Annual Review 2004, March 2005

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The Annual Review

The review provides a summary of the Scrutiny of Acts and Regulations Committee’s (‘the Committee’) work in the scrutiny of Bills and outlines its other statutory reporting and inquiry functions during calendar 2004. There are two useful publications that further describe the Committee’s work and activities during 2004, the Annual Review of Statutory Rules considered in 2004[i] and the cumulative Alert Digest of 2004[ii] concerning the scrutiny of Bills introduced in the Parliament. The Committee’s Alert Digests and all other inquiry reports and discussion papers are available on the Committee’s Website.

The Committee

The Committee is established under the Parliamentary Committees Act 2003[iii] (“the Act”) as one of the 11 Joint House Committees of the Victorian Parliament and is one of 5 Joint House Committees administered by the Department of the Legislative Assembly. The remaining 6 Joint House Committees are administered by the Department of the Legislative Council. The membership of the Committee is drawn from members elected to the Legislative Council and the Legislative Assembly from both government and opposition members.

Brief history of the Committee

The Committee under its current name and functions was established at the commencement on the 52nd Parliament in November 1992. Mr Victor Perton MLA (LP - Doncaster) became the Committee’s first Chairman. 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. From March 2003 the Chair of the Committee in the 55th Parliament is Ms Lily D’Ambrosio MLA (ALP – Mill Park).

Prior to the Committee in its present form, the Parliament did perform a scrutiny of subordinate legislation function through the former Legal and Constitutional Committee. Scrutiny of Bills commenced in March 1993.

Other jurisdictions which have parliamentary committees with a scrutiny of bills function are the Parliaments of the Commonwealth, New South Wales, Queensland and the Australian Capital Territory. All Australian jurisdictions have some form of scrutiny of subordinate legislation (regulations/ordinances).

Committee composition and membership

The Act [iv] 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 55th Parliament consists of nine members. Seven members are from the Legislative Assembly and two members from the Legislative Council. As in the Committees established in the previous Parliaments, five of the nine members are from the government and four from the opposition.

Committee members during 2004

The members of the Committee during 2004 were –

• Ms Lily D’Ambrosio MLA (Chairperson)

• Mr Murray Thompson MLA (Deputy Chairperson)

• The Hon. Lidia Argondizzo MLC

• The Hon. Andrew Brideson MLC*

• Mr Ken Jasper MLA

• Mr Michael Leighton MLA

• Mr Peter Lockwood MLA

• Mr Andrew McIntosh MLA

• The Hon. Andrew Olexander MLC**

• Mr Jude Perera MLA

* From 14 September 2004; ** Up until 14 September 2004.

The Subcommittees

As in previous Parliaments, by resolution in April 2003 the Committee re-established the Regulation Review Subcommittee and the Redundant Legislation Subcommittee. The Committee also established subcommittees to handle the other inquiry work of the Committee.

Regulation Review Subcommittee

Functions

The functions of the Subcommittee are to review statutory rules, as defined by the Subordinate Legislation Act 1994, against specified terms of reference specified in that Act.[v]

Pursuant to other statutory reporting responsibilities the Subcommittee must review other specified subordinate instruments. During the term of the 54th Parliament the Committee completed a major review of the Subordinate Legislation Act 1994. The report on that inquiry was tabled in September 2002. To date no new legislation has been introduced giving effect to the recommendations made by the Committee that have been accepted by the government.

During 2004 the members of the Regulation Review Subcommittee were –

• Mr Peter Lockwood MLA, (Chairperson)

• Ms Lily D’Ambrosio MLA

• The Hon. Andrew Brideson MLC*

• Mr Ken Jasper MLA

• The Hon. Andrew Olexander MLC**

• Mr Jude Perera MLA

* From 4 October 2004; ** Up until 14 September 2004.

Redundant Legislation Subcommittee

Functions

The Subcommittee operates under a long standing Governor in Council reference to; review and make recommendations concerning Acts of Parliament or legislative instruments that are unclear, ambiguous or should be redrafted; reduce the number and complexity of Acts and legislative instruments; and ensure that Acts and instruments are clearly expressed in accordance with modern drafting practices.

The terms of reference of this on-going inquiry are shown in Appendix 6.

The Members of the Redundant Legislation Subcommittee during 2004 were –

• Mr Murray Thompson MLA (Chairperson)

• Ms Lily D’Ambrosio MLA

• The Hon. Lidia Argondizzo MLC

• Mr Michael Leighton MLA

• Mr Andrew McIntosh MLA

Other Subcommittees

By resolution the Committee has established two additional subcommittees. The Equal Opportunity Subcommittee was established to undertake the inquiry pursuant to section 207 of the Equal Opportunity Act 1995 and the E-Democracy Subcommittee to undertake an inquiry concerning electronic media and its future use and implications in respect to participatory democracy.

Equal Opportunity Subcommittee

Function

To undertake a review pursuant to section 207 of the Equal Opportunity Act 1995 in respect to discrimination in the law (Victorian enactments other than Council by-laws or local laws). The terms of reference of the inquiry are shown in Appendix 7.

The Committee resolved that this inquiry should be undertaken by the Subcommittee comprising all Members of the Committee.

eDemocracy Subcommittee

The Subcommittee was first constituted in February 2002 to undertake a reference concerning Electronic Democracy. The terms of reference of this wide ranging inquiry are shown in Appendix 8.

Whilst the Committee released a discussion paper and 9 discussion sheets during the later half of 2002 the inquiry remained incomplete at the time of the dissolution of the 54th Parliament in November 2002.

The Subcommittee expects to complete its work by March 2005 and table a final report in April 2005.

The Committee of the 55th Parliament re-established the Subcommittee in March 2003. The Members of the Subcommittee during 2004 were –

• Mr Michael Leighton MLA (Chairperson)

• The Hon. Lidia Argondizzo MLC

• The Hon. Andrew Brideson MLC*

• Mr Peter Lockwood MLA

• The Hon. Andrew Olexander MLC**

• Mr Jude Perera MLA

• Mr Murray Thompson MLA

* From 4 October 2004, ** Up until 14 September 2004.

E-Democracy Overseas Mission

In furtherance of the objectives of the E-Democracy inquiry the Subcommittee undertook an overseas mission to the United States of America and Canada from 2 to 17 August 2004. The mission members comprised the Chair of the inquiry Mr Michael Leighton MP and Mr Jude Perera MP, Dr Peter Chen (E-Democracy consultant) and the Executive Officer Mr Andrew Homer. The Committee has published a detailed report on the evidence obtained during the mission.[vi]

Secretariat and Consultants

Staffing

The Committee employs a small secretariat staff comprising an Executive Officer (Senior Legal Adviser) a Legal Adviser (Regulations) and two administrative support staff. The staffing of the Committee during 2004 was –

• Mr Andrew Homer, Executive Officer and Senior Legal Adviser;

• Mr Simon Dinsbergs, Assistant Executive Officer;

• Ms Helen Mason, Legal Adviser (Regulations);

• Ms Sonya Caruana, Office Manager.

The Committee secretariat is located at Level 8, 35 Spring Street Melbourne.

External consultants

The Committee engaged a number of consultants to undertake specialist work on inquiries handled by the Committee. During 2004 the consultants engaged by the Committee were –

• Ms Dominique Saunders, Review pursuant to section 207 of the Equal Opportunity Act 1995.

• Dr David Blumenthal, Review of the Perpetuities and Accumulations Act 1968.

• Mr Michael Magazanik, Review of the Maintenance Act 1965 and the Marriage
  Act 1958.

• Dr Peter Chen, Inquiry into Electronic Democracy.

The Work of the Committee

The Committee –

• prepares periodical reports called Alert Digests in respect to Bills introduced during Parliamentary sessions;

• reviews all statutory rules and some other statutory instruments;

• 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;

• conducts inquiries, including calling for public submissions and conducting public hearings, on Acts and other matters referred to the Committee for investigation;

• provides information to Members, organisations and the public concerning the Committee’s functions and activities.

The Committee’s work during 2004

The Committee’s work during 2004 fell into four main areas –

• Scrutiny of Bills introduced into Parliament;[vii]

• Scrutiny of subordinate legislation[viii] (statutory rules) and specified directives[ix] 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 during the life of the Parliament 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[x] or by a Minister through an Order of the Governor in Council published in the Government Gazette[xi].

Section 17(a) – Scrutiny of Bills

The Committee considered 121 Bills during 2004. Pursuant to section 17(a) the Committee is required to consider any Bill introduced in the Council or the Assembly and report to the Parliament under 7 separate heads of scrutiny numbered sub-paragraphs (i) to (vii) –

(i) trespasses unduly upon rights or freedoms;

(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) 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;

(v) 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 2001;

(vi) inappropriately delegates legislative power;

(vii) insufficiently subjects the exercise of legislative power to parliamentary
scrutiny;

A list of the Bills considered by the Committee during 2004 and the tabling dates of the 11 separate Alert Digests in which they are found is shown in Appendix 1. The Bills on which the Committee made a substantive comment based on the respective scrutiny principles is shown in Appendix 2.

Problematic areas with Bills by terms of reference

(i) - trespasses unduly on rights and freedoms.

• Common law rights – during the year the Committee made comments in respect to a number of significant Bills where potential rights and freedoms issues were raised. The most significant of these Bills were the–

  • Major Crime (Investigative Powers) Bill – Alert No. 9

  • Major Crime Legislation (Seizure of Assets) Bill – Alert No. 9

  At time of writing the Committee had received a partial response in respect to the first listed Bill from a Minister administering part of the legislation.

  The Committee examined a number of Bills containing provisions that partially abrogated or modified the privilege against self-incrimination. In 2004 there were no instances where the Committee considered the modification to the privilege was unreasonable having regard to the competing public policy sought to be achieved by the legislation necessitating the modification. In most cases the modification related to the requirement that documents were to be provided by persons notwithstanding their tendency to incriminate the person compelled to produce them. In most cases the documents are required to be kept as business, or other records pursuant to the relevant legislation.

• Retrospective provisions – failure to provide sufficient information 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. Once again the Committee encountered instances where the retrospective provision was necessary or desirable in all the circumstances but this only became apparent after correspondence with the relevant Minister.

  Acceptable retrospective provisions include those that provide a benefit or incentive to persons and where an amendment takes the form of a minor statute law revision correcting inadvertent omissions or errors that have no appreciable adverse consequence to persons or where legislation validates past actions, that as a consequence of legal proceedings or otherwise, appear vulnerable to legal challenge as a result of an unintended deficiency in the original legislation. In such circumstances the amendments may seek to clarify the position that had always thought to have existed but for the deficiency. The retrospective legislation may also declare that actions taken or appointments made, were lawfully done or made as though the Act had always been in the form as ultimately amended.

  During the year the Committee reported on three retrospective provisions that the Committee considered may trespass rights and freedoms. These were in respect to the Domestic Building Contracts (Amendment) Bill, the Parliamentary Superannuation Legislation (Reform) Bill and the Victorian Civil and Administrative Tribunal (Amendment) Bill. In respect to the first two Bills mentioned the relevant Ministers provided answers to the Committee’s request to clarify the intended application of these retrospective laws, respectively in Alert Digests 6 and 11 of 2004. In respect to the last of the Bills listed the Committee has not received an answer at time of publication.

(ii) – makes rights, freedoms or obligations dependant upon insufficiently defined administrative powers.

• Undefined or 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 2004 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. In each instance identified by the Committee the relevant Minister gave further information to the Committee concerning the desirability and need for such wide delegation provisions. The Committee did comment adversely as to the adequacy of an explanatory memorandum concerning two delegation provisions (see above).

(iii) – makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions.

The Committee did not identify any Bills under this term of reference during 2004.

(iv) – 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.

The Victorian Privacy Commissioner made a number of submissions in the course of the year and in each instance the submission was reproduced as an appendix to the relevant Alert Digest. In a number of Bills the Committee drew attention to the Commissioner’s concerns and referred certain issues to the Minister responsible for the Bill.

(v) – 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 2001.

The Committee did not identify any Bills under this term of reference during 2004.

(vi) – inappropriately delegates legislative power.

• Power to legislate by regulation – The Committee commented in respect to two Bills concerning the content of primary legislation that may permit regulations to be made that are more appropriately to be reserved for powers in primary legislation. The Bills were the Monetary Units Bill and the Safety on Public Land Bill.

• 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, a forced commencement day. In 2004, as in the previous year, there were no cases of commencement by proclamation clauses that were unexplained or where it was explained but the Committee considered the provision to be unjustified.

• Long delay in commencement provisions – In 2004 there was one instance in the Sustainable Forests (Timber) Bill where there was provision for a considerably delayed commencement (in excess of two years) and where there was no information in either the explanatory memorandum or second reading speech concerning the necessity to provide such a lengthy delay in commencing the Act. This was later clarified by the Minister as being desirable because of the need for the industry to adapt to the implications of the new licensing regime introduced by the legislation.

(vii) – insufficiently subjects the exercise of legislative power to parliamentary scrutiny.

• Unhelpful explanatory memorandum – Failure to provide adequate detail in the explanatory memorandum or the second reading speech as to the intended operation of a clause. As in the two previous years the Committee saw a marked improvement in explanatory memoranda attached to Bills. The Committee reported in only two instances during 2004 of inadequate explanatory memoranda in respect to the delegation provision in the Occupational Health and Safety Bill (Alert Digest 11 of 2004) and in respect to a delegation provision in the Road Management Bill (Alert Digest 2 of 2004). In both instances the Committee reported the apparent deficiencies to the relevant Minister.

• Parliamentary scrutiny – In respect to the inability for Parliament or the Committee to scrutinise a code of practice the Committee sought further clarification in respect to the provisions in the Drugs, Poisons and Controlled Substances and Therapeutic Goods (Victoria) Acts (Amendment) Bill.

Section 17(b) – Scrutiny of Bills – Section 85, Constitution Act 1975

Pursuant to section 17(b) of the Parliamentary Committees Act 2003, 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). The Committee is required to report to the Parliament on the desirability and appropriateness of such provisions.

Of the 121 Bills considered in 2004, 17 contained a section 85 Constitution Act 1975 provision (14%). In 2003 of the 106 Bills introduced 19 contained section 85 provisions, (18%). The Bills in 2004 containing section 85 provisions are listed in Appendix 2.

Ministerial correspondence related to Bills

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. Overall in the course of 2004 the Committee was once again pleased with the response time and the level of detail provided by Ministers to the Committee’s concerns. There were a number of Bills where Ministers had not responded to the Committee’s concerns in the period covered by this report. In some instances Ministerial responses will be included in the first Alert Digest of 2005. A table of Ministerial correspondence is shown in Appendix 3.

The results of the Committee’s work

The main function of the Committee is to advise the Parliament on the use of certain legislative practices in Bills introduced into the Parliament. Those legislative practices are listed in section 17(a)(i) to (vii) of the Parliamentary Committees Act 2003 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 which are published in a report tabled in the Parliament for the benefit of Members and the public record.

The Committee considers that the fostering of a ‘scrutiny culture’ ensures that legislative standards remain high and are only breached when they are explained by the executive and then only in appropriate circumstances.

There is strong anecdotal evidence to suggest that the work of the Committee is understood and considered by departments and government agencies when considering potentially objectionable legislative provisions.

Statistical summary of Bills considered by the Committee from 2000 to 2004

Table 1 – Number of Bills considered by the Committee and of those the number having
section 85 Constitution Act 1975 provisions.

Table 2 – Number of Alert Digests tabled in Parliament

Section 17(d) – Scrutiny of Regulations – Subordinate Legislation Act 1994

Regulation Review Subcommittee

The Regulation Review Subcommittee held 9 meetings and 1 informal meeting during 2004. During those meetings it considered 170 statutory rules and 2 waste management policies and 1 state environment protection policy. Of those statutory rules considered by the Subcommittee, 34 were accompanied by regulation impact statements. Appendix 5 lists all the statutory rules examined by the Subcommittee in 2004.

The Subcommittee did not make any reports to Parliament during 2004. However of the statutory rules examined during 2004, the Subcommittee had concerns with 36 and wrote to responsible Ministers seeking clarification. The Subcommittee received satisfactory responses to the issues raised.

Section 17(e) – Environment Protection Act 1970

The Regulation Review Subcommittee considered two waste management policies and one state environment protection policy during 2004 under this term of reference.

Section 17(f) – Reports pursuant to the Co-operative Schemes (Administrative Actions) Act 2001

The Committee was not required to report to the Parliament during 2004 on any Act sought to be declared pursuant to the Co-operative Schemes (Administrative Actions) Act 2001.

A declaration of an Act (by Order of the Governor in Council) has the effect of validating certain past administrative actions taken under the declared Act and provides a legal immunity from proceedings for certain past actions. Without such a declaration a recent High Court decision[xii] has suggested that past administrative actions may be vulnerable to challenge. The immunity limits or varies the jurisdiction of the Supreme Court to hear certain proceedings challenging any relevant past actions.

Section 17(g) – Review of Acts referred to the Committee

Redundant Legislation Subcommittee

The Subcommittee’s external consultants concluded their research concerning the 3 Acts referred to the Committee for investigation as redundant, ambiguous or unclear legislation and a report was tabled in the Parliament in November 2004. This report concerned 3 Acts, the Perpetuities and Accumulations Act 1968, the Maintenance Act 1965 and the Marriage Act 1958.

Section 33 – Referrals to Joint Investigatory Committees

During 2004 the Committee had 2 uncompleted Governor in Council referrals before it under this section of the Act, they were the –

• inquiry pursuant to section 207 of the Equal Opportunity Act 1995, and the

• inquiry concerning Electronic Democracy.

Expenditure for the half year ended 31 December 2004 was $226,046 or 49.6% of the full year’s budget.

Committee publications released during 2004

During 2004 the Committee published the following reports and papers in hard copy and also on its Website –

• Consolidated Alert Digests Nos. 1 to 9 of 2003, February 2004.

• Annual Review 2003, May 2004.

• Annual Review 2003, Regulations 2003, May 2004.

• Alert Digests Nos. 1 to 11 of 2004, March to November 2004.

• Discussion Paper concerning Electronic Democracy, November 2004.

• Review of Redundant and Unclear Legislation, Report concerning the Maintenance Act 1965, Marriage Act 1958 and the Perpetuities and Accumulations Act 1968, November 2004.

• Victorian Electronic Democracy, Report on Evidence Obtained in North America – August 2004, November 2004.

• Discrimination in the Law, Progress Report: Summary of Submissions, Statutory Compliance Defences and Human Rights Protections, December 2004.

A chronological listing of all Committee reports and publications dating from the inception of the Committee’s work in 1993 to the present day is provided in Appendix 4.

Reports due to be published during 2005

• Report on the Statute Law Revision Bill 2004, February 2005.

• Alert Digests on Bills introduced during 2005, February to December 2005.

• Interim Report on the inquiry pursuant to section 207 of the Equal Opportunity Act 1995, March 2005.

• Final Report, Victorian Electronic Democracy, April 2005.

• Annual Review 2004, Regulations 2004, May/June 2005.

• Final Report on the inquiry pursuant to section 207 of the Equal Opportunity Act 1995, June/July 2005.

Committee Website

During 2004 the Committee continued to maintain a comprehensive and frequently updated Website. The Website has cross links to the Department of Premier and Cabinet (DPC) site detailing Bills currently before Parliament. The DPC site has a link to the Hansard site giving easy access to Second Reading Speeches.

The Committee site also maintains contact details and Membership of counterpart scrutiny committees in the Commonwealth, State and Territory Parliaments.

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

Scrutiny of Acts and Regulations Committee
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