Annual Review 2001
The Annual Review
This report provides a summary of the Scrutiny of Acts and Regulations Committee’s scrutiny of Bills and other statutory reporting and inquiry work during 2001. There are two useful publications that further describe the Committee’s work and activities during 2001, the Annual Review of Statutory Rules considered in 2001[1] and the cumulative Alert Digests of 2001[2]. All Committee reports and publications are available on the Committee’s Website.
The Scrutiny of Acts and Regulations Committee
The Scrutiny of Acts and Regulations Committee ("the Committee") is established under the Parliamentary Committees Act 1968[3] ("the Act") as one of 5 Joint House Committees[4] of the Victorian Parliament. There are a further 2 specific purpose Committees[5] and a Committee of the Legislative Council[6]. The Committee is one of four administered by the Department of the Legislative Assembly.
Brief History of the Committee
The Committee was established in November 1992 at the beginning of the 52nd Parliament and Mr Victor Perton MLA (LP - Doncaster) became the inaugural Chairman of the Committee. Following the March 1996 State election the Committee was reconstituted for the 53rd Parliament with Mr Peter Ryan MLA (NP - Gippsland South) as Chairman. The 53rd Parliament was dissolved in August 1999. The Committee of the 54th Parliament was reconstituted on 15 December 1999 with Ms Mary Gillett MLA (ALP - Werribee) elected Chair of the Committee.
Committee Composition and Membership
The Act[7] requires that the Committee must be composed of not more than nine members of whom at least two must be members of the Legislative Council and two must be members of the Legislative Assembly.
The Committee of the 54th Parliament consists of nine members. Five members are from the Legislative Assembly and four members are from the Legislative Council. As in the Committees of the 52nd and 53rd Parliaments, five of the nine members are from the Government and four are from the Opposition. In September 2001 The Hon. Maree Luckins MLC (Deputy Chair) and Mr Martin Dixon MLA retired from service on the Committee and in their stead the Hon. Andrew Olexander MLC and The Hon. Robert Maclellan MLA were chosen to serve on the Committee. The Hon. Andrew Olexander was elected Deputy Chair of the Committee.
Members in 2001
The members of the Committee during 2001 were –
- Ms Mary Gillett MLA (ALP – Werribee)[8], Chair;
- The Honourable Maree Luckins MLC (Lib – Waverley), Deputy Chair;*
- The Honourable Andrew Olexander MLC (Lib – Silvan), Deputy Chair; **
- Mrs Liz Beattie MLA (ALP – Tullamarine);
- The Honourable Mark Birrell MLC (Lib – East Yarra);
- Mr Carlo Carli MLA (ALP – Coburg)[9];
- Mr Martin Dixon MLA (Lib – Dromana);*
- The Honourable Robert Maclellan MLA;**
- The Honourable Jenny Mikakos MLC (ALP – Jika Jika)[10];
- Mr Tony Robinson MLA (ALP – Mitcham); and
- The Honourable Chris Strong MLC (Lib – Higinbotham)[11].
* Until September 2001 ** From September 2001
The Subcommittees
By resolution of the Committee, the Regulation Review Subcommittee[12] and the Redundant Legislation Subcommittee were formed in February 2000.
Regulation Review Subcommittee
Functions
The functions of the Subcommittee are to review statutory rules against specified terms of reference set out in the Subordinate Legislation Act 1994. Pursuant to other statutory reporting responsibilities the Subcommittee must review other specified subordinate instruments. The Subcommittee is also currently undertaking a review of the Subordinate Legislation Act 1994.
The members of the Regulation Review Subcommittee during 2001 were –
- The Honourable Jenny Mikakos MLC, Chair;
- Mr Martin Dixon MLA *;
- Ms Mary Gillett MLA;
- The Honourable Maree Luckins MLC *;
- The Honourable Robert Maclellan MLA **
- The Hon. Andrew Olexander MLC **;
- Mr Tony Robinson MLA.
* Until September 2001, ** From September 2001.
The Redundant Legislation Subcommittee
Functions
The Subcommittee operates under a long standing Governor in Council reference to review any unnecessary or redundant Acts of Parliament or legislative instruments, review and make recommendations concerning Acts of Parliament that are unclear, ambiguous or should be redrafted, pursue the primary objective of reducing the number and complexity of Acts and legislative instruments and ensuring that Acts and instruments are clearly expressed in accordance with modern drafting practices.
The members of the Redundant Legislation Subcommittee during 2001 were –
- The Honourable Chris Strong MLC, Chairman;
- Mrs Liz Beattie MLA;
- Mr Carlo Carli MLA;
- Mr Martin Dixon MLA *;
- The Honourable Robert Maclellan MLA **
- The Honourable Andrew Olexander MLC **
- The Honourable Maree Luckins MLC *.
* Until September 2001, ** From September 2001
By further resolutions the Committee has established three additional subcommittees, two in 2000 and one in December 2001. These subcommittees were formed to undertake the inquiry into the Parliamentary Committees Act 1968, to undertake an inquiry to recommend an information privacy code of conduct for Members of the Victorian Parliament and to undertake an inquiry concerning Anzac Day.
The Parliamentary Committees Act Subcommittee
Function
To review the Parliamentary Committees Act 1968 under which Parliamentary Committees are established and function and make recommendations to the Parliament for a clearer and improved Act.
The Member of the Subcommittee during 2001 were –
- Ms Mary Gillett MLA, Chair;
- The Honourable Mark Birrell MLC;
- Mr Martin Dixon MLA *;
- Mr Tony Robinson MLA; and
- The Honourable Chris Strong MLC **
* Until September 2001, ** From September 2001
Information Privacy Subcommittee
Functions
The Subcommittee was established to undertake a Governor in Council reference from the Minister for State and Regional Development to recommend an information privacy code for the Members of the Victorian Parliament.
The Members of the Subcommittee formed to undertake the inquiry are –
- Mr Carlo Carli MLA, Chair;
- Mrs Liz Beattie MLA;
- Mr Martin Dixon MLA *; and
- The Honourable Maree Luckins MLC *;
- The Honourable Robert Macllellan MLA**; and
- The Honourable Chris Strong MLC.**
* Until September 2001, ** From September 2001.
Anzac Day Subcommittee
Functions
The Subcommittee was established in December 2001 to undertake an inquiry during 2002 concerning the Anzac Day Act 1958, and any other relevant laws, and to make recommendations on ways to further enhance the significance of Anzac Day as a national day of commemoration.
The Members of the Subcommittee formed to undertake the inquiry are –
- Ms Mary Gillett MLA (Chair);
- The Honourable Mark Birrell MLC;
- The Honourable Andrew Olexander MLC;
- Ms Liz Beattie MLA; and
- Mr Tony Robinson MLA
Secretariat and Consultants
Staffing
The Committee secretariat is located at 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 2001 were –
- Mr Andrew Homer, Senior Legal Adviser
- Mr Simon Dinsbergs, Assistant Executive Officer
- Ms Jenny Baker, Legal Adviser (Regulations)
- Ms Fiona Lewandowski, Research Officer
- Ms Karla Bastomsky, Legal Adviser (Parliamentary Committees)
- Mr Richard Kings, Office Manager
The Legal Adviser (Redundant Legislation) resigned in May 2001 and the position has not been filed on a full-time basis for the remainder of 2001. Ms Lewandowski acted as the Legal Adviser Redundant Legislation throughout the remainder of 2001. Ms Karla Bastomsky continues work with the Committee on the review of the Parliamentary Committees Act 1968. Ms Bastomsky is on part-time secondment from the Office of the Chief Parliamentary Counsel. In December 2001 the Committee and the Speaker approved the secondment of Mr Andrew Monaghan from Multimedia Victoria (Department of State and Regional Development) as Senior Policy Adviser to assist the Committee with a foreshadowed Governor in Council reference to be announced in February 2002.
External consultants
The Committee engaged a number of consultants to undertake specialist work on inquiries before the Committee. During 2001 these consultants were –
- Mr Rex Deighton-Smith, Review of the Regulatory Impact Assessment process under the Subordinate Legislation Act 1994.
- Mr Mathew Groves, Final Report on the review of the Summary Offences Act 1966.
- Mr James McConvill, Discussion Paper on the Summary Offences Act and Discussion Paper on the Vagrancy Act 1966.
- Mr Nigel Waters and Ms Lindy Smith, Recommendations for a privacy code of conduct for Members of the Victorian Parliament.
Committee Website
The Committee’s Website was substantially revamped and enhanced during 2001 to simplify document retrieval and access. New online services now provide cross links to Department of Premier and Cabinet site which detail on Bills currently before Parliament. There is a further cross reference to the Hansard site giving easy access to Second Reading Speeches. Other new features include contact details and Membership of counterpart scrutiny committees in the Commonwealth, State and Territory Parliaments and in New Zealand.
The Committee Website address is < www.parliament.vic.gov.au/sarc >
The Work 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 2001
The Committee’s work during 2001 fell into five main areas –
- Scrutiny of Bills introduced into Parliament[13];
- Scrutiny of subordinate legislation[14] (statutory rules) and specified directives[15] and other instruments (Refer also to the 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 is referred to the Committee by a resolution of either the Legislative Council or the Legislative Assembly[16] or by a Minister through an Order of the Governor in Council published in the Government Gazette[17].
- Reports to the Parliament pursuant to the Parliamentary Committees Act 1968[18], concerning the intended declaration and proclamation of relevant State Acts for the purposes of the Co-operative Schemes (Administrative Actions) Act 2001.
References from Parliament
During 2001 the Parliament referred the following new inquiry to the Committee –
The Committee inquire into, consider and report by 31 October 2002 on the Anzac Day Act 1958, and any other relevant laws, on ways to further enhance the significance of Anzac Day as a national day of commemoration.
Amendments to the Parliamentary Committees Act 1968
During the year Committees terms of reference was further amended by the Health Records Act 2000 and the Co-operative Schemes (Administrative Actions) Act 2001. These amendments are twofold in nature, they require the Committee to report to the Parliament on any provision in a Bill that have an adverse effect on privacy of health information and secondly they confer functions on the Committee to examine Orders made by the Executive for the purposes of the Co-operative Schemes (Administrative Actions) Scheme Act 2001.
The two amendments respectively insert the following new sub-sections within section 4D of the Act –
4D(a)(iiib) unduly requires or authorises acts or practices that may have an adverse effect on privacy of health information within the meaning of the Health Records Act 2000.
4D(cb) such functions as are conferred on the Committee by the Co-operative Schemes (Administrative Actions) Act 2001.
The Health Records Act 2001 is set to commence operation on 1 March 2002. The amendment made by the Co-operative Schemes (Administrative Actions) Act 2001 commenced operation on 2 August 2001.
Committee and Subcommittee meetings during 2001
The Full Committee met 15 times during the year principally to consider Bills and approve the content of Alert Digests concerning those Bills. Further there have been 17 meetings of the Regulation Review Subcommittee, 6 meetings of the Redundant Legislation Subcommittee and 4 meetings of the Parliamentary Committees Act Subcommittee. The Information Privacy Subcommittee met on 5 occasions during 2001. The Anzac Day Subcommittee was formed in December 2001 and is due to hold its first meeting in February 2002.
Review of Bills
Bills and Acts considered during 2001
The Committee considered 109 Bills during calendar 2001. A list of the Bills considered by the Committee are shown as Appendix 1[19].
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 (section 85 of the Constitution Act 1975 provision). 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 109 Bills considered in 2001, 14 contained a section 85 Constitution Act 1975 provision or just under 13%. In 2000 of the 140 Bills introduced 20 contained section 85 provisions, or just over 14%. The Bills containing section 85 provisions are listed in Appendix 2.
Committee Comments Classified by Terms of Reference
An additional feature of the Committee’s Alert Digests tabled in the Parliament that was introduced in 2000 was an Appendix 2 categorising comments made by the Committee on Bills by the terms of reference as set out in section 4D of the Act. Appendix 2 was again a feature of Alerts tabled throughout 2001.
Alert Digest new features introduced since the commencement of the 54th Parliament
Alert Digests tabled during the year included the following features –
- Notice to Members on the front cover calling for Members participation and/or comments;
- Committee Members photograph page;
- Brief description of the role of the Committee;
- Summary of Committee comments;
- Appendix 2 – Summary of comments classified by terms of reference.
- Appendix 3 – Table of Ministerial Correspondence.
Ministerial Correspondence
Ministerial response turnaround time continues to vary markedly with some Ministers responding to the Committee’s correspondence within days. On rare occasions the Committee needs to follow-up requests for further advice by reminder letters. During 2001 the Committee was satisfied with the response time and the level of detail provided by Ministers to the Committee’s concerns. A table of Ministerial correspondence is shown in Appendix 3.
Statistical summary of Bills considered by the Committee from 1997 to 2001
Table 1 – Number of Bills considered by the Committee and of those the number having section 85 Constitution Act 1975 provisions[20]
Table 2 – Number of Alert Digests tabled in Parliament
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 Alert Digests tabled in Parliament by the Committee.
Whilst the Committee has no sanction to oppose objectionable legislative practices its reports can be persuasive in advocating modifications to legislation by Ministers. Where no change is made the Committee’s work illicits further information from Ministers 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
Over the last few years a number of persistent problems have been identified in the Committee’s scrutiny of Bills, these can be broadly categorised as –
- 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 has traditionally been a problematic area for the Committee. During the year there were no retrospective provisions that were ultimately clarified by the Committee that were reported as constituting an undue trespass to rights and freedoms. Acceptable retrospective provisions include, where the amendment provides a benefit or incentive to persons or where the amendment takes the form of a minor statute law revision correcting inadvertent omissions or errors that have no appreciable adverse consequence to persons. Another major acceptable retrospective legislative practice is to validate past actions or appointments made that as a consequence of legal proceedings or otherwise, appear vulnerable to challenge as a result of an unintended deficiency in the original legislation. In these circumstances the amendment seeks to clarify the position that had always thought to have existed but for the deficiency, and declares that actions taken or appointments made were lawfully done or made as though the Act had always existed as ultimately amended.- 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. During the year the Committee saw a marked improvement in explanatory memoranda attached to bills. Further a new service provided by the Department of Premier and Cabinet of providing explanatory memorandum on-line was welcomed by the Committee;- 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. There were no cases during 2001 where, after inquiry being made or correspondence with the Minister that the Committee considered an inappropriate use of a commencement by proclamation clause;- 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. During 2001 there were a number of cases identified where the Committee commented on the use of such provisions and where the Committee wrote to the relevant Ministers to clarify the need to use widely defined delegation powers in a number of Acts.
Reports concerning the Co-operative Schemes (Administrative Actions) Act 2001
Section 4(2) of the Co-operative Schemes (Administrative Actions) Act 2001 provides that the Governor in Council may by proclamation declare that an Act is a relevant State Act for the purposes of the Co-operative Schemes (Administrative Actions) Act 2001. Prior to such a proclamation section 4(5) of the Act requires the Scrutiny of Acts and Regulations Committee to report to the Attorney-General and the Parliament, whether in all the circumstances such a declaration is appropriate and desirable.
During 2001 the Committee made 2 reports to the Parliament pursuant to section 4D(cb) of the Parliamentary Committees Act 1968, concerning the intended declaration and proclamation of relevant State Acts for the purposes of the Co-operative Schemes (Administrative Actions) Act 2001. The declared Act during 2001 was the National Crimes Authority (State Provisions) Act 1984[21].
A declaration of an Act has the effect of validating certain past administrative actions taken under that declared Act and providing an immunity from proceedings for those past actions. Without such a declaration a recent High Court decision[22] has suggested that such past administrative actions may be vulnerable to legal challenge. The immunity limits or varies the jurisdiction of the Supreme Court to hear certain proceedings challenging those past actions.
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’s 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). In July 2001 the Executive Officer of the Committee presented a progress report to the International Conference on Regulation Reform Management and Scrutiny of Legislation held at Parliament House Sydney.
The Regulation Review Subcommittee
The Regulation Review Subcommittee held 17 meetings during 2001 at which it considered 120 statutory rules made during that year. Thirty statutory rules considered by the Subcommittee were accompanied by regulation impact statements ("RIS"). Appendix 5 lists the statutory rules examined by the Subcommittee in 2001. There were a further 56 statutory rules made during 2001 that the Subcommittee will consider in early 2002.
The Subcommittee did not make any reports to Parliament during 2001. However, of the statutory rules examined during 2001, the Subcommittee had concerns with 23 and wrote to responsible Ministers seeking clarification on each occasion. The Subcommittee has received satisfactory responses to most of the issues it has raised.[23]
The Subcommittee is also conducting the inquiry into the Subordinate Legislation Act 1994. The inquiry involves a comprehensive evaluation of the regulatory system in Victoria. In November 2000 the Subcommittee circulated a detailed Discussion Paper, inviting public submissions and in response received a total of 34 submissions. The time for making written submissions to the Subcommittee has now closed. The Subcommittee held public hearings on 26 and 27 April 2001 and heard evidence from witnesses representing 15 organisations and from 3 individuals.
An important aspect of this inquiry includes a comprehensive analysis of the RIS process. The Subcommittee engaged Mr Rex Deighton-Smith, a former Director of the Office of Regulation Reform and Administrator in the Public Management Service of the OECD, to conduct a review of the quality of RIS’s made during the period 1995 to 1999. The review includes 32 RISs completed during 1999 and a sample from a wide range of policy areas during the other years.
A delegation from the Subcommittee visited and studied regulation-making processes in various jurisdictions of the United States of America in July 2001, including – California; Arizona; Utah; Virginia; Washington DC and Pennsylvania. The delegation included – the Hon. Jenny Mikakos, MLC; the Hon. Maree Luckins, MLC; Mr Martin Dixon, MLA and the Legal Adviser (Regulations), Ms Jenny Baker.
The findings of the delegation from its study visit to the United States of America; the evidence obtained during public hearings and Mr Deighton-Smith’s analysis of RISs will be considered by the Subcommittee in its final report due to be tabled in the Victorian Parliament during the autumn 2002 session.
The Redundant Legislation Subcommittee
During the year the Subcommittee continued its work on the inquiry into the Summary Offences Act 1966. In May 2001 the Subcommittee released a discussion paper and received 67 written submissions. The Subcommittee conducted public hearings in Melbourne on 17 July 2001. The Committee tabled a final report on the Act on 21 November 2001.
The Subcommittee commenced work on the inquiry into the Vagrancy Act 1966 and expects to release a discussion paper in early 2002.
The Information Privacy Subcommittee
The Subcommittee commenced work in April concerning its Governor in Council reference on recommending an information privacy code of conduct for Members of the Victorian Parliament. The Committee engaged specialist consultants to assist it in preparing an interim privacy code. A preliminary report and interim code was approved by the Committee and tabled in the Parliament in May. The Subcommittee held public hearings on 30 August 2001. The Subcommittee further released a paper entitled ‘Frequently Asked Questions and Compliance Checklist’ to assist Members in their consideration on the adoption of an appropriate privacy code. The Subcommittee conducted an in-house seminar for Members on 8 November 2001 at Parliament House. A final report and recommendations is expected to be released in early 2002.
Parliamentary Committees Act Subcommittee
The Subcommittee continued its work throughout the year on reviewing the Parliamentary Committees Act 1968 with the view to recommending a clearer and improved Act to the Parliament. The Subcommittee continued to consider written submissions. Members of the Subcommittee, the Executive Officer and the Legal Adviser (Parliamentary Committees) visited New Zealand in March 2001 to review the operation of the New Zealand Parliamentary committee system. The Subcommittee will continue to receive submissions until early 2002 and expects to table a final report and recommendations before June 2002.
Committee Budgets Travel and Staffing
Committee Expenditure and Budget[24]
2000-2001 Budget Actual 2000-2001 Budget 2001/2002 $473,000 $493,000 $487,311
Committee publications released during 2001
During 2001 the Committee published the following reports and papers in hard copy and on its Website –
- Annual Review 2000, February 2001;
- Alert Digests 1 to 13 of 2001;
- Consolidated Alert Digests Nos. 1 to 11 of 2000, February 2001;
- Annual Review 2000 on Regulations Reviewed in 1999 and 2000, April 2001;
- Discussion Paper on the inquiry into the Summary Offences Act 1966, May 2001;
- Report on an Interim Privacy Code of Conduct for Members of the Victorian Parliament, May 2001;
- Newsletter (No.2) from the Committee, August 2001;
- Frequently Asked Questions and Compliance Checklist concerning the Privacy Code for the Members of the Victorian Parliament, October 2001;
- Final Report on the inquiry into the Summary Offences Act 1966, November 2001.
Forthcoming publications during 2002
Annual Review on Regulations reviewed during 2001, Due April/ May 2002. Final Report on recommendations for an information privacy code for the Members of the Victorian Parliament, Due February/ May 2002. Final Report on the Parliamentary Committees Act 1968 – Due April/May 2002. Discussion Paper on the review of the Vagrancy Act 1966, Due March 2002. Final Report on the review of the Vagrancy Act 1966, Due June 2002. Final Report on the inquiry into the Subordinate Legislation Act 1994.
A chronological listing of all Committee reports and publications is provided in Appendix 4.
Assistance from the Office of Chief Parliamentary Counsel
The Committee continues to have a close working relationship with the Office of Chief Parliamentary Counsel. The Committee thanks the Chief Parliamentary Counsel Mr Eamonn Moran QC for the assistance his Office gave the Committee during the year.
