Annual Review 2005, March 2006

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The Annual Review

This report provides an overview of the activities and functions of the Victorian Parliament’s Scrutiny of Acts and Regulations Committee (‘the Committee’) during the calendar year 2005. There are two publications that further describe the Committee’s work during 2005, the Annual Review of Statutory Rules considered in 2005[i] and the cumulative Alert Digest[ii] concerning the scrutiny of Bills introduced in the Parliament in 2005.

The Committee’s reports and other publications (including this report) are available on the Committee’s Website < www.parliament.vic.gov.au/sarc >.

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. It is one of five Joint House Committees administered by the Department of the Legislative Assembly. The remaining six Joint House Committees are administered by the Department of the Legislative Council.[iv]

Membership of the Committee is drawn from Members of the Legislative Council (the ‘Council’) and the Legislative Assembly (the ‘Assembly’) and from both government and opposition members.

Brief history of the Committee

The Committee under its current name was established at the commencement of the 52 nd 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 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. From March 2003, the Chairperson of the Committee in the 55 th Parliament is Ms Lily D’Ambrosio MLA (ALP – Mill Park ).

Prior to the Committee in its present form, the Parliament performed a scrutiny of subordinate legislation (regulations) function through the now defunct Legal and Constitutional Committee.

The Parliaments of the Commonwealth, New South Wales , Queensland and the Australian Capital Territory have parliamentary committees that perform comparable scrutiny of bills functions. All Australian Parliaments have committees that perform scrutiny of regulations.

Further historical information on the establishment of scrutiny of legislation committees in Australia can be found in the Committee’s submission to the Human Rights Consultative Committee (September 2005), reproduced in Appendix 9.

Committee composition and membership

The Act[v] requires that a Parliamentary Committee comprise not more than nine members, of whom at least two must be members of the Council and two of the Assembly.

The current Committee consists of nine members, seven from the Assembly and two from the Council. As in previous Parliaments, the Committee is composed of five members from the government and four members from the opposition parties.

Committee members during 2005

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

• Mr Jude Perera MLA

The Subcommittees

By resolutions passed in April 2003, the Committee re-established the Regulation Review Subcommittee and the Redundant Legislation Subcommittee. The Committee may establish other subcommittees that may be desirable to undertake specialist inquiry work from time to time.

Regulation Review Subcommittee

The functions of this Subcommittee are to review statutory rules, as defined by the Subordinate Legislation Act 1994, against specified terms of reference specified in that Act.[vi] Pursuant to other statutory reporting responsibilities, the Subcommittee must review other specified subordinate instruments. In September 2002, the Committee completed a comprehensive review of the Subordinate Legislation Act 1994.

During 2005 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

• Mr Jude Perera MLA

Redundant Legislation Subcommittee

The Subcommittee is established because of a long-standing Governor in Council reference (since 1994), which is renewed at the commencement of each Parliament. The reference requires the Committee 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 Committee completed its review of the Maintenance Act 1965, the Marriage Act 1958 and the Perpetuities and Accumulations Act 1968 in November 2004 and did not receive any new references during 2005.

The Members of the Redundant Legislation Subcommittee during 2005 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 established two specific-purpose subcommittees in early 2003. 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

This subcommittee was established to undertake an inquiry pursuant to section 207 of the Equal Opportunity Act 1995 (titled the Discrimination in the Law inquiry) in respect to provisions in Victorian enactments that discriminate or may lead to discrimination. The terms of reference of the inquiry are shown in Appendix 7.

The Committee tabled an Interim Report in June, held public hearings in July and tabled a final report in September. The Committee’s recommendations are reproduced in Appendix 8.

E-Democracy Subcommittee

A subcommittee was 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. The inquiry was incomplete at the time of the dissolution of the 54 th Parliament in November 2002. The Committee of the 55 th Parliament re-established the subcommittee in March 2003 to undertake the inquiry (titled the Victorian Electronic Democracy inquiry), which had been re-referred to the Committee by Order of the Governor in Council with the same terms of reference as in the previous Order.

The Members of the Subcommittee during 2005 were –

• Mr Michael Leighton MLA (Chairperson)

• The Hon. Lidia Argondizzo MLC

• The Hon. Andrew Brideson MLC

• Mr Peter Lockwood MLA

• Mr Jude Perera MLA

• Mr Murray Thompson MLA

Public hearings

The Committee held public hearings in February and tabled a final report in May that made 90 recommendations to the Parliament. The full report, recommendations, transcript of evidence and the government response to the recommendations are reproduced on the Committee’s website. Printed copies of the report are also available from the Committee’s office.

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 secretariat of the Committee during 2005 comprised of –

• 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 2005. The consultants engaged by the Committee were –

• Ms Dominique Saunders, Discrimination in the Law

• Ms Nicole Schlesinger, Discrimination in the Law

• Dr Peter Chen, Victorian Electronic Democracy

The Committee’s work during 2005

The Committee’s work during 2005 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

• Inquiries or the review of Acts that are referred to the Committee by a resolution of either the Council or the 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 113 Bills during 2005. 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 seven separate heads of scrutiny, numbered sub-paragraphs (i) to (vii) –

• trespasses unduly upon rights or freedoms;

• makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers;

• makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions;

• 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;

• 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;

• inappropriately delegates legislative power;

• insufficiently subjects the exercise of legislative power to parliamentary
  scrutiny.

A list of the Bills considered by the Committee during 2005 and the tabling dates of the 13 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.

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 important Bills, where potential rights and freedoms issues were raised. The most significant of these Bills were the –

  • Serious Sex Offenders Monitoring Bill

  • Working with Children Bill

  • Crimes (Homicide) Bill

  • Crimes (Family Violence)(Holding Powers) Bill

The Committee’s examination of the Serious Sex Offenders Monitoring Bill highlighted the occasional operational difficulties faced by the Committee where urgent Bills are expedited through Parliament. In this particular instance, the Bill was introduced in the Assembly on 22 February and passed all remaining stages in the Assembly the next day. The Committee met on 23 February to consider and report on the Bill. The Bill was then introduced and passed in the Council on 24 February. Whilst the Committee was able to prepare a speedy report to Parliament, it was unable to receive submissions from interested persons and organisations. In the circumstances the Committee drew attention to the significant restrictions to rights and freedoms sanctioned by the Bill and noted the reasons provided in the explanatory memorandum and Minister’s second reading speech outlining the public policy necessity for the abridgement of certain rights in all the circumstances.

• 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. In 2005 the Committee encountered one instance in the Accident Compensation (Amendment) Bill, whereby the retrospective provision was not sufficiently explained for the Committee to determine whether it may have an adverse impact on any person. The amendment concerned calculations for compensation for hearing loss. The Minister later clarified the matter to the Committee’s satisfaction.

The State Taxation Acts (General Amendment) Bill contained a retrospective amendment, which the Committee accepted was validating in character seeking to clarify a drafting ambiguity in section 71 of the Duties Act 2000 and backdated the amendment to the commencement of section 71.

Acceptable retrospective provisions include those that may provide a benefit or incentive to persons, or 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 a judicial decision, appear vulnerable to legal challenge as a result of an unintended oversight in the legislation. In such circumstances, the amendments may seek to clarify the position that had always been thought to have existed.

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

The Committee commented on the inclusion of undefined or widely defined delegation powers in a number of Acts during 2005 and wrote to the relevant Ministers for further advice concerning the necessity or desirability for the delegation provisions. Relevant Ministerial correspondence is reproduced in the respective Alert Digests.

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

The Committee noted the provisions in the Racing and Gaming (Police Powers) Bill and sought further clarification from the Minister.

(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 Committee did not identify any Bills under this term of reference during 2005.

(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 2005.

(vi) Inappropriately delegates legislative power.

• 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 2005 there was only one instance of a Bill containing a commencement by proclamation provision, in the Serious Offenders Monitoring Bill (a private members Bill) which did not pass in the originating House (the Council).

Examples of acceptable commencement by proclamation provisions were noted by the Committee in respect to the Channel Deepening (Facilitation) Bill, the National Electricity ( Victoria ) Bill, the Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Bill, the Groundwater (Border Agreement) (Amendment) Bill and the Mines (Aluminium Agreement) (Brown Coal Royalties) Bill. The first four of these Bills concerned agreements between Victoria and the Commonwealth or other State governments where simultaneous commencement in these jurisdictions was desirable for a number of reasons, and in the last named Bill there were contractual arrangements yet to be agreed between the State and a private party (Alcoa) where it was not possible for the parties to definitively state the exact commencement date.

• Long delay in commencement provisions – In 2005 there were three instances in the House Contracts Guarantee (Amendment) Bill, the National Parks (Otways and Other Amendment) Bill and the Firearms (Further Amendment) Bill, where there were considerably delayed commencement provisions in excess of two years. In each case there was no information in either the explanatory memorandum or second reading speech identifying the reason(s) for delayed commencement. The reasons were later clarified through Ministerial correspondence.

During 2005 the Committee issued its first Practice Note (No. 1 of 2005), in which it has adopted the ‘one year’ rule as a guide for delayed commencement. Where a commencement provision tests this rule of thumb and no explanatory information is provided concerning the necessity or desirability for a delayed commencement, the Committee will write to the Minister for further advice. The Practice Note is re-produced in Appendix 10.

• Allowing the Minister to declare items to be a prohibited item – The Commonwealth Games Arrangements (Miscellaneous Amendments) Bill contained a provision (new section 3D) that allowed the Minister to declare any item to be a prohibited item for the purposes of security at a Commonwealth Games venue. The Committee considered that given the limited purpose and duration of the powers it was not an instance of a provision that ‘inappropriately delegates legislative power’.

• Unproclaimed Acts – In Appendix 2 of the Committee’s report to Parliament on the Statute Law Revision Bill, the Committee noted that five Acts remained on the Victorian statutes that were unproclaimed. The oldest of which was the Miners Phthsis Act 1936. This unproclaimed Act was subsequently repealed by the Treasury Legislation (Miscellaneous Amendments) Bill.

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

• 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 2005 the Committee encountered a number of Bills whereby it considered explanatory material was insufficient or inaccurate to describe the exercise of legislative power requested in the Bill. The Committee noted the following Bills in particular –

• Transport Legislation (Safety Investigations) Bill

• Firearms (Further Amendment) Bill

• Veterans Bill

• Vagrancy (Repeal) and Summary Offences (Amendment) Bill

• Parliamentary Administration Bill

A selection of noteworthy Bills in 2005

The Charities (Amendment) Bill increased the monetary limit for an application to the Attorney-General, rather than to the Supreme Court, for the approval of a cypres scheme from $50,000 to $500,000.

The Crimes (Family Violence) (Holding Powers) Bill included provisions that permit police to detain a person in preventative detention for short periods (up to 10 hours) if such detention may prevent family violence or further violence. The detention may be in a police gaol or a prison.

The Crimes (Homicide) Bill abolished the common law partial defence of provocation and recast or clarified a number of defences to homicide.

The Children, Youth and Families Bill replaces the Children and Young Persons Act 1989 including new provisions concerning children in need of therapeutic treatment.

The Commissioner for Law Enforcement Data Security Bill established the office of Commissioner for Law Enforcement Data Security and provided a regime for the monitoring of law enforcement data security management practices.

The Defamation Bill abolishes the distinction between libel and slander, removes the power of juries to assess damages, bars corporations (of a certain size) from commencing defamation proceedings, bars an award of punitive or exemplary damages, imposes a statutory limit to the award of non-economic loss and abridges the time in which an action in defamation may be commenced.

The Geothermal Energy Resources Bill for the first time provides for the regulation of exploration and development of geothermal resources in Victoria .

The Health (Compulsory Testing) Bill sanctions compulsory blood testing of persons who were either deceased or incapable of consenting to a blood test in circumstances in which a service provider may have been exposed to an infectious blood-born disease; for example, in the course of a medical procedure.

The Health Professions Registration Bill introduced a common system for the registration of health practitioners and a common system of investigations and hearings relating to professional performance, conduct and ability to practice as a registered practitioner. The Bill repeals 11 separate enactments related to health practitioners such as the Nurses Act 1993 and the Dental Practice Act 1999.

The Investigative, Enforcement and Police Powers Acts (Amendment) Bill made a number of important changes related to law enforcement use of surveillance devices. The Bill vested in the recently created office of the Special Investigations Monitor oversight of telecommunications interceptions and use of other surveillance devices.

The Justice Legislation (Amendment) Bill (amongst other amendments) amended the Summer Time Act 1972 to remove references to ‘Greenwich Mean Time’. Henceforth the correct reference is to be to ‘Co-ordinated Universal Time’.

The Land Tax Bill made provision for land tax, repealed the current Land Tax Act 1958 and brought the administration and enforcement of land tax under the Taxation Administration Act 2005.

The Parliamentary Administration Bill repealed the Parliamentary Officers Act 1975 and creates a modern framework for the governance and administration of the Parliament. The new Act includes provisions governing Parliamentary Departments, officers, electorate officers and contains principles and officer values governing performance and ethical conduct.

Private Acts – During 2005 two private Acts were amended by the Melbourne College of Divinity (Amendment) Bill[xii] and the Prahran Mechanics Institute (Amendment) Bill[xiii]. In addition the Royal Victorian Institute for the Blind and other Agencies (Merger) Bill related to the merger of a number of charitable entities and the saving of trusts and bequests made to those entities.

Private Members Bills – In 2005 three Private Members Bills were introduced –

• Accident Compensation (Further Amendment) Bill – Hon. Bill Forwood MLC

• Crimes (Contamination of Goods Offences) Bill – Hon. Peter Hall MLC

• Serious Offenders Monitoring Bill – Hon. Richard Della-Riva MLC.

The Radiation Bill introduced a number of offences imposing criminal liability on the basis of negligent conduct, in addition to the usual basis for the finding of criminal liability (conduct committed knowingly or recklessly).

The Road Safety (Further Amendment) Bill amongst a number of other matters allows police to use tyre deflation devices in pursuits, prohibits unauthorised use of a freeway by bicycle riders and provides for their removal where necessary.

The Serious Sex Offenders Monitoring Bill established a legislative scheme requiring persons who have served prison sentences for serious sexual offences and who may pose a serious danger of re-offending to be subject to ongoing supervision in the community. The Bill contained provisions that restrict where an offender may live, the times during which the offender must be at home, places that the offender may not visit, the treatment the offender must be subject to and imposes (amongst other matters) limitations in relation to employment and personal contact.

The Statute Law Revision Bill removed some 209 Acts from the Victorian statute books. For the large part these Acts were spent amending Acts and past Appropriations Acts that had now achieved their purpose and could be safely repealed. Among the repealed principal Acts there were a few of particular interest –

• Australia Acts (Request) Act 1999 – which had never received the Royal Assent following rejection of the proposal in the ‘republic referendum’ of 1999.

• Fisheries (Shark Fishery) Act 1990 – never proclaimed because of later amendments made to the principal Act.

• Constitutional Convention Act 1997 – following a redundant legislation report and recommendations made by the Committee (May 2000).

The Treasury Legislation (Repeal) Bill removed a number of historic but now redundant Acts. Among them were the Mint Act 1958, the Statistics Act 1958 and a number of Unemployment Relief Acts from 1932 to 1939.

The Vagrancy (Repeal) and Summary Offences Bill repealed the Vagrancy Act 1966, which included the offences of soliciting alms, fortune telling and witchcraft. However, the Bill saved a number of offences by re-enacting them (in a revised form) in the Summary Offences Act 1966. The re-enacted offences included obscene exposure, loitering with intent, begging, being disguised with unlawful intent, possessing housebreaking implements and consorting. The Bill, to a substantial extent, gave effect to the Committee’s recommendations tabled in September 2002 concerning the review of those two Acts.

The Veterans Bill establishes the Victorian Veterans Council and the Victorian Veterans Fund (‘the Fund’). The fund will support educational and commemorative activities. The Bill also shifts responsibility for regulating patriotic funds from the Patriotic Funds Council (which is abolished) to the Director of Consumer Affairs Victoria.

The Working with Children Bill introduced a legislative scheme for the issue of assessment notices after appropriate character checks in respect to persons who work with children or apply for ‘child-related work’, and extends to persons who may act in a voluntary capacity and have unsupervised contact with children. The Bill creates offences for employers to engage persons without a current and valid assessment notice, or for a person with a negative notice to apply for ‘child-related work’.

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 113 Bills considered in 2005, nine (8 per cent) contained a section 85 Constitution Act 1975 provision. In 2004, of the 121 Bills introduced, 17 (14 per cent) contained section 85 provisions. The Bills in 2005 containing section 85 provisions are listed in Appendix 2.

Ministerial correspondence related to Bills

Ministerial response turnaround time continues to vary, with some Ministers responding to the Committee’s correspondence within days. On occasions the Committee needs to follow up requests for further advice by courtesy reminder letters. In 2005, the Committee was satisfied with the response time and the level of detail provided by Ministers to the Committee’s concerns.

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 ongoing feedback the Committee receives suggests that Members are assisted by the information provided in the Alert Digests, which often include important extracts from the second reading speech and the explanatory memorandum.

There is frequent anecdotal evidence amongst government legal and legislation officers that the role and functions of the Committee are well understood, and that legislation that may test or infringe the Committee’s terms of reference will require appropriate explanation justifying their inclusion.

Statistical summary of Bills considered by the Committee from 2001 to 2005

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 eight meetings during 2005. During those meetings it considered 181 statutory rules, one waste management policy, three Codes of Practices and one Order in Council. Of those statutory rules considered by the Subcommittee, 31 were accompanied by regulation impact statements. The statutory rules examined by the Subcommittee during 2005 are shown at Appendix 5.

The Subcommittee did not make any reports to Parliament during 2005. However of the statutory rules examined during 2005, the Subcommittee had concerns with 16 and wrote to responsible Ministers seeking clarification. In each case the Subcommittee received satisfactory responses to the issues raised. The Committee intends to release its Annual Report on the review of statutory rules considered during 2005 by mid-2006.

Section 17(e) – Environment Protection Act 1970

The Regulation Review Subcommittee considered one waste management policy during 2005 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 2005 on any Act sought to be declared pursuant to the Co-operative Schemes (Administrative Actions) Act 2001.

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

The Subcommittee concluded its inquiry concerning the Perpetuities and Accumulations Act 1968, the Maintenance Act 1965 and the Marriage Act 1958 referred to the Committee for investigation as redundant, ambiguous or unclear legislation, and tabled its report in November 2004. During 2005 the Committee was not referred any new inquiry under this term of reference.

Section 33 – Referrals to Joint Investigatory Committees

During 2005 the Committee completed a Parliamentary referral* and two Governor in Council referrals in respect to the –

• Statute Law Revision Bill* – tabled February 2005

• Victorian Electronic Democracy inquiry – tabled May 2005

• Discrimination in the Law inquiry – tabled September 2005.

# Expenditure for the half year ended 31 December 2005 was 52.75% of the full year’s budget.

Committee publications released during 2005

During 2005, the Committee published the following reports and papers in print and also on its website –

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

• Consolidated Alert Digests Nos. 1 to 11 of 2004, March 2005.

• Annual Review 2004, March 2005.

• Annual Review 2004, Regulations 2004, May 2005.

• Alert Digests Nos. 1 to 13 of 2005, February - November 2005.

• Electronic Democracy, Final Report, May 2005.

• Discrimination in the Law, Interim Report, June 2005.

• Discrimination in the Law, Final Report, September 2005.

• Submission to the Human Rights Consultation Committee, September 2005.

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

Reports due to be published during 2006

• Alert Digests on Bills introduced during 2006, February to October 2006.

• Annual Review 2005, Regulations 2005, mid-2006.

Committee issues first Practice Note

In October, the Committee issued its first Practice Note, which was intended to be advisory in character. Its main purpose is to inform legislation and legal officers in government agencies and departments of the Committee’s reporting practices and information requirements concerning particular provisions in Bills that test the Committee’s terms of reference. The most frequently encountered areas of concern for the Committee are inadequately explained or unexplained provisions that provide for, (a) retrospective application, (b) wide delegation powers or, (c) commencement by proclamation or delayed commencement.

The Committee also identified inadequate or deficient explanatory memoranda in respect to clauses that invoke the Committee’s terms of reference as an area for future attention.

The Committee’s Practice Note is reproduced in Appendix 10.

Biennial scrutiny conference

The 9th Australasian and Pacific Conference on Delegated Legislation and the 6th Australasian and Pacific Conference on the Scrutiny of Bills was held in the Canberra from 2 to 4 March 2005 . The conference hosts were the Parliament of the Australian Capital Territory and the conference was held in the Legislative Assembly Chamber, and on the final day in the Main Committee Room, Parliament House Canberra. Guest speakers included –

• Dr Helen Watchirs, Human Rights and Discrimination Commissioner, ACT

• Professor George Williams, University of NSW , Chairperson Victorian HRCC

• Mr John McMillan, Commonwealth and ACT Ombudsman

• Mr Harry Evans, Clerk of the Senate

• Dr Fiona Wheeler, Lecturer in Law, ANU

On the motion of the Victorian Chairperson, the conference adopted a resolution that future conferences be styled and titled The Australia–New Zealand Scrutiny of Legislation Conference.

On the day prior to the commencement of the conference, the Chairperson, Deputy Chairperson and the Executive Officer attended the Working Group meeting of Chairs and Deputy Chairs of the Australian Legislative Scrutiny Committees, held at the Commonwealth Parliament, Canberra .

Australian Study of Parliament Group (ASPG) annual conference

This year’s ASPG annual conference was held in Sydney from 6 to 8 October, at Parliament House Sydney. The theme of the conference was Parliament and Accountability in the 21 st Century: The role of Parliamentary Oversight Committees. The Committee was represented by its legal advisers.

Submission to the Human Rights Consultation Committee (HRCC)

In September the Committee made a written submission to the Victorian Human Rights Consultation Committee (the ‘HRCC’)[xv]. The HRCC was established by the Attorney-General in May 2004 and was asked to make recommendations for a suitable framework for human rights in Victoria . The HRCC had its genesis in the Attorney-General’s Justice Statement of May 2004 and the government’s Statement of Intent concerning an appropriate human rights legislative model for Victoria . The preferred models identified by the government were those adopted in New Zealand , (1993)[xvi] and more recently in the Australian Capital Territory (2004).[xvii] Both these jurisdictions provide for human rights principles or laws in the form of an Act of Parliament.

On the proviso that a Charter or Human Rights Act were to be introduced in Victoria and that the Charter or Act was to be modelled on the New Zealand or ACT model (that is, an Act of Parliament) the Committee made the following recommendations to the HRCC relevant to the role a parliamentary committee may play in such a human rights model. The Committee’s recommendations are shown on the last page of Appendix 9.

Final report of the Human Rights Consultation Committee (HRCC)

On 20 December the Attorney-General held a press conference in which he foreshadowed that, although the precise form and content of the proposed human rights laws had not yet been determined, a Charter of Human Rights and Responsibilities would be enacted in Victoria as an Act of the Parliament. The relevant HRCC recommendation is –

Recommendation 16 –The Scrutiny of Acts and Regulations Committee should be conferred with additional terms of reference to consider and report on matters arising under the Charter of Human Rights and Responsibilities, including questions referred to it by either House of Parliament, whether legislation is compatible with the Charter and consideration of any Declarations of Incompatibility made by a court.

The Committee should be able to report on Bills within ten sitting days of their introduction into Parliament or before their enactment, whichever is the later.

The Committee should be provided with sufficient resources to ensure that it can provide an appropriate level of advice and support to Parliament. Where possible, the Committee’s work with respect to human rights should allow for input and submissions from the public.

The Committee should be renamed the ‘Human Rights Scrutiny Committee’.[xviii]

Committee Website

During 2005 the Committee continued to maintain a comprehensive and frequently updated website. The Committee’s website provides links to the Department of Premier and Cabinet (DPC) website, which has comprehensive information concerning Victorian statutes, including the Bills currently before Parliament. The DPC website provides information on the Bills and the accompanying explanatory memoranda in PDF and Word file formats. Further, the DPC site has a link to the Parliamentary Hansard site, giving easy access to the relevant second reading speeches.

The Committee Homepage contains a link to the Victorian E-Democracy Portal, providing background to the Committee’s inquiry relating to Electronic Democracy. The Committee’s website also includes the contact and membership details of counterpart Australasian scrutiny committees.

Scrutiny of Acts and Regulations Committee
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