Annual Review 2003, May 2004

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The Annual Review

This report provides a summary of the Scrutiny of Acts and Regulations Committee’s (‘the Committee’) work in the scrutiny of Bills and outlines its other statutory reporting and inquiry functions during 2003. There are two useful publications that further describe the Committee’s work and activities during 2003, the Annual Review of Statutory Rules considered in 2002[i] and the cumulative Alert Digest of 2003[ii] concerning the scrutiny of Bills introduced in the Parliament. The Committee’s Alert Digests and all other inquiry reports and discussion papers are available on the Committee’s Website.

The Scrutiny of Acts and Regulations Committee

The Scrutiny of Acts and Regulations Committee (“the Committee”) is established under the Parliamentary Committees Act 2003[iii] (“the Act”) as one of the 11 Joint House Committees of the Victorian Parliament. The Committee is one of 5 Joint House Committees administered by the Department of the Legislative Assembly. The remaining 6 Joint House Committees are administered by the Department of the Legislative Council. The membership of the Committee is drawn from members elected to the Council and the Assembly and from government and opposition members.

History of the Committee in brief

The Committee under its current name and functions was established in November 1992 at the beginning of the 52nd Parliament. Mr Victor Perton MLA (LP - Doncaster) became the Committee's first Chairman. Following the March 1996 State election the Committee was reconstituted for the 53rd Parliament with Mr Peter Ryan MLA (NP - Gippsland South) as Chairman. The 53rd Parliament was dissolved in August 1999. The Committee of the 54th Parliament was reconstituted on 15 December 1999 with Ms Mary Gillett MLA (ALP - Werribee) elected Chair of the Committee. From March 2003 the Chair of the Committee in the 55th Parliament is Ms Lily D'Ambrosio MLA (ALP - Mill Park).

Other jurisdictions which have parliamentary committees with a scrutiny of bills function are the Commonwealth, Queensland, New South Wales and the Australian Capital Territory. All Australian jurisdictions have some form of scrutiny of subordinate legislation (regulations/ordinances) function.

New Parliamentary Committees Act 2003

In the previous Parliament the Committee undertook an inquiry into the Parliamentary Committees Act 1968. The terms of reference of that inquiry requested the Committee to make recommendations to the Parliament for a new Act. The Committee tabled its report on a proposed improved Act with over 30 recommendations in May 2002.

On 5 November 2003 a new Parliamentary Committees Act 2003 was introduced into the Parliament and passed through the Council and the Assembly in the Spring Session. The Act received Royal Assent on 9 December 2003 and came into operation on the next day.

New features of the 2003 Act include -

• Automatic jurisdiction for the Committee to consider Acts passed within 30 days after the first appointment of the incoming Committee established in a new Parliament in circumstances where the Committee had no opportunity to otherwise report on that Act under sections 17(a) or 17(b) of the Parliamentary Committees Act 2003,[iv]

• Committees may empower one or more Committee members to take evidence at a public hearing,[v]

• Committee reports may be tabled when Parliament is not in session,[vi]

• Removal from the Act of provisions concerning private Bills,[vii]

• Use of gender neutral language throughout the Act.

Committee composition and membership

The Act[viii] requires that the Committee must be composed of not more than nine members of whom at least two must be members of the Legislative Council and two must be members of the Legislative Assembly.

The Committee of the 55th Parliament consists of nine members. Seven members are from the Legislative Assembly and two members from the Legislative Council. As in the Committees established in the previous Parliaments, five of the nine members are from the government and four from the opposition.

Members during 2003

The members of the Committee during 2003 were -

• Ms Lily D'Ambrosio MLA (Chairperson)

• Mr Murray Thompson MLA (Deputy Chairperson)

• The Hon. Lidia Argondizzo MLC

• Mr Ken Jasper MLA " Mr Michael Leighton MLA

• Mr Peter Lockwood MLA

• Mr Andrew McIntosh MLA

• The Hon. Andrew Olexander MLC

• Mr Jude Perera MLA

The Subcommittees

As in the previous Parliament, by resolution of the Committee, the Regulation Review Subcommittee and the Redundant Legislation Subcommittee were re-established in April 2003.

Regulation Review Subcommittee

Functions

The functions of the Subcommittee are to review statutory rules, as defined by the Subordinate Legislation Act 1994, against specified terms of reference specified in that Act.[ix] Pursuant to other statutory reporting responsibilities the Subcommittee must review other specified subordinate instruments. During the term of the 54th Parliament the Committee completed a major review of the Subordinate Legislation Act 1994. The report on that inquiry was tabled in September 2002. To date no new legislation has been introduced giving effect to the recommendations made by the Committee that have been accepted by the government.

In 2003 the members of the Regulation Review Subcommittee were -

• Mr Peter Lockwood MLA, (Chairperson)

• Ms Lily D'Ambrosio MLA

• Mr Ken Jasper MLA

• The Hon. Andrew Olexander MLC

• Mr Jude Perera MLA

Redundant Legislation Subcommittee

Functions

The Subcommittee operates under a long standing Governor in Council reference to; review and make recommendations concerning Acts of Parliament or legislative instruments that are unclear, ambiguous or should be redrafted; reduce the number and complexity of Acts and legislative instruments; and ensure that Acts and instruments are clearly expressed in accordance with modern drafting practices.

The terms of reference of this on-going inquiry are shown in Appendix 8.

The Members of the Redundant Legislation Subcommittee during 2003 were -

• Mr Murray Thompson MLA (Chairperson)

• Ms Lily D'Ambrosio MLA

• The Hon. Lidia Argondizzo MLC

• Mr Michael Leighton MLA

• Mr Andrew McIntosh MLA

Other Subcommittees

By resolution the Committee has established two additional subcommittees. The Equal Opportunity Subcommittee was established to undertake the inquiry pursuant to section 207 of the Equal Opportunity Act 1995 and the E-Democracy Subcommittee to undertake an inquiry concerning electronic media and its future use and implications in respect to participatory democracy.

Equal Opportunity Subcommittee

Function

To undertake a review pursuant to section 207 of the Equal Opportunity Act 1995 in respect to discrimination in the law (Victorian enactments other than Council by-laws or local laws). The terms of reference of the inquiry are shown in Appendix 7.

The Committee resolved that this inquiry should be undertaken by the Subcommittee comprising all Members of the Committee.

E-Democracy Subcommittee

The Subcommittee was first constituted in February 2002 to undertake a reference concerning Electronic Democracy. The terms of reference of this wide ranging inquiry are shown in Appendix 6. Whilst the Committee released a discussion paper and 9 discussion sheets during the later half of 2002 the inquiry remained incomplete at the time of the dissolution of the 54th Parliament in November 2002. The Committee of the 55th Parliament re-established the Subcommittee in March 2003. The Members of the Subcommittee during 2003 were -

• Mr Michael Leighton MLA (Chairperson)

• The Hon. Lidia Argondizzo MLC

• Mr Peter Lockwood MLA

• The Hon. Andrew Olexander MLC

• Mr Jude Perera MLA

• Mr Murray Thompson MLA

Secretariat and Consultants

Staffing

The Committee secretariat is located at Level 8, 35 Spring Street Melbourne. The secretariat staff comprises an Executive Officer (Senior Legal Adviser) and a small team of legal and support staff. The staffing of the Committee during 2003 were -

• Mr Andrew Homer, Executive Officer and Senior Legal Adviser;

• Mr Simon Dinsbergs, Assistant Executive Officer;

• Ms Helen Mason, Legal Adviser (Regulations);

• Ms Sonya Caruana, Office Manager.

External consultants

The Committee engaged a number of consultants to undertake specialist work on inquiries before the Committee. During 2003 the relevant consultants were -

• Ms Dominique Saunders, Review pursuant to section 207 of the Equal Opportunity Act 1995;

• Dr David Blumenthal, Review of the Perpetuities and Accumulations Act 1968;

• Mr Michael Magazanik, Review of the Maintenance Act 1965 and the Marriage Act 1958.

Committee Website

During 2003 the Committee continued to maintain a comprehensive Website. The Website has cross links to the Department of Premier and Cabinet site detailing Bills currently before Parliament. There is a further cross reference to the Hansard site giving easy access to Second Reading Speeches. The Committee site also maintains contact details and Membership of counterpart scrutiny committees in the Commonwealth, State and Territory Parliaments. The Committee Website address is www.parliament.vic.gov.au/sarc

The Work of the Committee

The Committee -

• prepares periodical reports called Alert Digests in respect to Bills introduced during Parliamentary sessions;

• reviews all statutory rules and some other statutory instruments;

• seeks clarification from Ministers, departments or government agencies on provisions contained in Bills and statutory rules that concern the Committee within its terms of reference;

• conducts inquiries, including calling for public submissions and conducting public hearings, on Acts and other matters referred to the Committee for investigation;

• provides information to Members, organisations and the public concerning the Committee's functions and activities.

The Committee's work during 2003

The Committee's work during 2003 fell into four main areas -

• Scrutiny of Bills introduced into Parliament;[x]

• Scrutiny of subordinate legislation[xi] (statutory rules) and specified directives[xii] and other instruments (Refer also to the Subordinate Legislation Act 1994, section 21 and the Public Sector Management and Employment Act 1998, section 40(2));

• Review of redundant, ambiguous or unclear legislation. This function is performed pursuant to an ongoing standing instruction to the Committee first vested in the Committee in May 1994 by a Governor in Council Reference. The Reference has been renewed at the commencement of each Parliament and continues during the life of the Parliament unless revoked by Governor in Council Order. (Refer: Governor in Council Order 12 May 1994 - Victorian Government Gazette (G.19), Page 1153, May 1994); and

• Review of other legislation that is referred to the Committee by a resolution of either the Legislative Council or the Legislative Assembly[xiii] or by a Minister through an Order of the Governor in Council published in the Government Gazette[xiv].

Section 17(a) - Scrutiny of Bills

The Committee considered 106 Bills during 2003. Pursuant to section 17(a) the Committee is required to consider any Bill introduced in the Council or the Assembly and report to the Parliament under 7 separate heads of scrutiny numbered sub-paragraphs (i) to (vii). They are -

(i) trespasses unduly upon rights or freedoms;

(ii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers;

iii) makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions;

(iv) unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000;

(v) unduly requires or authorises acts or practices that may have an adverse effect on privacy of health information within the meaning of the Health Records Act 2001;

(vi) inappropriately delegates legislative power;

(vii) insufficiently subjects the exercise of legislative power to parliamentary scrutiny;

A list of the Bills considered by the Committee during 2003 and the tabling dates of the 9 separate Alert Digests in which they are found is shown in Appendix 1. The Bills on which the Committee made a substantive comment based on the respective scrutiny principles is shown in Appendix 2.

Section 17(b) - Scrutiny of Bills - Section 85, Constitution Act 1975

Pursuant to section 17(b) of the Parliamentary Committees Act 2003, the Committee has a 'specific reporting' brief in relation to Bills containing any provision which repeals, alters or varies the jurisdiction of the Supreme Court (section 85 of the Constitution Act 1975). The Committee is required to report to the Parliament on the desirability and appropriateness of such provisions. The Act also requires the Committee to report to the Parliament in circumstances where a Bill does not repeal, alter or vary the jurisdiction of the Supreme Court, but where an issue is nevertheless raised as to the Supreme Court's jurisdiction, as to the full implication of such an issue.

Of the 106 Bills considered in 2003, 19 contained a section 85 Constitution Act 1975 provision, or about 18%. In 2002 of the 96 Bills introduced 14 contained section 85 provisions, about 14%. The Bills in 2003 containing section 85 provisions are listed in Appendix 2.

Ministerial correspondence

Ministerial response turnaround time continues to vary markedly with some Ministers responding to the Committee's correspondence within days. On rare occasions the Committee needs to follow-up requests for further advice by reminder letters. Overall in the course of 2003 the Committee was satisfied with the response time and the level of detail provided by Ministers to the Committee's concerns. There were a number of Bills where Ministers had not responded to the Committee's concerns in the period covered by this report. In some instances Ministerial responses will be included in Alert Digests to be tabled in 2004. A table of Ministerial correspondence is shown in Appendix 3.

Statistical summary of Bills considered by the Committee from 1999 to 2003

Table 1 - Number of Bills considered by the Committee and of those the number having section 85 Constitution Act 1975 provisions[xv].

Table 2 - Number of Alert Digests tabled in Parliament

The results of the Committee's work

The main function of the Committee is to advise the Legislative Council and the Legislative Assembly concerning the use of certain legislative practices in Bills introduced into the Parliament. Those legislative practices are listed in section 17(a)(i) to (vii) of the Parliamentary Committees Act 2003 and provide the basis for the Committee's terms of reference. The clear feedback the Committee receives is that Members are assisted by the Alert Digests tabled in Parliament by the Committee.

Whilst the Committee has no sanction to oppose objectionable legislative practices its reports can be persuasive in advocating modifications to legislation by Ministers. Where no change is made the Committee's work illicits further information from Ministers which are published in a report tabled in the Parliament for the benefit of Members and the public record.

The Committee does not consider it a useful primary benchmark of its success to only point to the number of amendments it has been responsible in securing through its correspondence with Ministers. Rather the Committee considers that the fostering of a 'scrutiny culture' ensures that legislative standards remain high and are only breached when they are explained by the executive and then only in appropriate circumstances. There is strong anecdotal evidence that the work of the Committee is understood and considered by departments and government agencies when considering potentially objectionable legislative provisions.

Problematic areas with Bills

During 2003, and generally over the last few years, a number of persistent problems have been identified in the Committee's scrutiny of Bills, these can be broadly categorised as -

• Retrospective provisions - failure to provide sufficient explanation in either the explanatory memorandum or the Second Reading Speech concerning the necessity or desirability of applying a law retrospectively has traditionally been a problematic area for the Committee. Once again the Committee encountered instances where the retrospective provision was necessary or desirable in all the circumstances but this only became apparent after correspondence with the relevant Minister.

  Acceptable retrospective provisions include, where the amendment provides a benefit or incentive to persons or where the amendment takes the form of a minor statute law revision correcting inadvertent omissions or errors that have no appreciable adverse consequence to persons. Another major acceptable retrospective legislative practice is to validate past actions or appointments made that as a consequence of legal proceedings or otherwise, appear vulnerable to challenge as a result of an unintended deficiency in the original legislation. In these circumstances the amendment seeks to clarify the position that had always thought to have existed but for the deficiency, and declares that actions taken or appointments made were lawfully done or made as though the Act had always existed as ultimately amended.

  During the year the Committee reported on one retrospective provision that may be considered to be a trespass to rights and freedoms. This was in respect to the Fisheries (Further Amendment) Bill. There was however material in the Second Reading Speech concerning the need for such a provision and this was further clarified in the correspondence between the Committee and the Minister.

• Unhelpful explanatory memoranda - failure to provide adequate detail in the explanatory memorandum or the Second Reading Speech as to the intended operation of a clause. As in the previous year the Committee saw a marked improvement in explanatory memoranda attached to Bills. The Committee reported on an instance of an inadequate explanatory memorandum in respect to provisions in the Victorian Curriculum and Assessment Authority (Amendment) Bill (Alert Digest 8 of 2003). In this instance the Minister responded acknowledging the deficiency.

• Unexplained commencement by proclamation clauses - failure to provide adequate explanation for the use of a commencement by proclamation clause rather than the use of a specified commencement day or failure to provide an adequate explanation for a considerably delayed commencement provision. During 2003 there were a number of Bills which had considerably delayed commencement provisions that were not explained in the explanatory memorandum or second reading speech. These were clarified by correspondence with the Minister. During 2003 there were no cases of commencement by proclamation clauses that were unexplained or that were explained and where the Committee considered them to be unjustified.

• Wide delegation provisions - failure to explain delegation provisions which do not clearly define or limit the extent of the delegation to a defined group of persons or persons holding a specified office or rank, or possessing some qualification or attribute. During 2003 there were a number of cases identified where the Committee commented on the use of such provisions and where the Committee wrote to the relevant Ministers to clarify the need to use widely defined delegation powers in a number of Acts. In each instance identified by the Committee the relevant Minister gave further information to the Committee concerning the desirability and need for such wide delegation provisions.

Section 17(d) - Scrutiny of Regulations - Subordinate Legislation Act 1994

Regulation Review Subcommittee

The Regulation Review Subcommittee held 12 meetings and 1 informal meeting during 2003. During those meetings it considered 117 statutory rules made during 2003 and 73 statutory rules made during 2002. Of those rules considered by the Subcommittee and made during 2002, 14 were accompanied by regulation impact statements. Of those statutory rules considered by the Subcommittee and made during 2003, 25 were accompanied by regulation impact statements. Appendix 5 lists all the statutory rules examined by the Subcommittee in 2003. There were a further 29 statutory rules made during 2003 that will be considered by the Subcommittee in 2004.

The Subcommittee did not make any reports to Parliament during 2003. However of the statutory rules examined during 2003, the Subcommittee had concerns with 24 and wrote to responsible Ministers seeking clarification. The Subcommittee received satisfactory responses to the issues raised.

During 2002 the Subcommittee completed the Inquiry into the Subordinate Legislation Act 1994. The Report made various recommendations in respect of the Subordinate Legislation Act 1994. During March 2003 the Government tabled its response to the Report. The Government fully supported 26 recommendations. The Government partly supported 14 recommendations. The Government did not support 15 recommendations. A full analysis of the Government's response may be located in the Annual Review of the Regulations 2002 published in November 2003.

Section 17(e) - Environment Protection Act 1970

The Subcommittee considered two State Environment Protection Policies during 2003.

Section 17(f) - Reports pursuant to the Co-operative Schemes (Administrative Actions) Act 2001

In 2003 the Committee was not required to report to the Parliament on any Act sought to be declared pursuant to the Co-operative Schemes (Administrative Actions) Act 2001.

A declaration of an Act (by Order of the Governor in Council) has the effect of validating certain past administrative actions taken under the declared Act and provides a legal immunity from proceedings for certain past actions. Without such a declaration a recent High Court decision[xvi] has suggested that past administrative actions may be vulnerable to challenge. The immunity limits or varies the jurisdiction of the Supreme Court to hear certain proceedings challenging any relevant past actions.

Section 17(g) - Review of Acts referred to the Committee

Redundant Legislation Subcommittee

The Subcommittee appointed 2 external consultants (see page 5 above) to undertake preliminary research concerning the 3 Acts referred to the Committee for investigation as redundant, ambiguous or unclear legislation.

Committee publications released during 2003

During 2003 the Committee published the following reports and papers in hard copy and on its Website -

• Consolidated Alert Digests Nos. 1 to 9 of 2002, April 2003;

• Annual Review 2002, August 2003;

• Annual Review 2002, Regulations 2002, November 2003;

• Alert Digests 1 to 9 of 2003, April to November 2003;

• Discussion Paper on the inquiry pursuant to section 207 of the Equal Opportunity Act 1995, December 2003;

A chronological listing of Committee reports and publications is shown in Appendix 4.

Reports due in 2004

• Interim Report on the inquiry pursuant to section 207 of the Equal Opportunity Act 1995.

• Reports on Acts referred to the Committee concerning the Perpetuities and Accumulations Act 1968; the Maintenance Act 1965 and the Marriage Act 1958.

Scrutiny of Acts and Regulations Committee
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