Fifth Annual Report of the Scrutiny of Acts and Regulations Committee, 1998

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 52^nd Parliament in October 1992. The 52^nd 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 53^rd 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 principally 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.

1.4 The Present Committee

In 1997, the members of the full Committee were:—

· Mr Peter Ryan MLA, Chair;
· 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 Luckins 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.

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 1996.² The Position Paper³ 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 Schemes of Subordinate Legislation;
· Option 1 - the establishment of a National Scrutiny Committee. Its purpose would be to scrutinise legislation when it is in its final (or near final form) or alternatively when it is introduced into the Parliament;
· Option 2 - the amendment by each Parliament of its standing orders or a resolution agreed to by the respective House of Parliament to provide (words to the effect of the following:

Upon the introduction of a Bill implementing an intergovernmental agreement, and a comment being made by the relevant Scrutiny Committee, no further debate or progress is to be made upon the Bill until the Minister responsible for the Bill has reported back to the Parliament on the issues raised.

² Scrutiny of Acts and Regulations Committee, Fourth Annual Report, April, 1997, p.3.
³ The Working Party of Representatives of Scrutiny of Legislation Committee throughout Australia, Position Paper - Scrutiny of National Schemes of Legislation, October, 1996.

1.9 The Premier’s response

The Position Paper was duly circulated to all Premiers in every State in addition to other interested parties. The Committee received a letter from the Honourable Jeff Kennett MP, the Premier of Victoria dated 16 December 1996. The relevant extract is set out:—

I refer to your letter dated 16 September 1996 and to the Position Paper by the Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia entitled Scrutiny of National Schemes of Legislation and dated October 1996.
I note that the Working Party has proposed that either:
· all Australian jurisdictions establish a National Committee for the Scrutiny of NSLs; or
· jurisdictions with responsibility for scrutinising bills achieve a change in their jurisdiction whereby, upon a comment being made on a NSL Bill, no further debate or progress would be made on the Bill until the responsible Minister had reported the comment back to the Parliament; and
· jurisdictions scrutinise bills according to common terms of reference.
Whilst the Victorian Government agrees with the Working Party that it is highly desirable for Australian Parliaments to review effectively the form of proposed NSLs, it cannot support the proposals of the Working Party.
While a national Committee has some advantages, the model proposed would be problematic and difficult to implement. In particular:
· it could impose on State Parliaments greater powers of scrutiny in respect of NSLs than in respect of State Bills;
· it would be an inflexible procedure and not always an appropriate method of review;
· it could fetter the sovereignty of the State; and
· it would not effectively recognise different State concerns and constitutional systems.
Mechanisms for Parliamentary review of NSL Bills should be flexible and able to be adapted to take into account differences between different types of NSLs. They should , however, enable Parliaments to scrutinise NSL Bills only after their introduction into that Parliament. Also, they should not be tabled in Parliament if this could fetter the Executive’s ability to direct policy.
Despite reservations about aspects of the proposals in the Position Paper, I hope that you will continue to examine means to ensure effective Parliamentary scrutiny of NSLs. In this regard, I encourage you to discuss with other State Scrutiny Committees whether Parliaments should adopt appropriate uniform scrutiny procedures to be applied to NSLs.
Any queries about the matters raised in this letter may be raised with Ian Killey of the Legal Branch of the Department of Premier and Cabinet on 9651 5644.
I take this opportunity to thank the members of SARC for their continuing valuable work.

1.10 Response in other jurisdictions

Standing Committee of Attorneys-General - “SCAG”

The Committee was forwarded a copy of a letter from Mr Gary Humphries MLA, the Attorney-General of the Australian Capital Territory to Mr Bill Wood, MLA, Chair of the Standing Committee on Scrutiny of Bills and Subordinate Legislation of the Australian Capital Territory Legislative Assembly. The relevant extract, from the letter dated 22 April 1997 is set out:—

You may be aware that your Committee played a major role in the development of a Position Paper - Scrutiny of National Schemes of Legislation. The Paper was published in October 1997 by the Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia.
The Paper was preceded by a Discussion Paper. I played some part in the preparation of the Discussion Paper when I was Deputy Chair of your Committee. You will appreciate I am a strong supporter of the objectives of the Paper.
When the Paper was published Ms Rosemary Follett MLA, the then Chair of your Committee, wrote to me requesting that I arrange for the Paper to be considered by the Standing Committee of Attorneys-General (SCAG). I understand similar requests were made by the Chairs of Scrutiny Committees in other jurisdictions.
At the SCAG meeting held on 13/14 March 1997, I raised the matter with my interstate colleagues. I am sorry to say I did not receive any support for it to be listed on SCAG’s agenda. In the circumstances I do not see that the matter can be advanced in that forum.
I note that the Paper concludes by inviting suggestions for means of implementing effective scrutiny of national schemes of legislation. On 20 November 1996 Ms Follett tabled a copy of the Paper in the Assembly. It would appear that for the present the best course is that the Paper remain on the Assembly’s table.

1.11 Council of Australian Governments - COAG

It would appear that although the Position Paper has created a spark of interest, there is some considerable way to go before the flames are enthusiastically fanned by the Standing Committee of Attorneys-General (“SCAG”) It was the hope of the Scrutiny Committees that the SCAG would advance the matter further at the meetings of the Council of Australian Governments (“COAG”).
The Committee notes with interest an article published in The Australian newspaper:

The high-profile vehicle established by Bob Hawke for reforming Australia’s ramshackle federal system of government - the Council of Australian Governments - is effectively dead. Although no formal ceremony has been held to bury it -it is a year since its last meeting - and John Howard has no plans to hold another meeting before the year’s end.
On January 31, a top-level meeting took place in Melbourne that is seen by the States as the informal pronouncement by the Howard Government of the death of COAG as a reform vehicle. At the Commonwealth’s Treasury Place offices, the head of the Prime Minister’s Department, Max Moore-Wilton, presented his views on COAG. Moore-Wilton said the Prime Minister believed the meeting he’d had with premiers earlier that month on the High Court Wik native title decisions was the most productive he had experienced. He therefore felt future COAG meetings should only take place when there were matters of fundamental concern - such as Wik and gun control in 1996 - or sufficient urgency to warrant bringing government leaders together………..⁴

At the moment there appears to be little prospect of advancing the matter any further in either forum. The Committee recalls its words in the Fourth Annual Report, which in retrospect have an ominous ring:—

The Scrutiny Committees mutually agreed to refer the matter to the Council of Australian Heads of Government (“COAG”) for its consideration. The Position Paper is but the first step in highlighting the issues related to the scrutiny of national scheme legislation. How the matter develops depends upon COAG’s response and enthusiasm………..
Certainly, there are many issues to be resolved, not the least of which are the practical difficulties associated with coordinated scrutiny by all States and Territories. However, it is hoped that the Position Paper has placed the matter on the agenda for further consideration by COAG, the States and Territories.⁵

⁴ ‘Closed avenue that forces States to reroute’ by Mr John Short, The Australian, 17 June 1997, p.15.
⁵ op.cit., Fourth Annual Report, April, 1997, p.9.

1.12 Further discussion - National Scheme Legislation

At the Sixth Australasian & Pacific Conference on Delegated Legislation and Third Australasian & Pacific Conference on the Scrutiny of Bills held in Adelaide on 16,17 & 18 July 1997, an afternoon session was devoted to discussing National Scheme Legislation. Some of the debate centred on the need to develop a mechanism whereby all the instances which exemplify the deficiencies in the current arrangements for National Scheme Legislation can be gathered together. In addition, there was much general discussion about the continuing difficulties of the project. Eventually, the following resolution was made:—

That following consideration by the Federal Attorney-General, all Chairs of Scrutiny Committees meet to consider further options in relation to the proposals in the Position Paper on Scrutiny of National Scheme Legislation.

At present, the Scrutiny Committees remain in something of a conundrum as to how best further the project. It remains to be seen how it will develop in the future. Much will of course depend upon the willingness of the Executive to meet the Committees halfway to develop a solution.

1.13 The Committee’s Report

The Sixth Australasian & Pacific Conference on Delegated Legislation and Third Australasian & Pacific Conference on the Scrutiny of Bills - 16, 17 & 18 July 1997 - Adelaide

The Conference in Adelaide was a great success and enjoyed immensely by those who attended. The Scrutiny of Acts and Regulations Committee was well represented at the Conference. The following members and staff attended:—

· Mr Peter Ryan MLA, Chair;
· Mr Bob Cameron MLA;
· Mr Carlo Carli MLA;
· Ms Mary Gillett MLA;
· The Honourable Peter Katsambanis MLC;
· The Honourable Don Nardella MLC;
· Mr Tony Plowman MLA;
· Mr Murray Thompson, Deputy Chair;
· Ms Helen Mason, Senior Legal Adviser.

There were representatives from every Scrutiny Committee in Australia. Over the course of three days there were many opportunities, both formal and informal, to discuss the issues and problems of common concern to all Scrutiny Committees. The Papers presented at the Conference were extremely interesting, and on occasions, stimulated lively discussion.
The paper delivered by the Committee Chair, Mr Peter Ryan MLA entitled “Have we done ourselves out of a job?” explored the various practical change which have occurred throughout the life of the Committee and the way in which its work is viewed by Ministers and those advising them. The enthusiastic discussion which followed demonstrated that the paper touched a chord with many of the participants. Much interest was expressed in the way in which the Committee had developed over the four years since its inception.
Of particular interest, was the Paper presented by Mr Bill Woods MLA, Chair of the Scrutiny of Bills and Subordinate Legislation Committee of the Australian Capital Territory entitled “Scrutiny: What a performance! Scrutiny Committees Performance Indicators”. It is difficult to measure the success or otherwise of a Scrutiny Committee for of course the ultimate success may be a piece of legislation devoid of any offensive clauses. So, if a Committee does not report any problems that may indicate tremendous success. However, there are always a number of other factors which come into play. The debate which ensued was most engaging.
Much strength was lent to the Conference by the presence of Dr Janet Hiebert of Canada. Dr Hiebert presented a Paper entitled “Strengthening Parliament’s Role to ‘Right’ Policy: A Canadian Perspective.” Dr Hiebert gave a fascinating overview of the Canadian system in relation to scrutiny. In Canada, there are no Scrutiny Committees but there is a system of judicial review in place. The Charter of Rights has been in operation since 1982. The question of “rights” and how they are interpreted by the Courts was of particular interest to delegates. Indeed, the session following the presentation of Dr Hiebert’s Paper was dedicated to the central issue of “What is a Right?”.
At the conclusion of the Conference, the following resolutions were made:—

1. That this Conference congratulates Professor Pearce and Mr Stephen Argument on revising the major text on delegated legislation in Australia, and invites them to present their book at a future conference of Delegated Legislation Committees.
2. That the Conference express its gratitude to Chief Justice John Doyle for a stimulating and timely address on the role of the judiciary in law making.
3. That this Conference notes that among the topics discussed over the past three days were: -
· The role of Parliament and of Scrutiny Committees in the protection of rights;
· The question, What is a right?
· Party politics and human rights;
· Regulatory Efficiency Statements
· Performance Indicators for Scrutiny Committees
· Regulatory reform and the use of Alternative Compliance Mechanisms;
· Recent developments in delegated legislation;
· A report on Scrutiny of redundant legislation in Victoria;
· The role of Upper Houses;
· Scrutiny of National Schemes of Legislation.
4. The Conference notes the paper presented by Mr Bill Wood, Chairman of the Scrutiny of Bills and Subordinate Legislation Committee, ACT, on Scrutiny Committee Performance Indicators and recommends that a session by dedicated to further discussion on this topic and regulatory performance indicators at the next conference.
5. That the next Conference be held in Sydney.
6. That the Commonwealth and each of the State and Territory Scrutiny Committees be invited to participate in a joint appraisal of the strengths and weaknesses of employing cost benefit and sunset requirements to scrutinise Acts and Regulations and for this purpose, to set up a steering committee to determine how and when this should be carried out and that the appraisal should also review other relevant scrutiny options.
7. That following consideration by the Federal Attorney-General, all Chairs of Scrutiny Committees meet to consider further options in relation to the proposals in the Position Paper on Scrutiny of National Scheme Legislation.

All those who attended the Conference appreciated the wonderful opportunity to exchange ideas with others involved in the scrutiny process. In all, it was most informative and instructive. The Committee is of the view that attendances at such conferences is vital to retain an understanding of current issues and developments. The Seventh Australasian & Pacific Conference on Delegated Legislation and Fourth Australasian & Pacific Conference on the Scrutiny of Bills is scheduled to be hosted by the New South Wales Regulation Review Committee in Sydney in 1999.

1.14 The Office of Chief Parliamentary Counsel - thankyou

The Committee wishes to take this opportunity to record its thanks and appreciation for assistance rendered to it by the Office of Chief Parliamentary Counsel. In particular, it wishes to thank Ms Rowena Armstrong QC, Chief Parliamentary Counsel for her prompt and courteous response to Committee inquiries. During the course of the year the Committee has from time to time raised issues which although not springing directly from the terms of reference, require clarification. Ms Armstrong has been of great assistance kindly providing information in relation to matters such as:—

· Omnibus Bills;
· regulation making powers;
· drafting practices.

Such advice provides guidance and assists the Committee with its deliberations. The Committee looks forward to continuing warm relations with the Office of Chief Parliamentary Counsel.