Scrutiny of Acts and Regulations Committee

Sixth Annual Report,
May 1999

Ordered to be printed
By Authority.  Government Printer for the State of Victoria.
No. 47 Session 1999

1.1 Introduction

By section 4(b) of the Parliamentary Committees Act 1968 (the Act) the Scrutiny of Acts and Regulations Committee (the Committee) is established as one of six Joint House Committees of the Parliament.

This is the Sixth Annual Report the Committee has presented to the Parliament on its statutory functions pursuant to section 4D of the Act.  The report covers the Committee's work for the calendar year 1998.

By way of brief background the Committee was formerly established in November 1992 at the beginning of the 52nd Parliament.  Following the March 1996 State election the Committee was reconstituted with its current membership chaired by Mr Peter Ryan MLA, the member for Gippsland South.

1.2 The Committee's work during 1998

The Committee's work during 1998 fell into four main categories:-

• the scrutiny of all parliamentary legislation introduced either by a Minister or a member into either the Legislative Assembly or the Legislative Council
  (Ref: Parliamentary Committees Act 1968, s.4D).  There were no Private Members Bills during 1998;

• the scrutiny of subordinate legislation such as regulations, statutory rules and instruments (Ref: Subordinate Legislation Act 1994, s.21);

• the responsibility to review redundant, ambiguous or poorly drafted legislation in accordance with a Governor-in-Council Reference (Ref: Governor-in-Council Order 12 May 1994 - Victorian Government Gazette (G.19), page 1153, May 1994); and

• the review of other legislation referred to the Committee by a resolution of either the Legislative Council or the Legislative Assembly or an Order of the Governor-in-Council published in the Government Gazette.  During the year the Committee reviewed aspects of the Crimes Act 1958 relating to the right to silence pursuant to a reference given to it by the Attorney-General (See Chapter 7 - The Review of the Right to Silence)(Ref: Parliamentary Committees Act 1968, s.4F(1)(a)(I) and (ii)).

1.3 This Report

This Annual Report deals mainly with the first of the main functions performed by the Committee listed above, that is the scrutiny of bills.   Reference is made to other work performed by the Committee in summary form in Chapters 4, 5 and 7.  For more detailed explanation of the work of the Committee reference is made to specialist publications produced by the Committee listed in 1.4 below.

1.4 Committee Publications

During 1998 the Committee published the following reports and papers:-

• Alert Digests numbered 1 to 8 of 1998 (consolidated version available in March 1999);
• Fifth Annual Report - May 1998;
• Tenth Report to Parliament on Subordinate Legislation, Annual Report concerning Statutory Rules Series 1997, May 1998;
• Review of the Carriers and Innkeepers Act 1958, May 1998; and
• The Right to Silence: An Examination of the Issues (Discussion Paper), June 1998.

1.5 Committee Membership

Pursuant to section 4B of the Parliamentary Committees Act 1968 the Committee must be composed of not more than 9 (nine) members of whom at least 2 (two) must be members of the Legislative Council and 2 (two) must be members of the Legislative Assembly.

During 1998 the Committee consisted of 9 (nine) members of whom 6 (six) were members of the Legislative Assembly and 3 (three) were members of the Legislative Council.  Of the 9 (nine) members 5 (five) were from the Government parties and

4 (four) from the Opposition.

1.6 The Members

In 1998 the members of the Committee were:-

• Mr Peter Ryan MLA, Chairman;
• Mr Murray Thompson MLA, Deputy Chairman;
• Mr Bob Cameron MLA;
• Mr Carlo Carli MLA;
• Ms Mary Gillett MLA;
• The Honourable Peter Katsambanis MLC;
• The Honourable Maree Luckins MLC;
• The Honourable Don Nardella MLC; and
• Mr Tony Plowman MLA.

1.7 The Subcommittees

By resolution of the Committee there are two standing subcommittees one on Subordinate Legislation and the other on Redundant Legislation.  By special resolution the Committee established a further subcommittee during the year to undertake the inquiry on the Attorney General's reference into the 'Right to Silence' (See Chapter 7 - The Review of the Right to Silence).

1.7.1 Subordinate Legislation Subcommittee

The members of the Subordinate Legislation Subcommittee were:-

• Mr Murray Thompson MLA, Chairman;
• Ms Mary Gillett MLA;
• The Honourable Peter Katsambanis MLC;
• The Honourable Maree Luckins MLC; and
• The Honourable Don Nardella MLC.

1.7.2 Redundant Legislation Subcommittee

The members of the Redundant Legislation Subcommittee were:-

• The Honourable Maree Luckins MLC, Chair;
• Mr Murray Thompson MLA;
• Mr Bob Cameron MLA;
• Mr Carlo Carli MLA; and
• The Honourable Peter Katsambanis MLC.

1.7.3 Right to Silence Subcommittee

The members of the Right to Silence Subcommittee were:-

• Mr Peter Ryan MLA, Chairman;
• Mr Murray Thompson MLA;
• Ms Mary Gillett MLA;
• The Honourable Peter Katsambanis MLC; and
• Mr Tony Plowman MLA.

1.8 Public Hearings

Public hearings were held on August 18 and 19 in relation to the reference from the Attorney-General on the Right to Silence.  Individuals or organisations who made written submissions are shown in Appendix 5 and those giving evidence at the public hearings are listed in Appendix 6.

1.9 Committee's Overseas Missions

During the winter recess (June/July 1998) members of the Committee divided into two groups to visit relevant overseas contacts related to aspects of the Committee's work.   Four members of the Right to Silence Subcommittee travelled to the United Kingdom and the Republic of Ireland to examine the experience in those jurisdictions of legislation effecting aspects of the Right to Silence  (See Chapter 7 - The Review of the Right to Silence).

A second subcommittee of four members visited parliaments in Canada, France, Belgium and the United Kingdom in respect to the review of delegated legislation, the development of uniform legislation and the protection of rights in those jurisdictions (See Chapter 4 - The Scrutiny of Regulations).

1.10 Proposal for Scrutiny of National Schemes of Legislation

1.10.1 The Issue

In its 1997 Annual Report the Committee reported on the Scrutiny of National Schemes of Legislation (Ref: Chapter 1 - Overview, 1.8-1.12).  Legislation implementing national competition policy, increased Commonwealth, State and Territory co-operation and a desire to introduce uniform legislation, for example in respect to aspects of road safety, all mean that National Schemes of Legislation (NSL) are likely to increase.  For years Scrutiny Committees have wrestled with the development of a practical mechanism for scrutiny of these forms of legislation.

The process of scrutiny of legislation and regulations takes many varied forms in the different jurisdictions in Australia.  The fundamental problem is that there are so many layers and players involved in the development and passage of the legislation and its scrutiny, that all attempts at establishing a national uniform system have foundered.

Examples of this type of legislation considered by the Committee in its Alert Digests during 1998 were:-

• Trans-Tasman Mutual Recognition (Victoria) Bill  Digest No. 1
• Gas Pipelines Access (Victoria) Bill  Digest No. 3
• International Transfer of Prisoners (Victoria) Bill  Digest No. 4
• Road Safety (Amendment) Bill  Digest No. 4
• Mutual Recognition (Victoria) Bill  Digest No. 6

1.10.2 A Proposal

Principally through the work of the Committee's Chairman, the Committee has adopted the following proposal.

In essence:-

• A proposal for National Scheme Legislation (NSL) is developed either through an individual Government or a collection of governmental decisions as in the context of the Council of Australian Governments (COAG).  The proposal may involve primary legislation or subordinate legislation.

• The NSL is auspiced through a jurisdiction of the Federal, State or Territory Governments.

• Upon the NSL being introduced to its originating jurisdiction it is marked on its face as being NSL.

• When the NSL is Second Read in the originating jurisdiction it is immediately referred to a Committee for Scrutiny of National Scheme Legislation (CSNSL).

• The CSNSL would be established through Commonwealth legislation and would comprise representatives from each of the 6 (six) States, the 2 (two) Territories and the Commonwealth Government.  The CSNSL would have jurisdiction to scrutinise both primary and subordinate legislation.  Its membership would comprise representation from the Scrutiny Committees or Parliamentary nominees from each of the national jurisdictions with the representative in each instance being the Chair or nominee of the respective Committees or the parliamentary nominee.

• The CSNSL would scrutinise the legislation and prepare a report, an Alert Digest, in a form similar to that prepared by the Victorian Scrutiny of Acts and Regulations Committee under section 4D of the Parliamentary Committees Act 1968.

• The Report would then be tabled within the Parliaments of each of the 9 (nine) jurisdictions and would represent the report to the respective Parliaments upon the NSL pursuant to the participating jurisdictions respective scrutiny legislative regimes, (if any).

• In Victoria's case to enable this to happen the Parliamentary Committees Act 1968, which establishes the Scrutiny of Acts and Regulations Committee, would need to be amended to exclude from its jurisdiction the ability to scrutinise and report on NSL and also to provide for the tabling in the Victorian Parliament of a CSNSL Alert Digest pertaining to NSL.  In a similar vein, Commonwealth and other State and Territory legislative regimes, (if any) would need to be appropriately amended.

• In the event of any future amendment to the NSL, the same process would apply and the amendments scrutinised and reported on by the CSNSL.

1.10.3 Action Required to Implement the Proposal

As referred to above Commonwealth, State and Territory legislation to establish a CSNSL and appropriate amendments to other relevant Commonwealth, State and Territory legislation and the adaptation and/or modification of relevant parliamentary procedures and practices would need to occur.

There will be issues as to the mechanics as to how the Committee meets that can be refined in due course.  For example with the range of electronic media now available there does not seem to be any reason why meetings cannot be convened without participants actually having to travel to a central point.  The mechanics and protocols can be resolved later on.
The CSNSL will require some sort of secretariat which should probably be based in Canberra and funded jointly by the participating jurisdictions.

1.10.4 Benefits of the Proposal

The proposal enables the 9 (nine) jurisdictions to have a capacity to influence the shape of the NSL in accord with scrutiny principles.

The establishment of a CSNSL enables scrutiny to occur contemporaneously - rather than going through the protracted process of being considered by each jurisdiction at different points in time with the inevitable proposals for change coming from different points of view.  Any proposed change is appropriately co-ordinated through the operation of the Committee.
The proposal enables the principles of scrutiny to be observed within each of the national jurisdictions by ensuring that there has been consideration of the NSL on behalf of the respective jurisdictions and that a suitable report is duly tabled in all participating Parliaments.

Last Updated 18/8/99 ©Parliament of Victoria