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

Chapter 2 The Scrutiny Of Bills

2.1 The Scrutiny of Bills - Terms of Reference

The Committee’s Terms of Reference are set out in Section 4D of the Parliamentary Committees Act 1968:—

(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;
(iii) makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions;
(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 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 the issue; and
(c) such functions as are conferred on the Committee by the Subordinate Legislation Act 1994; and
(d) to 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.

2.2 The Scrutiny of Bills

During the course of the year, the Full Committee held thirteen meetings at which all the bills introduced into the Parliament were considered. The Committee did not hold any public hearings in relation to the bills. The Committee considered 110 bills in total.

2.3 Section 85 of the Constitution Act 1975

Of the total number of bills considered (ie,110) 17 or 15.45% related to Section 85 of the Constitution Act 1975. Fourteen bills out of those 17 or 82.3% were considered appropriate on the basis of the Minister’s Second Reading Speech. Or, to put it alternately, 3 bills out of the 17 or 17.64% were considered not to be appropriate on the basis of the Minister’s Second Reading Speech. Of the total number of bills considered, 3 out of 110 or 2.7% were considered not to be appropriate on the basis of the Minister’s Second Reading Speech. To put it alternately, 14 out of 110 or 13.6% were considered appropriate on the basis of the Minister’s Second Reading Speech. The use of section 85 provisions in legislation is discussed in greater detail in Chapter Three.

2.4 The Interpretation of Principles

Section 4D(a)(i) of the Parliamentary Committees Act 1968
Section 4D(a)(i) Trespasses unduly upon rights or freedoms

The Committee considered this principle on three occasions in 1997. The relevant bills are as follows:—

· Audit (Amendment) Bill — Alert Digest Nos.10 & 11 of 1997;
· Accident Compensation (Miscellaneous Amendment) Bill — Alert Digest No.12 of 1997;
· Confiscation Bill — Alert Digest No.12 of 1997.

Audit (Amendment) Bill

In relation to the Audit (Amendment) Bill, there was much discussion over the effect of several provisions in relation to the issues of rights. The Committee was unable to reach unanimous agreement as to its ultimate effect. The Extract from the Proceedings appended to the report of the Committee in Alert Digest 11 show that it divided upon party lines. A motion was moved that “the Committee express its concern with the new audit arrangements as they will impact upon the public right to know, particularly relating to the performance of Government departments.” The motion was defeated by a majority of five Coalition members to three Labor members.

Accident Compensation (Miscellaneous Amendment) Bill

The issues of rights was more straightforward in respect of the Accident Compensation (Miscellaneous Amendment) Bill. One of the objects of the Bill actually stated its intention to abolish certain rights of action at common law. The issue for the Committee was whether the reduction in rights was due or undue. The Committee ultimately referred the matter to Parliament to debate but after considerable discussion also made the following comment:⁶—

“Clause 45 inserts new section 134A which provides that actions for damages are only to be in accordance with the Act from 12 November 1997. This provision effectively abolishes any rights of action for negligence at common law from that date. The Committee was of the view that clause 45 constituted a reduction in rights. Discussion then ensued as to whether the reduction in rights was due or undue. A view was expressed that the reduction was undue because it clearly precluded a seriously injured worker accessing the courts for the purposes of obtaining what he or she regarded as fair and reasonable compensation. The further view was expressed that the scheme of compensation contemplated by the Bill provided fair and just outcomes for seriously injured workers without the necessity for the common law process to be undertaken. The Committee refers the matters to the Parliament to debate.”

The Committee also wrote to the Minister seeking clarification of the effect of various retrospective provisions.

⁶ Alert Digest No.12 of 1997.

Confiscation Bill

The Confiscation Bill was the subject of lengthy discussion by the Committee As to the issue of rights, the Committee commented in relation to the confiscation provisions:⁷—

“Under the existing legislation there is provision for confiscation of property where a conviction has been recorded. Necessarily, the standard of proof required to initiate the confiscation proof is that of beyond reasonable doubt. The civil forfeiture provisions set out in Part 4 contemplate the forfeiture of property through a process which is initiated at the time a serious criminal charge is laid. For the purpose of giving effect to that process, the civil standard of proof, namely, on the balance of probabilities is applied, rather than the criminal standard of beyond reasonable doubt. To that extent, this is a diminution in rights. The Committee refers the question of whether the diminution in rights is due or undue to the Parliament to debate.”

In the course of further examining additional provisions, the Committee commented on the abolition of the privilege against self-incrimination:⁸—

“Part 12 governs examination orders. In particular, clause 99(1) provides that in an examination, a person may not refuse or fail to answer a question that might tend to incriminate the person. It appears that clause 99(1) abolishes the privilege against self-incrimination. The Committee is of the view that the abolition is a diminution in rights. The Committee refers the question of whether the diminution is due or undue to the Parliament to debate.”

⁷ Ibid.

⁸ Ibid.

2.5 Retrospectivity - Section 4D(a)(i)

Arguably, where legislation is altered retrospectively, there may be a trespass on rights and freedoms or a potential breach of section 4D(a)(i). In accordance with its Terms of Reference, the Committee continues to note the retrospective effect of such provisions. This year, there were six bills which contained provisions which operated retrospectively. In those instances where the retrospectivity does not unduly affect rights, the Committee merely noted the effect of the provision and made no further comment. The Bills were:—

· State Taxation Acts (Amendment) Bill — Alert Digest No.3 of 1997;
· Sentencing (Amendment) Bill — Alert Digest No.7 of 1997;
· State Taxation (Amendment) Bill — Alert Digest No.9 of 1997;
· Crimes (Amendment) Bill — Alert Digest No.9 of 1997;
· Legal Practice (Amendment) Bill — Alert Digest No.9 of 1997;
· Business Franchise Fees (Safety Net) Bill — Alert Digest No.12 of 1997.

2.6 Section 4D(a)(ii) of the Parliamentary Committees Act 1968

Section 4D(a)(ii) Makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers

The Committee considered the application of this principle on six occasions during the course of the year. The concerns generally related to the width of delegation provisions. The relevant bills were:—

· Education (Further Amendment) Bill — Alert Digest No.3 of 1997;
· Police and Corrections (Amendment) Bill — Alert Digest No.3 of 1997;
· Gas Industry (Amendment) Bill — Alert Digest No.4 of 1997;
· Urban Land Corporation Bill — Alert Digest No.7 of 1997;
· Residential Tenancies Bill — Alert Digest No.10 of 1997;
· Gas Safety Bill — Alert Digest No.10 of 1997.

Education (Further Amendment) Bill, Police and Corrections (Amendment) Bill, Gas Industry (Amendment) Bill

The Education (Further Amendment) Bill widened the scope of regulations which conferred a discretionary authority on a person or on a class of persons made under the Education Act 1958. The Committee expressed concern in relation to the increased scope of the regulations and sought further detail. The Minister responded with a detailed letter explaining the purpose of the regulations:⁹—

In essence, it is anticipated that the power in the Bill will be used for three purposes, namely -
(i) to quickly remake any existing regulations under the Education Act 1958 (which confer a discretionary authority on the Minister, Secretary or principals) in the event they are challenged on the grounds of an absence of the relevant power which is now being inserted in the Bill,
(ii) to make any new regulations which are required prior to 1 July 1999 and which need to confer a discretionary authority on a person or class of persons, and
(iii) to remake the Education Regulations 1988 (being SR 258 of 1988) all of which will be automatically revoked on 1 July 1999 pursuant to section 5(2)(b) of the Subordinate Legislation Act 1994, and which presently confer a discretionary authority on the Minister, Secretary or principals.
The Education Regulations 1988 vest a number of discretions or powers in the Minister and Secretary, and it anticipated that any new regulations, such as the replacement for the Education (Maintenance Allowance) Regulations 1997 which expire on 1 July 1997, or the remaking of the Education Regulations 1988 which expire on 1 July 1999 should continue to vest discretions and powers in the Minister, Secretary and other departmental officers so as to facilitate the efficient and effective administration of this department and provide the flexibility to cater for circumstances which vary according to local conditions and the needs of schools.(insert footnote)

The Committee wrote to the Minister in respect of the Police and Corrections (Amendment) Bill seeking his advice as to whether the delegation provision can be more simply drafted. The Minister did not respond. The Committee was concerned with the width of the provision in the Gas Industry (Amendment) Bill. The Committee noted the attempt to limit the delegation power by the insertion of the words “to a person approved by the Minister”. Nevertheless, it wrote to the Minister. The Minister did not respond. In relation to the Residential Tenancies Bill the Committee wrote to the Minister seeking his advice as to whether it is possible to specify those persons or classes of persons who are to be recipients of delegated powers. The Minister replied stating that the officers of the Department of Infrastructure would respond directly to the Committee. The Committee wrote in a similar vein to the relevant Minister in respect of the Gas Safety Bill. The Minister responded with a detailed letter explaining the need for flexibility in the legislation and the fact that the delegation power will be used conservatively.

⁹ Alert Digest No.3 of 1997.

2.7 Section 4D(a)(iii) of the Parliamentary Committees Act 1968

Section 4D(a)(iii) Makes rights, freedoms or obligations dependent upon non-reviewable decisions

Of all the bills examined, one contained a provision about which the Committee had concerns in relation to Section 4D(a)(iii). The bill was:—

· Fisheries (Further Amendment) Bill - Alert Digest No.1 of 1997.

Clause 9 of the Bill concerned group recreational fishery licences. The Committee wrote to the Minister seeking his advice as to the reason the Secretary’s decision was not reviewable in this instance. The Minister responded with detailed reasons explaining the frequency and use of such recreational licences. Clause 45 of the Bill provided for the saving of existing licences and permits and the conversion of existing licences. The Committee queried the operation of the provision. The Minister clarified the operation of the provision and agreed to refer the matter to Parliamentary Counsel with a request to ensure that the section would only operate in the manner contemplated. In addition, the Committee also wrote to Chief Parliamentary Counsel seeking her advice as to why the regulation making powers are located in the Schedule of the Act. Chief Parliamentary Counsel explained by way of letter that there are arguments in favour of placing the regulation-making powers together in a Schedule for ease of reference and use.

2.8 Section 4D(a)(iv) of the Parliamentary Committees Act 1968

Section 4D(a)(iv) Inappropriately delegates legislative power

There was only one bill which caused the Committee concern in relation to this principle, the Melbourne City Link (Further Amendment) Bill. The Committee wrote to the Minister in relation to the open-ended commencement provision. The Minister responded by way of letter:¹⁰—

The main reason the Bill does not contain a forced commencement provision is that, as indicated in the Second Reading Speech, a final decision to proceed with the Exhibition Street Extension Project has not yet been taken. Most of the provisions of the Bill will be unnecessary unless that Project proceeds. A forced commencement provision would also make excisions from parkland reservations which would be unnecessary if the Project is not to proceed. The Bill proposes to revoke parts of the Melbourne and Olympic Park reservations so as to make land available for the Exhibition Street Extension Project. In particular, clause 6 proposes excisions from both Melbourne and Olympic Parks. Clause 7 contains a further excision from Olympic Park. These excisions will take effect on the date those clauses come into operation.

Generally, there are good reasons for open-ended commencement provisions as is demonstrated by the Minister’s letter. However, as a matter of principle, the Committee believes it is appropriate to draw these matters to the Minister’s attention. Such explanations ensure that the Parliament is fully informed where there is a technical breach of the Terms of Reference.

¹⁰ Alert Digest No.5 of 1997.

2.9 Section 4D(a)(v) of the Parliamentary Committees Act 1968

Section 4D(a)(v) Insufficiently subjects the exercise of legislative power to Parliamentary scrutiny

The Committee considered possible breaches of this principle on five occasions during 1997. The Committee is concerned to ensure that there is proper scrutiny. The relevant bills were:—

· Health Services (Community Health Centres) Bill - Alert Digest No.2 of 1997;
· National Electricity (Victoria) Bill - Alert Digest No.4 of 1997;
· University of Ballarat (Amendment) Bill - Alert Digest No.7 of 1997;
· University Acts (Further Amendment) Bill - Alert Digest No.7 of 1997;
· Water Acts (Further Amendment) Bill - Alert Digest No.10 of 1997.

Health Services (Community Health Centres) Bill

The Health Services (Community Health Centres) Bill allowed the Minister for Health to appoint members to the boards of community health centres. The Committee wrote to the Minister seeking his advice as to the reason for the exclusion of the Governor in Council in relation to the appointment process. The Committee queried the absence of transitional provisions. As a result of the Committee’s correspondence an amendment was introduced. After the Autumn Sitting was over, the Minister wrote to the Committee:—

As you will be aware, an amendment to the Bill was introduced, along with the Bill, in the Legislative Council. This amendment had the effect that appointments of board members to community health centres will be made by the Governor in Council upon recommendation of the Minister rather than by the Minister alone……….As you will be further aware, the Bill does contain a transitional provision. The provision states that all members of existing boards of management of community health centres will cease to hold that position upon the coming into force of the Bill.
All other transitional arrangements will be written into the guidelines to be promulgated by the Department of Human Services. There was no legal requirement to include any extra transitional arrangements in the legislation. Furthermore, due to their nature and required detail, it was considered that their inclusion in the Health Services Act 1988 would be inappropriate.¹¹

¹¹ Alert Digest No.6 of 1997.

National Electricity (Victoria) Bill

The Bill formed part of a scheme of template legislation. Section 7 of the Bill applied the regulations of South Australia in Victoria. The Committee was concerned that it could not scrutinise the regulations because they are made in another jurisdiction and not available in Victoria. It was also of the view that it would be appropriate to reproduce the South Australian regulations and adopt them to ensure public availability. The Treasurer did not respond.

University of Ballarat (Amendment) Bill, University Acts (Further Amendment) Act

Both these Bills made provision for the Minister to approve university statutes. Previously. Statutes were approved by the Governor in Council. The Committee wrote to the Minister voicing its concern as to the need for scrutiny. The Minister responded to the Committee explaining the changes but acknowledging its concerns. The Minister agreed to arrange for the inclusion of a list of statutes made during each year and information about when they can be seen in the Annual Reports submitted to Parliament by each University so as to ensure access by members.

Water Acts (Further Amendment) Bill

This Bill enabled various application fees to be set by the Minister rather than by regulation. The Committee’s concern was in respect of the need for transparency in the process. The Minister wrote to the Committee explaining the setting of the fees in the context of the Corporate Plan and appropriate publication in a “newspaper circulating generally in the area concerned.”

2.10 General inquiries - an aid to better understanding

In addition to the matters mentioned above, the Committee made general inquiries in relation to a number of bills. Although the matters raised do not always fall strictly within the Terms of Reference, the questions asked reflect the commonsense approach of Committee members. If for example, the application of a provision is not clear, the Committee may take the view that it is in the interests of the Parliament to write to the Minister requesting clarification. The Minister’s response which is inserted into the Alert Digest provides members with information and makes for a more informed audience. Such communication can only be beneficial. The following bills which were the subject of such communications demonstrate the Committee’s broad approach:—

· Fire Authorities (Amendment) Bill - Alert Digest No.3 of 1997 — The Committee wrote to the Minister requesting further information in relation to conflicts of interest;
· Local Government (Further Amendment) Bill — Alert Digest No.3 of 1997 — The Committee wrote to the Minister seeking further information in relation to the establishment of an employment register;
· Taxation Administration Bill — Alert Digest No.3 of 1997 — The Committee wrote to the Minister seeking clarification of the application of a particular clause relating to tax liability in the Bill;
· Miscellaneous Acts (Omnibus No.3) Bill — Alert Digest No.4 of 1997 — The Committee wrote to the Minister in relation to a minor drafting error;
· Infertility Treatment (Amendment) Bill — Alert Digest No.4 of 1997 — The Committee sought advice from the Minister about the function of collecting and keeping of information about children conceived through reproductive technology;
· Gaming Acts (Miscellaneous Amendment) Bill — Alert Digest No.9 of 1997 — The Committee wrote to the Minister seeking his advice as to the effect of certain provisions in the Bill;
· Audit (Amendment) Bill — Alert Digest No.10 of 1997 — The Committee wrote to the Minister seeking information as to the reasons for the repeal of various sections and further explanation of the freedom of information provisions;
· Education (State Schools) Bill — Alert Digest No.12 of 1997 — The Committee wrote to the Minister seeking clarification of the application of the Bill. It was concerned that a literal interpretation of the Bill might provide a basis of application broader than that intended by the Second Reading Speech.

2.11 Ministerial responses - recent trends

The Committee makes the observation that occasionally there seems to be a critical time lag between the date the Committee’s letter is sent and the date the Minister’s response is received. The Committee spends valuable time examining bills and works hard to ensure that every bill is the subject of a report and that the report is tabled in time for the debate. The Committee appreciates that demands on Ministers and Departments can be very high during the Session, nevertheless, as a matter of proper scrutiny, it believes that it is important to receive responses. Such responses form part of the public record and provide valuable information to members and the public alike. When the Committee sends a letter to a Minister it generally stipulates the preferred time of response so that it can be incorporated into the relevant Alert Digest. A response which arrives long after the Session is over or well after the bill is debated thwarts the Committee’s function. Set out below is a table which illustrates the timing and flow of correspondence between the Committee and Ministers during the year.

TABLE OF ALL CORRESPONDENCE BETWEEN THE COMMITTEE AND MINISTERS DURING 1997

Last update 13/5/99
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