000 Telephone Inquiries (03) 9651 3618 Facsimile (03) 96513674 E-Mail [email protected] (Helen Mason) Internet Home Page http://www.vicnet.net.au/ -sarc V vi INTRODUCI'ION BY THE CHAIRMAN MR PETER RYAN MLA Once agam it is my privilege to inb'oduce the Fifth Annual Report of the Scrutiny of Acts and Regulations Committee concerning the scrutiny of primary legislation for the period from March 1997 to March 1998. The Committee has had a successful year. It has consdentiously scrutinised 110 bills and issued 12 Alert Digests. The Committee is often forced to explore the unclear waters in which "rights" exist. I am pleased to say that the sb'ong bi-partisan spirit with which the Committee operates, serves it well. That contribution is crudal to the success of a Committee such as this one. I am reminded of a quotation which gives a sense of the Committee's focus:- "Rights do not necessarily give the answer, they provide a basis for identifying the relevant values or interest, and enable a rational discussion to take place. "1 If the Committee assists with the effective ventilation of issues in the Parliament, then it can be said to have served the Victorian people properly. On a different note, the Committee has continued to b'avel smoothly in its scrutiny of subordinate legislation and review of unclear and redundant legislation. The Committee has also been delighted to receive a new Reference in recent months to "Review the Right to Silence". The Right to Silence is a fundamental cornerstone of the criminal law and the Committee will ensure that a review of it is conducted with great care, thought and diligence. In July 1997 some members and staff partidpated in the Sixth Ausb'alasian & Pacific Conference on Delegated Legislation and Third Ausb'alasian & Padfic Conference on the Scrutiny of Bills in Adelaide. I delivered a Paper which explored the practical changes which have occurred throughout the life of the Committee and the way in which its work is viewed by Ministers and those advising them. A review of the Conference may be found in Chapter 1 of the Report. Generally, however, it was felt that there were great benefits from both the formal and informal discussions which took place over the course of the three days. I wish to express my personal thanks to all members of the Committee for their work during the year. Their enthusiasm when requested to attend meetings is unfailing. Their dedication to "getting the job done" at the meetings is most appredated. In particular, I wish to acknowledge the able support of Mr Murray Thompson MLA, Deputy Chair of the Committee. 'See article, "Paedophiles in black and white .... or not?", Peter Bailey, Australian Lawyer, Volume 32, No.4, May, 1997, p.3. vii Finally, I extend my thanks toMs Helen Mason, the Executive Officer who carefully examines each Bill introduced into the Parliament and provides legal advice to the Committee; Mr Simon Dinsbergs, Assistant Executive Officer and Mr Richard Kings, Office Manager who work diligently to ensure that all reports are tabled promptly. I would also like to thank Ms Tanya Coleman and Ms Nadia Krivetz, legal officers involved with subordinate legislation and the review of redundant and unclear legislation. It is also appropriate to acknowledge the assistance of our previous staff member, Ms Rhonda MacMahon. Mr Peter Ryan MLA Chairman Scrutiny of Acts and Regulations Committee vili SCRUTINY OF ACTS AND REGULATIONS COMMITTEE FIFTH ANNUAL REPORT TABLE OF CONTENTS Extracts of Committee Membership ....................................................................... iii Members and Staff ..................................................................................................... v Chairman's Introduction ......................................................................................... vii CHAPTER! Introduction .............................................................................. 1 The Scrutiny of National Scheme Legislation .................... 3 CHAPTER2 The Scrutiny of Bills .............................................................. 11 The Interpretation of Principles .......................................... 12 Table of Ministerial Correspondence ................................. 21 CHAPTER3 Section 85 of the Constitution Act 1975 .............................. 23 CHAPTER4 The Scrutiny of Regulations ................................................ 29 CHAPTERS The Review of Other Legislation ........................................ 33 CHAPTER6 The Reported Bills ................................................................. 37 APPENDIX! Index of Reported Bills in Alert Digests ........................... 49 APPENDIX2 Index of Bills enacted during 1996 affecting the jurisdiction of the Supreme Court ............................... 53 APPENDIX3 Index of all Reports tabled by the Committee .................. 55 ix X CHAPTER 1 OVERVIEW 1.1 Introduction This is the Fifth Annual Report of the Scrutiny of Acts and Regulations Committee. By way of background, the Committee was established at the beginning of the 52nd Parliament in October 1992. The 52nd Parliament was dissolved in March 1996 when the State Election was held. The Committee was reconstituted with new members in June 1996. This Report covers the period in the 53rd Parliament from March 1997 to March 1998. 1.2 The functions of the Committee The Committee has three functions:- • to scrutinise primary legislation, ie., all new bills as they make their passage through Parliament; • to scrutinise subordinate legislation, ie., all statutory rules; • to review any area or legislation referred to it by the Governor in Council. In 1994, the Committee was given a Reference by the Governor in Council to review all redundant, ambiguous and poorly drafted legislation. The Reference is commonly known as the "Redundant Legislation Reference». The Committee has also received a Reference to "Review the Right to Silence". The review of other legislation is discussed in more detail in Chapter Five. 1.3 This Report deals prindpally with the first function of the Committee, ie., the scrutiny of bills, although reference is made to its other roles. The review of subordinate legislation is discussed in more detail in Chapter Four. 1 Scrutiny of Acts and Regulations Committee -Annual Report 1.4 The Present Committee In 1997, the members of the full Committee were:- • Mr Peter Ryan MLA, Chaix; • Mr Murray Thompson MLA, Deputy Chair; • Mr Robert Cameron MLA; • Mr Carlo Carli MLA; • Ms Mary Gillett MLA; • The Honourable Peter Katsambanis MLC; • The Honourable Maree Luckins MLC; • The Honourable Donato Nardella MLC; • Mr Anthony Plowman MLA. 1.5 The Subcommittees The Subordinate Legislation Subcommittee The members of the Subordinate Legislation Subcommittee were:- • Mr Murray Thompson MLA, Chair; • Ms Mary Gillett MLA; • The Honourable Peter Katsambanis MLC; • The Honourable Maree Luckins MLC; • The Honourable Donato Nardella MLC. 1.6 The Redundant Legislation Subcommittee The members of the Redundant Legislation Subcommittee were:- • The Honourable Maree Lucldns MLC, Chair; • Mr Murray Thompson MLA; • Mr Robert Cameron MLA; • Mr Carlo Carli MLA; • The Honourable Peter Katsambanis MLC. 1.7 Public Hearings There were no Public Hearings held this year. 2 Chapter 1 -Overview 1.8 The Scrutiny of National Scheme legislation The discussion regarding the principles to be applied in the proposed scrutiny of national scheme legislation came to fruition in 1996.1 The Position Paper published in October 1996 was the result of two and a half years work by the Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia. The Position Paper canvasses the following matters:- • the adoption of uniform Terms of Reference for the Scrutiny of Primary National Scheme Legislation; • the adoption of uniform Terms of Reference for the Scrutiny of National
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