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

Chapter 5 The Review Of Other Legislation

5.1 The Reference into Redundant Legislation

On 12 May 1994, the Governor in Council made an Order in Council referring the “Reference for the Review of Redundant Legislation” to the Committee. The Governor in Council referred the matter to the Committee pursuant to section 4F(1)(a)(ii) of the Parliamentary Committees Act 1968. An election was held in March 1996. After the commencement of the 53^rd Parliament, the Governor in Council on 18 June 1996 again referred the Terms of Reference to the Committee.

5.2 Terms of Reference

The Terms of Reference are set out:—

1. The Committee is requested, in conjunction with the Chief Parliamentary Counsel, to inquire into, consider and make recommendations as to:
Acts of Parliament and provisions of Acts of Parliament which are unnecessary or redundant;
legislative instruments made under an Act of Parliament and provisions of legislative instruments made under an Act of Parliament which are unnecessary or redundant.
2. The Committee is requested, in conjunction with the Chief Parliamentary Counsel, to inquire into, consider and make recommendations as to:
Acts of Parliament and provisions of Acts of Parliament which are unclear, ambiguous or should be re-drafted;
legislative instruments made under an Act of Parliament and provisions of legislative instruments made under an Act of Parliament which are unclear, ambiguous or should be re-drafted.
3. In the conduct of this reference, the Committee is requested to pursue the primary objects of reducing the number and complexity of Victorian Acts and legislative instruments, and ensuring that Acts and instruments are clearly expressed in accordance with modern drafting practices.
4. This reference shall continue unless revoked by the Governor in Council.

5.3 The Redundant Legislation Subcommittee

The members of the Redundant Legislation Subcommittee are:—

· The Honourable Maree Luckins MLC, Chair;
· Mr Robert Cameron MP;
· Mr Carlo Carli MP;
· The Honourable Peter Katsambanis MLC;
· Mr Murray Thompson MP.

5.4 Reports and Discussion Papers tabled

The Third Report¹⁶ tabled in December 1997 summarises the progress of the review of redundant legislation. Reference should be made to the Report for further details. The Committee hopes to table its final report on the review of the Carriers and Innkeepers Act 1958 this Autumn Session 1998.

¹⁶ Scrutiny of Acts and Regulations Committee, The Third Report, Redundant and Unclear Legislation, December, 1997.

5.5 Reference — Review of the Right to Silence

On 13 November 1997, the Governor in Council referred to the Committee an additional Reference to Review the Right to Silence.

5.6 Terms of Reference

The terms of reference are set out:—

“Under the powers found in Section 4F(1)(a)(ii) and Section 4F(3) of the Parliamentary Committees Act 1968 the Governor in Council refers the following matters to the Scrutiny of Acts and Regulations Committee—

The issue of right to silence encompasses two categories—the right of a suspect not to answer questions before trial (pre-trial silence) and the right of an accused not to give evidence at trial (at-trial silence).

In 1994 the United Kingdom introduced the Criminal Justice and Public Order Act which provides that the court may draw “whatever inferences appear proper” if the accused fails to mention facts later relied on in his defence when he or she is questioned by police or charged. The court may also draw “whatever inferences appear proper” where an accused refrains from testifying after the trial judge has informed the accused in court that he or she can give evidence and that if he or she does not testify the court can draw whatever inferences appear proper.

Across Australian jurisdictions there are various approaches to the issue of allowing comment where an accused person exercises his or her right to silence. In all jurisdictions there is an absolute right to silence at the police questioning stage of proceedings. In relation to at-trial silence, Commonwealth and New South Wales legislation allows the judge or any other party (other than the prosecutor) to comment on the failure of the defendant to give evidence.

South Australia, Western Australia, the Australian Capital Territory and Tasmania have legislation to the effect that the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution. The Northern Territory and Victoria have legislation which forbids comment on an accused’s silence at trial by either the judge or prosecutor. Queensland’s legislation is silent on the matter of commenting where an accused is silent at trial. Therefore comment can be made by a prosecutor as well as a judge or any other party.

There is a perception that people who are innocent will provide an explanation for their actions and that silence is used as a shield by criminals. This must be viewed in the context of ensuring that persons charged with offences receive a fair trial.

The Committee is requested to inquire into the issue of the right to silence, examining issues including the appropriateness of allowing comment, and the type of comment, that might be made where an accused remains silent. The Committee is asked to consider the desirability of introducing legislation equivalent or similar to the English scheme.

The Committee is requested to make its final report to Parliament by the first day of the 1998 Spring Parliamentary sittings.”

5.7 The Right to Silence Subcommittee

The members of the Right to Silence Subcommittee are:—
· Mr Peter Ryan MLA, Chair;
· Ms Mary Gillett MLA;
· The Honourable Peter Katsambanis MLC;
· Mr Tony Plowman MLA;
· Mr Murray Thompson MLA.
The Committee hopes to table an interim Discussion Paper in approximately June this year and its final report by the first day of the 1998 Spring Parliamentary Sittings.

Last update 13/5/99
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