Scrutiny of Acts and Regulations Committee
Annual Review 2000

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 five Joint House Committees of the Victorian Parliament. This report provides a brief summary of the Committee’s scrutiny of Bills during the spring 1999 session of Parliament and the autumn and spring sessions of 2000.

The Committee was established in November 1992 at the beginning of the 52^nd Parliament and Mr Victor Perton MLA (Lib-Doncaster) became the Committee’s first Chairman. Following the March 1996 State election the Committee was reconstituted for the 53^rd Parliament with Mr Peter Ryan MLA (NP-Gippsland South) as Chairman. The 53^rd Parliament was dissolved in August 1999. The Committee of the 54^th Parliament was reconstituted on 15 December 1999 with Ms Mary Gillett MLA (ALP-Werribee) elected Chair of the Committee.

Pursuant to section 4B of the Act the Committee must be composed of not more than nine members. At least two must be members of the Legislative Council and two must be members of the Legislative Assembly.

The Committee of the 54^th Parliament formed on 15 December 1999 consists of nine members. Five members are from the Legislative Assembly and four members are from the Legislative Council. As in the two previous Committees, five of the nine members are from the Government and four are from the Opposition.

The members of the Committee of the 54^th Parliament are –

• Ms Mary Gillett MLA (ALP – Werribee), Chair;
• The Honourable Maree Luckins MLC (Lib – Waverley), Deputy Chair;
• Mrs Liz Beattie MLA (ALP – Tullamarine);
• The Honourable Mark Birrell MLC (Lib – East Yarra);
• Mr Carlo Carli MLA (ALP – Coburg);
• Mr. Martin Dixon MLA (Lib – Dromana);
• The Honourable Jenny Mikakos MLC (ALP – Jika Jika)^[i];
• Mr Tony Robinson MLA (ALP – Mitcham); and
• The Honourable Chris Strong MLC (Lib – Higinbotham)^[ii].

The Committee secretariat is located on 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. Secretariat staff as at 31 December 2000 were –

Mr Andrew Homer, Senior Legal Adviser

Ms Jenny Baker, Legal Adviser (Regulations)

Ms Marilyn Baldwin, Legal Adviser (Redundant Legislation)

Ms Karla Bastomsky, Legal Adviser (Parliamentary Committees)

Mr Simon Dinsbergs, Assistant Executive Officer

Mr Richard Kings, Office Manager

The Committee’s Website address is – www.parliament.vic.gov.au/sarc

Role of the Committee

The Committee:

• prepares periodical reports called Alert Digests concerning Bills introduced during Parliamentary sessions;

• 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;
• reviews all statutory rules and some other statutory instruments;
• conducts inquiries, including calling for public submissions and conducting public hearings, on matters referred to the Committee for investigation;
• provides information to Members, organisations and the public concerning the Committees functions and activities.

The Committee’s work during 2000

The Committee’s work during 2000 fell into four main categories –

• Scrutiny of Bills^[iii] introduced into Parliament;
• Scrutiny of subordinate legislation^[iv] (statutory rules) and specified directives and other instruments. (Refer: Parliamentary Committee Act 1968, section 4D(c) and (ca), 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 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 are, from time to time, referred to the Committee by a resolution of either the Legislative Council or the Legislative Assembly^[v] or by a Minister through an Order of the Governor in Council published in the Government Gazette^[vi].

References from Parliament

In February 2000 Parliament referred the following inquiries to the Committee –

1. Parliamentary Committees Act 1968. The Committee formed a subcommittee of 4 members to commence a review of the Act with the view of recommending a clearer and improved Act. The Subcommittee worked with Ms Karla Bastomsky seconded from the Office of the Chief Parliamentary Counsel to prepare a draft revised Act. Stage 2 of the review will involve a comparative analysis of other parliamentary committee systems with a view to making recommendations for an improved committee system.
2. Summary Offences Act 1966.
3. Vagrancy Act 1966.

References by Order of Governor in Council

Further, in September 2000 the Committee was referred an inquiry by Order of Governor in Council from the Minister for State and Regional Development to recommend to Parliament a privacy code of conduct for Members of Parliament.

Amendment to the Parliamentary Committees Act 1968

Following the dissolution of the 53^rd Parliament in August 1999 and the ensuing elections in September, the Parliament did not meet until 3 November 1999. The membership of Parliamentary Committees was not finalised until 14 December 1999. By the time the Scrutiny of Acts and Regulations Committee first met on 20 December 1999, sixteen Bills introduced in the spring session of Parliament had received Royal Assent. To accommodate the jurisdictional problem of the Committee reporting on Bills not Acts, an additional term of reference was included by the Parliamentary Committees (Amendment) Act 1999^[vii]. The amendment allowed the Committee to scrutinise Acts passed by the Parliament in the period 3 November 1999 to 31 December 1999. This amendment allowed the Committee to prepare an Alert Digest (No. 1 of 2000) covering those Acts. Alert Digest No. 1 of 2000 was tabled in the Parliament in late February 2000. The amendment provides –

4D The functions of the Scrutiny of Acts and Regulations Committee are –

…

(ba) to consider any Act passed at any time between 3 November 1999 and 31 December 1999 and to report to the Parliament with respect to that Act on any matter referred to in paragraph (a) or (b)

Section 4D(ba) is now a spent provision and it is expected that it may be removed in a Statute Law Revision Bill in the near future. The Acts^[viii] considered by the Committee pursuant to this provision are listed in Appendix 5.

The Act will be amended on the commencement of the Information Privacy Act 2000. That Act will insert a new section 4D(a)(iiia) requiring the Committee 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 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.

It is anticipated that a further amendment will be made to the Act during 2001, similar in nature to that made by the Information Privacy Act 2000^[ix] with the enactment of the Health Records Bill^[x]. That Bill^[xi] also makes consequential amendments to the Subordinate Legislation Act 1994^[xii].

Released during 2000

During 2000 the Committee published the following reports and papers –

• Eleven Alert Digests numbered 1 to 11, tabled during 2000;
• Consolidated Alert Digests Nos. 1 to 6 of 1999, March 2000;
• Report on the Constitution Convention Act 1972, Review of Redundant and Unclear Legislation, May 2000;
• Report on the Statute Law Revision Bill, October 2000;
• Discussion Paper on the inquiry into the Subordinate Legislation Act 1994, November 2000; and
• Draft Bill on the Scrutiny of National Schemes of Legislation, November 2000.

• Final Report on the Summary Offences Act 1966 – Due 30 November 2001.
• Final Report on the Parliamentary Committees Act 1968 – Due 30 November 2001.
• Consolidated Alert Digests Nos. 1 – 11 of 2000 – February 2001.

The Subcommittees of the 54^th Parliament

In February 2000, by resolution of the Committee, two standing subcommittees were formed, one the Regulation Review Subcommittee and the Redundant Legislation Subcommittee^[xiii]. The membership of the Regulation Review and the Redundant Legislation Subcommittees was determined at the first meeting of the Committee in February 2000.

Regulation Review Subcommittee

The members of the Regulation Review Subcommittee of the 54^th Parliament are–

• The Honourable Jenny Mikakos MLC, Chair;
• Mr Martin Dixon MLA;
• Ms Mary Gillett MLA;
• The Honourable Maree Luckins MLC; and
• Mr Tony Robinson MLA.

The Redundant Legislation Subcommittee

The members of the Redundant Legislation Subcommittee of the 54^th Parliament are –

• The Honourable Chris Strong MLC, Chairman;
• Mrs Liz Beattie MLA;
• Mr Carlo Carli MLA;
• Mr Martin Dixon MLA; and
• The Honourable Maree Luckins MLC.

By further resolution the Committee established two further subcommittees during 2000 to undertake the inquiry into the Parliamentary Committees Act 1968, and the second to undertake an inquiry to recommend an information privacy code of conduct for Members of the Victorian Parliament.

The members of these Subcommittees are –

• Ms Mary Gillett MLA, Chair;
• The Honourable Mark Birrell MLC;
• Mr Martin Dixon MLA; and
• Mr Tony Robinson MLA

• Mr Carlo Carli MLA, Chair;
• Mrs Liz Beattie MLA;
• Mr Martin Dixon MLA; and
• The Honourable Maree Luckins MLC.

Committee and Subcommittee meetings during 2000

The Full Committee met 13 times during the year principally to consider the content of Alert Digests. Further there have been 15 meetings of the Regulation Review Subcommittee, 6 meetings of the Redundant Legislation Subcommittee and 4 meetings of the Parliamentary Committees Act Subcommittee. Whilst the Information Privacy Subcommittee was formed during 2000, pending Ministerial advice concerning funding for the inquiry, the Subcommittee did not meet during 2000 to transact any formal business.

Bills and Acts considered during 2000

The Committee considered 140 Bills during calendar 2000. Of these 22 were introduced during November and December of 1999. 16 of those 22 Bills became Acts before 31 December 1999. By an amendment made to the Act by section 4D(ba), the Committee was given power to consider them in a report to the Parliament notwithstanding their Royal Assent.

The Acts considered by the Committee pursuant to section 4D(ba) are listed in Appendix.5.

A full list of Acts and Bills considered by the Committee during calendar 2000 are shown as Appendix 1.

Section 85 of the Constitution Act 1975

Pursuant to section 4D(b) of the Parliamentary Committees Act 1968, 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. The Committee is required to report to the Parliament on 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 that issue.

Of the 140 Bills considered in 2000, 23 contained section 85 (Constitution Act 1975) provisions or just over 16%. In 1999 of the 57 Bills introduced from January to June, 15 contained section 85 provisions, or just over 26%. The year 2000 Bills are listed in Appendix 3 and the relevant 1999 Bills are shown in Appendix 4.

Committee Comments Classified by Terms of Reference

A new feature of the Alert Digests tabled in 2000 was a regular Appendix 2 categorising comments made by the Committee on Bills by the terms of reference as set out in section 4D of the Act.

Alert Digest new features

Alert Digests during the year have included the following new features –

• Notice to Members on front cover calling for comments;
• Members of the Committee photograph page;
• Brief description of the role of the Committee;
• Summary of Committee comments;
• Appendix – Summary of comments classified by terms of reference.

Ministerial Correspondence

Ministerial response turnaround time continues to vary markedly. Some Ministers respond to the Committees concerns within days and in some cases the Committee needs to follow-up requests for further advice by reminder letters. On the whole the Committee remains satisfied with the level of detail provided by Ministers in responding to the Committees concerns. A table of Ministerial correspondence during 2000 listed in Appendix.6.

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 4D(a)(i) to (v) of the Parliamentary Committees Act 1968 and provide the basis for the Committee’s terms of reference. The clear feedback the Committee receives is that Members are assisted by the Committee’s Alert Digests in preparation for their contributions during debate.

Whilst the Committee has no sanction to oppose objectionable legislative practices its reports can seek to persuade modifications to legislation by Ministers or to illicit further information from Ministers on certain legislative practices for the benefit of 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 in exceptional and 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

Notwithstanding the Committees work a number of persistent problems remain in its scrutiny of Bills, these can be broadly categorised as –

• Unexplained 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;
• 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;
• 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;
• 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.

Scrutiny of National Schemes of Legislation

The Committee continued to promote its proposal for the establishment of a national committee for the scrutiny of uniform legislation in appropriate forums. The Committee advocacy of the proposal is principally at the level of the Working Group of Chairs and Deputy Chairs of Scrutiny of Primary and Delegated Legislation Committees of Australia (the Working Group). On 10 November 2000 the Committee hosted a Working Group meeting in the Legislative Council chamber of the Victorian Parliament. The major agenda item was the consideration of a draft bill for the establishment of a national committee which was supported with amendments. Earlier in the year Committee members traveled to Darwin (February) and Brisbane (May) to attend Working Group meetings to progress the proposal.

Regulation Review

The Regulation Review Subcommittee held 15 meetings during 2000 at which it discussed 106 statutory rules made in 1999 and 100 made during 2000. 44 of the 150 statutory rules made in 1999 were examined by the members of the Subcommittee of the 53^rd Parliament. Appendix 7 lists the statutory rules made in 1999 and Appendix 8 lists the rules made in 2000 and examined by the Subcommittee up to December 2000. The Subcommittee did not make any reports to the Parliament during 2000. However, of the statutory rules examined during 2000, the Subcommittee had concerns with 37 and wrote to the responsible Ministers seeking clarification on each occasion.

Some of the typical and problematic issues of concern to the Subcommittee during 2000 included –

• use of legislative instruments outside the scrutiny of the Subcommittee such as guidelines and licences;
• failure to date exception and exemption certificates and failure to specify the reasons for granting exemptions;
• inadequate analysis of competition policy principles;
• use of Premier’s certificates to make statutory rules in substantially the same form in successive years;
• uncertainty amongst department and agency officers as to the extent of consultation and the need to provide consultation certificates when determining whether a regulation imposes an appreciable economic and social burden under sub-section 9(1)(a).

Committee Expenditure and Budget^[xiv]

Travel

In June the Committee visited counterpart scrutiny of primary and delegated legislation committees in the Parliaments of the Commonwealth, Queensland, New South Wales, and the Australian Capital Territory, as part of the Committee’s inquiry into the Subordinate Legislation Act 1994 and its review of interstate counterpart scrutiny committees.

From 14 to 16 July members of the Parliamentary Committees Act Subcommittee attended a weekend conference in Brisbane entitled Parliament 2000: Towards a Modern Committee System organised by the Australasian Study of Parliament Group.

Staffing

Early in the year the Committee recruited two new legal advisers. Ms Jenny Baker joined the Committee in February, from the Law Reform Committee, as the Legal Adviser (Regulations) and Ms Marilyn Baldwin joined the Committee in May from Monash University, as the Legal Adviser (Redundant Legislation).

During the year the Committee participated in the Parliament’s Graduate Recruitment Scheme with a 4 month placement with the Committee for Ms Fiona Lewandowski as a research officer.

The Committee also provided administrative support and guidance for a visiting Monash University Masters student, Ms Anusha Munasinghe from the Sri Lankan Ministry of Justice and Constitutional Affairs. Ms Munasinghe undertook research on the topic of delegated legislation forming part of the assessment for the award of the degree of Mater of Public Policy.