Annual Review 2005, March 2006

Appendix 9 - Submission to the Human Rights Consultation Committee

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The Scrutiny of Acts and Regulations Committee (the ‘Committee’) welcomes the opportunity to make a contribution to the consultation process concerning the important question of whether Victoria should have a Charter of Human Rights (the ‘Charter’).

We believe that the most effective contribution the Committee can make to this consultation process is to consider the role and functions of a parliamentary scrutiny committee in an environment where a Charter of Human Rights (the ‘Charter’) is introduced either in a statutory or constitutional form.

Note: A reference in this submission to ‘Charter’ or ‘Charter rights’ is a reference to human rights laws prescribed in constitutional or statutory form.

Outline of the Committee’s Submission

Part 1 – Parliamentary scrutiny of legislation

Provides an outline of the origins of parliamentary scrutiny of Bills committees in Australia and gives an overview of the practices of scrutiny committees.

Part 2 – The scrutiny process – dynamics and interactions

The Committee makes observations as to the various dynamics or interactions between the Committee, Parliament, the Executive, Judiciary and the community.

Part 3 – Fundamentals for effective parliamentary scrutiny

Describes the conditions that the Committee considers are essential for effective parliamentary scrutiny of legislation.

Part 4 – Human rights scrutiny by a parliamentary committee

Makes observations on how human rights scrutiny of legislation might be conferred on a parliamentary committee were a Charter to be introduced in Victoria .

Part 5 – Recommendations

Makes a number of recommendations on the assumption that a Charter is adopted, either in statutory or constitutional form, and parliamentary scrutiny is a component within the Charter model.

1. Parliamentary Scrutiny of Legislation

We recommend that a parliamentary committee should be established to maintain a watching brief on all bills introduced into the Parliament so as to highlight those provisions which have an impact on persons either by interfering with their rights or subjecting them to the exercise of undue delegations of power. Having been alerted by the committee to these provisions, the Parliament may nevertheless decide to attach greater significance to other countervailing considerations but the committee will have served a useful function in enabling the Parliament to make a proper assessment of the conflicting considerations to be resolved.[1]

…

There is fairly general agreement that scrutinising legislation is one of the most important activities undertaken by the two Houses of Parliament.[2]

…

Overall, the object of scrutinising legislation is to keep in check the tendency of governments to extend their powers, or the liabilities of citizens, too greatly, or for unacceptable purposes, at the expense of individual freedom. The primary role of scrutiny committees is to examine particular aspects of measures brought before Parliament, and to enable the two Houses to deal with them in a well-informed and systematic way.[3]

Origins of scrutiny of Bills

1.1 By way of introduction, it is with some pride that the Committee reflects on the origins of the first Australian parliamentary scrutiny of Bills committee.

On 9 June 1978 the Senate referred to the Standing Committee on Constitutional and Legal Affairs (the Senate Committee) terms of reference for an inquiry as to the desirability and practicality of referring all legislation introduced into the Parliament to a committee of the Senate for the purpose of examining the legislation against certain criteria and reporting to the Senate as to whether the provisions in the Bills, whether by express words or otherwise breached or tested those criteria, such as an undue trespass to personal rights and liberties. Three of the six Senators serving on that Committee were Victorians.[4] The first Chairman of the Senate Scrutiny of Bills Committee was Senator Alan Missen (Vic).

1.2 The Senate Committee tabled its report in November 1978,[5] and after considerable advocacy by its proponents and supporters the first Scrutiny of Bills Committee was established by resolution of the Senate on 19 November 1981 . We note that notwithstanding the reports recommendations that the Scrutiny of Bills Committee be a Joint-House committee, the proponents of the recommendations were unable to persuade the government of the day that the House of Representatives should have representation. From inception the Scrutiny of Bills Committee remains a Senate Standing Committee.

The Victorian Scrutiny of Acts and Regulations Committee

1.3 An early proposal to establish a scrutiny of Bills committee in Victorian was made by the then Legal and Constitutional Committee in 1984.[6] In April 1987 the Legal and Constitutional Committee again recommended the desirability of including a scrutiny of Bills function within the committee’s terms of reference.[7] In a further report three years later, that Committee again recommended the establishment of a scrutiny of Bills function for a parliamentary committee.[8] In May 1992[9] the Hon. Mark Birrell MLC, then Leader of the Opposition in the Legislative Council, introduced a private members Bill to establish a scrutiny of Bills committee based on the Senate model. That Bill did not finish its passage in the Legislative Council before the conclusion of the 1992 autumn sitting of Parliament. Later the Bill lapsed as a result of the dissolution of the Parliament and the ensuing general election in October 1992. The 1992 general election saw a change of government and the in coming Premier of Victoria, Mr Jeff Kennett MP, introduced the Parliamentary Committees (Amendment) Bill 1992 into the Legislative Assembly[10] on 29 October 1992 amending the Parliamentary Committees Act 1968 (now repealed). With the insertion of section 4D in that repealed Act, the Scrutiny of Acts and Regulations Committee was established as an all-party Joint House Committee. The repealed Act’s successor is the Parliamentary Committees Act 2003 (the ‘Act’) which came into force on 10 December 2003 .

1.5 The Scrutiny of Acts and Regulations Committee commenced operation in November 1992 under the chairmanship of Mr Victor Perton MLA from 1992 to 1996 (Lib – Doncaster).[11] The second Chair of the Committee was Mr Peter Ryan MLA from 1996 to 1999 (NP – Gippsland South).[12] In the 54th Parliament the Chair was held by Ms Mary Gillett MLA from 1999 to 2002 (ALP – Werribee). The current Chairperson is Ms Lily D’Ambrosio MLA (ALP – Mill Park) and Mr Murray Thompson MLA (Lib –Sandringham) is Deputy Chairperson.

1.6 From its inception the Committee has been an all-party Joint House Investigatory Committee and has consisted of 9 Members drawn from the Council and the Assembly.[13] Although not prescribed in the Act the custom in all the previous Parliaments has been for the Committee to comprise 5 government and 4 opposition Members.

1.7 The Chairperson of the Committee, and in the absence of the Chairperson the Deputy Chairperson, has a deliberative vote and a further casting vote where there is an equality of votes.

1.8 Since inception the Committee has formed a permanent subcommittee of 5 Members who undertake the Committee’s important work reviewing statutory rules (regulations).[14]

1.9 The work of the Committee is bipartisan in nature, with relatively few divisions taking place. Importantly however, the Act provides that the Committee must include with a report made by it to the Parliament any minority report on behalf of a Member of the Committee if the Member so requests.[15]

Scrutiny of Bills in other jurisdictions

1.10 Four of the other parliamentary jurisdictions have comparable scrutiny of Bills committees. As previously mentioned, in the Commonwealth Parliament the scrutiny of Bills is performed by the Senate Standing Committee for the Scrutiny of Bills. In Queensland it is the Scrutiny of Legislation Committee and in the Australian Capital Territory the relevant committee is the Standing Committee on Legal Affairs. New South Wales introduced terms of reference for a scrutiny of Bills function within its existing Legislation Review Committee in late 2002. There are no comparable scrutiny of Bills committees in South Australia , Western Australia , Tasmania and the Northern Territory.

1.11 All Australian Parliaments have committees that perform parliamentary scrutiny or oversight of regulations. It is acknowledged that the scrutiny of delegated legislation has a considerably longer history and precedes the scrutiny of primary legislation by a considerable period for example in the Senate since 1932 and in Victoria since 1956.

The Committee’s terms of reference

1.12 The Victorian Committee’s scrutiny of Bills function is conferred by terms of reference found in section 17 of the Act. The full terms of reference are shown in Appendix 1.

1.13 The Act confers on the Committee the duty to consider any Bill introduced into the Parliament and to report to the Parliament whether the Bill directly or indirectly tests or invokes any of the criteria in the terms of reference.

These terms of reference can be broadly divided into 4 categories or reporting function. They are –

• Heads 17(a)(i), (ii) and (iii) are broadly concerned with rights and freedoms and rights associated with the exercise of administrative powers and decisions by public officials.

• Heads 17(a)(iv) and (v) concern information privacy rights conferred under specific laws.

• Heads 17(a)(vi) and (vii) deal with significant constitutional principles concerning the separation of powers and the protection of the Parliament’s legislative supremacy.

• Heads 17(b)(i), (ii) and (iii) involve an oversight of provisions that may limit or abridge the jurisdiction of the Supreme Court of Victoria (the ‘Supreme Court’). This reporting function is unique to the Victorian Committee.

The ‘rights or freedoms’ terms of reference

1.14 We note that in considering whether a provision unduly trespasses on rights or freedoms, we have no recourse to a defined or prescribed list of rights as such.[16] However, as in the case of counterpart scrutiny committees we are guided by a number of well accepted common law principles. For example, whether a provision tests or invokes the ‘rights or freedoms’ term of reference requires the Committee to have regard to whether the legislation –

• Has a retrospective and adverse effect on persons,

• Abrogates or abridges the common law privilege against self incrimination or the associated but distinct right to remain silent when questioned about an offence in which the person is allegedly involved.

• Infringes the fundamental entitlement to vote.

• Abridges fundamental principles of natural justice.

• Reverses the onus of proof and require a person to prove their innocence.

• Imposes strict liability on a person when making a particular act or omission an offence.

• Fails to provide fair compensation where there is compulsory acquisition.

• Confers immunity from proceedings without adequate justification.

• Allows search and seizure powers without a prior judicial warrant

• Abrogates legal professional privilege.

• Adversely infringes a person’s privacy.

• Authorises oppressive powers by authorised officers.

• Diminishes Parliament’s ability or capacity to obtain information from the Executive.

An alert to Parliament

1.14 Where a provision raises an issue of rights and freedoms, or test one of the other terms of reference, the Committee will draw Parliament’s attention to the provision in a report known as an Alert Digest.

1.15 Where a provision may limit or abridge the Supreme Court’s jurisdiction the Act requires the Committee to report whether in all the circumstances the provision is appropriate and desirable. However, failure of the Scrutiny Committee to table such a report does not invalidate the provision.

1.16 Where the Committee makes an initial ‘adverse comment’ about a provision in a Bill the practice among Australian scrutiny committees is to use neutral and non-judgemental language in the comments in an Alert Digest tabled in Parliament. The Victorian Committee may typically comment and report in the following manner –

Use of neutral language

1.17 The Committee notes that the use of neutral language (may trespass on rights) in its reports is intended to indicate that the Committee takes no firm or concluded view concerning a provision that appears to invoke or test one of its terms of reference. The use of neutral language signals the Committee’s intention to seek further information concerning the reasons or justification for including the measure.

The word ‘unduly’ in the terms of reference recognises that rights are not absolute and that they may be limited or abridged

1.18 The use of the word ‘unduly’ in the term of reference related to ‘rights and freedoms’ is found in all Australian scrutiny of Bills committees and is a clear indication that a parliamentary scrutiny committee will often be engaged in a careful evaluation and weighing of competing policy interests. For example, the Committee accepts that notwithstanding the general proposition that legislation should be prospective, there may be, in appropriate circumstances sound policy reasons for seeking to apply legislation retrospectively and indeed that in some circumstances retrospective legislation may provide benefits to citizens. A further example in respect to the abridgment of the privilege against self-incrimination is the balancing of competing policy objectives where the Committee appreciates that the efficacy of a regulatory scheme may well depend on the ability of the regulator to obtain information required to be kept or maintained under the scheme and that in these circumstances it may be appropriate or necessary to abridge the privilege provided that there are appropriate use limitations.

1.19 The Committee recognises that rights and freedoms are not absolute and that they may be limited or abridged in demonstrable and justified circumstances. The process of evaluating whether an abridgment to rights and freedoms is reasonable and proportionate to the policy objective is clearly central to the Committee’s scrutiny function. Consideration of whether a provision is a reasonable and proportionate limitation or abridgment of rights will depend on an evaluation of a number of factors. Amongst them are the desirability that the laws abridging accepted rights and freedoms contain appropriate judicial, independent or parliamentary oversight, avenues of redress such as a merits review or an appeals mechanism, compensation provisions or other forms of transparencies, accountabilities and limitations on the exercise of administrative powers.

1.20 Where the Committee forms a tentative view and draws attention to a provision it will commence a dialogue with the Minister to seek further advice or clarification concerning the justification or reasoning for including the provision in the Bill. This continuing dialogue between the Committee and Ministers is one of the fundamental aspects of the Committee’s oversight and reporting work on Bills. The Committee recognises that ultimately having tabled its reports (Alerts) and associated Ministerial responses, it is for the Parliament to decide on the necessity or desirability of the proposed identified measures. We believe that the Committee’s scrutiny and reporting functions mean that Parliament’s deliberation and decision is a more informed one.

Objective scrutiny criteria or principles

1.21 The Committee notes and endorses the view that scrutiny of laws should be based on objective criteria and not on policy evaluation of the proposed law. The tradition of Australian scrutiny of Bills committees involves a process of testing the provisions in a Bill against certain objective standards which are well understood and independent of the provisions or subject matter of the Bill. The scrutiny standards are applied consistently to all Bills that are scrutinised. The standards are chosen and applied so as to be unaffected by political considerations.[17] An example of this process is a provision that is applied retrospectively or that may abrogate the privilege against self-incrimination. In both examples objective scrutiny can test the necessity or desirability for legislation to include such provisions irrespective of the subject matter or policy to be achieved by the legislation and irrespective of party politics. Drawing attention to provisions that test these principles or criteria does not involve a value judgment approving of or criticising the policy to be achieved by the measure. The merits of the policy involved in the content of a Bill is a matter of advocacy by the executive or Member introducing the law and not the domain for deliberation or encroachment by a scrutiny Committee.

1.22 Parliamentary scrutiny does not mean that the Committee has power to prevent the measure from being enacted. The impact and role of the Committee is to be characterised more appropriately as one of alerting, questioning, clarifying and maintaining a constructive dialogue concerning measures that test or invoke certain scrutiny principles.

Publication on the Internet

1.23 The Committee maintains a comprehensive and up to date website which caries all Committee Alert Digests, discussion papers and parliamentary reports. The Committee aims to publish its Alerts on the Internet within 24 hours after tabling.

1.24 For the assistance of the Consultative Committee a recent briefing note on the history, establishment and functions of the Committee is attached as Appendix 2.

2. The Scrutiny Process – Dynamics and Interactions

2.1 The Committee notes that there are a number of dynamics or interactions that emerge as a consequence of the conferral of a scrutiny of legislation function on a parliamentary committee.

Our observation is that once the scrutiny process is triggered by the introduction of a Bill into the Parliament the following dynamics or interactions are enlivened.

2.2 Dialogue with the Parliament – The role of the Committee in reporting on provisions that test the key criteria is to alert the Parliament of the measure(s) and let the Parliament decide on their appropriateness. Comments and Ministerial responses in the Alert Digest are frequently referred to in parliamentary debates and on occasion are referred to in the press. Alert Digests can assist Members in their preparation for a contribution during the consideration of the Bill in the committee stage.

As with the Senate practice, a notice is carried within the Alert Digest inviting any Member to make a contribution to the Committee that is within its terms of reference. Further, the Act empowers the Committee to invite any Member(s) of the Parliament to attend a meeting of the Committee.[18]

2.3 Dialogue with the executive – Where a measure attracts or tests the scrutiny criteria the Committee will seek further advice or clarification from the Minister or Member responsible for the Bill. This dialogue is an opportunity for the executive or Member to clarify or justify, in greater detail the necessity or desirability of including certain provisions in legislation. The response is reported to the Parliament in the next available Alert Digest and can in appropriate cases, shed further light on provisions and generally inform Members and the public on policy objectives to be achieved by the inclusion of certain measures. The publication of Ministerial responses in the Alert Digest may, in appropriate circumstances, assist in the interpretation of the provision in judicial proceedings.[19]

2.4 Dialogue with government agencies – The on-going dialogue between the Committee and the executive also influences government agencies formulating proposed legislation. Departments advising Ministers know that certain provisions will be identified and tested by the oversight process. Departments and agencies understand at an early stage that certain provisions will require careful consideration and appropriate reasoning or justification for including them. It is difficult to say with certainty the effect the mere existence of the Committee has had in fostering a so called ‘scrutiny culture’. However anecdotal evidence suggests the work of the Committee has had an effect on legislative culture. Professor David Feldman appropriately observed that –

‘The process is interactive. It improves the transparency of the reasoning supporting the proposed legislation. It also makes the department give further consideration to any matters which give rise to concern on the part of the Committee’.[20] And ‘Perhaps the most significant way in which a scrutiny committee can be effective is to make departments aware of the matters to which they should have regard when drafting legislation.[21]

2.5 Dialogue with the community – A key aspect of the Committee’s scrutiny of legislation is its ability to engage in and foster public discourse on issues of public importance. The Committee may call for or receive written submissions from interested persons or organisations. This is so, even when there is a limited window of opportunity for scrutiny. In recent times the Committee has received submissions from a number of organisations such as Victoria Legal Aid, the Victorian Bar Council, the Law Institute of Victoria and the Victorian Privacy Commissioner. Where time permits the Committee may also receive oral evidence from experts or interested persons and organisations.[22] The Committee’s scrutiny process provides an opportunity to engage civil society in the legislative process.

2.6 Dialogue with the judiciary – The Committee through its inquiry powers may inform itself in a number of ways including taking evidence from members of the judiciary. It did just that during the Committee’s inquiry into the Right to Silence in 1999. The Committee received written submissions and took oral evidence from members of the Victorian judiciary. The other, perhaps less referred to interaction, is that section 35(iv) of the Interpretation of Legislation Act 1984 provides that the judiciary may have recourse, in appropriate circumstances, to the contents of parliamentary reports when considering the interpretation of legislation.

3. Fundamentals for Effective Parliamentary Scrutiny

Members

3.1 The Committee notes that Australian scrutiny committees vary a great deal in their mode of establishment and their membership. For example in Victoria parliamentary committees are established under an Act of Parliament whereas the Senate provides for the established of its scrutiny committee under Standing Orders.[23] Queensland and the Australian Capital Territory are uni-cameral Parliaments and appoint their members from the Legislative Assembly. In Victoria and New South Wales Members are drawn from both Houses of Parliament whereas the Commonwealth Parliament’s scrutiny committee is drawn from the Senate only. The Parliament’s of Western Australia , South Australia , Tasmania and the Northern Territory have no counterpart committees with scrutiny of Bills functions. As previously mentioned, all Australian jurisdictions have committees with a scrutiny of delegated legislation (regulations) function.

3.2 The Committee considers that in a bi-cameral parliament membership of a legislative scrutiny or oversight committee should, in principle, be drawn from both Houses, and that the enabling Act or Standing Orders should require a minimum number of Members from each House. The Committee is of the opinion that no meeting of a scrutiny committee should be comprised of Members from only the one House. The Committee made these points in its recommendation in the recent review of the Victorian Parliamentary Committee system in 2002.[24] It is fundamental to the legitimacy and respect the Committee must command in Parliament and outside it that a parliamentary oversight committee have all-party representation. The Committee is of the opinion that a Joint-House all-party scrutiny committee will ensure that participation, responsibility and ownership of the committee’s scrutiny functions remain with the Parliament as a whole.

In respect to the composition of a parliamentary scrutiny committee the Committee notes this extract from the Senate’s report on the proposal to establish a scrutiny of bills committee.

To this end we considered a variety of committee structures before concluding that a joint committee would be the most appropriate vehicle. A joint committee would enable consideration of bills as soon as they are introduced into the Parliament, regardless of the House into which they are first introduced, and it would enable members of both Houses to properly fulfil their obligations in respect of legislative scrutiny. Accordingly we recommend the establishment of a new joint committee to be called the Joint Committee on Scrutiny of Bills.[25]

3.3 Whilst the Committee is of the opinion that legal qualifications or experience may be an advantage, it is by no means an essential pre-requisite for service on a parliamentary scrutiny committee. The Committee is of the view that well understood scrutiny principles with the assistance of legal advisers and experts means that new members can quickly learn and adapt to the scrutiny principles, processes and culture. Further it is not unusual for Members to serve for more than one term, and therefore this longer term commitment to rights can be an important factor in ensuring that committees function effectively and that their members develop a level of expertise in the issues that come before them.[26]

3.4 Composition and Chairperson – Since inception, the Scrutiny of Acts and Regulations Committee has had a membership of 9 comprising 5 government and 4 opposition Members. Membership from the Legislative Council has varied from 2 to 4 Members. From inception, the Chairperson of the Committee has been held by a government Member. The practice in the present and some of the past Parliaments has been for an opposition Member to hold the Deputy Chair. In respect to the optimum size of a scrutiny committee also refer to paragraph 4.7.

3.5 The Committee notes that the some of the parliamentary committees in the United Kingdom make provision for a government majority of members but provide that the chairperson shall be held by a member of the opposition. That practice has some parallels in the Australian Senate where an opposition Senator (Barney Cooney – Vic) continued to chair the Senate Scrutiny of Bills Committee notwithstanding the change of government in 1996. The current Chair of the Senate Scrutiny of Bills Committee is opposition Senator Robert Ray (Vic). In Victoria in the last Parliament (54th), to reflect the then opposition majority in the Legislative Council half of the Joint-House Committees had opposition majorities and opposition chairpersons.

3.6 In our opinion, regardless of the composition or mode of appointment an essential ingredient for effective scrutiny is bi-partisan co-operation. Committee members should be prepared to enthusiastically embrace and engage in non-policy scrutiny of legislation where that scrutiny is based upon universally agreed objective principles or criteria.

Jurisdiction

3.7 The Committee considers that it is critical to the efficacy and legitimacy of the scrutiny process and the reputation of the scrutiny committee that the trigger to enliven the scrutiny inquiry process should be the introduction of any Bill in either House by any Member. In this respect the Committee notes and endorses the following passage from the Senate’s 1978 report concerning the proposal to establish a scrutiny of bills committee.

A threshold question to be considered in determining the ambit of the Scrutiny Committee’s operation is whether the committee should examine all bills introduced into the Parliament or only those bills which are specifically referred to it. We have no doubt that, for the committee to be effective, it must consider all bills which are introduced into the Parliament: otherwise, the service which the committee is designed to provide may be undermined by the direction of its efforts to those bills which are least in need of attention. Having determined that all bills should be scrutinised as a service to Parliament and that the committee should exercise a highlighting rather than a delaying function in respect of legislation, we believe it is essential that a means be found to enable effective scrutiny without necessarily impeding the Government’s legislative programme.[27]

A further related matter needing mention concerns the ambit of the terms of reference. In Part 4.2 the Committee has considered the question whether the current terms of reference (section 17(a)(i) ‘rights or freedoms’) is sufficient to provide the committee with a broader human rights scrutiny function.

Time

3.8 We consider that a parliamentary scrutiny of legislation committee requires a reasonable time in which to make inquiry, deliberate and report to the Parliament. The Committee occasionally encounters Bills that have had, or are about to have, a speedy passage through the Parliament. The Committee recognises that there may be a number of very good reasons why, in special cases, this may be necessary or desirable. However, speedy passage currently presents the Committee with jurisdictional problems as the existing legislation[28] only permit the Committee to report on Bills and not Acts. A clear example of the difficulties encountered as a consequence of this limitation was encountered during the passage of the Serious Sex Offenders Monitoring Bill in February 2005 which was introduced on 23 February 2005 , second read and passed in the Legislative Assembly on the same day. The Legislative Council passed the Bill the next day and the Act was given Royal Assent on 1 March 2005 . However, on that occasion the Committee was able to schedule an expedited meeting to consider and report on the Bill during the luncheon adjournment on Wednesday 23 February. The Committee tabled an Alert Digest on that Bill on Thursday 24 February 2005 hours before it had completed all stages in the legislative process. In that case the Committee’s consideration and evaluation of the provisions in the Bill were regrettably hasty. The Committee understood the policy aspects in the proposed legislation that made expedited passage necessary or desirable. However the Committee also considered the Bill raised important issues of rights and freedoms that would in the normal course require fuller deliberation and an opportunity for citizen participation by way of submissions or evidence. In previous Parliaments there have been instances where a Bill has secured passage in both Houses on the same day.[29]

3.9 The Committee’s terms of reference currently recognise that there may be instances where the Committee may have insufficient time to consider a Bill and table a report while it is still a Bill before the Parliament. The Act however limits this ‘safe harbour’ period to just 30 days immediately after the first appointment of Members to the Committee after a general election.[30] The Committee considers that this may be an anomalous provision because it recognises that there will be instances where the Committee will be unable to report to the Parliament but prescribes just the one 30 day period at the commencement of each Parliament.

3.10 The Victorian limitation is overcome in New South Wales by inclusion of the following provision in the terms of reference of the Legislation Review Committee –

8A(2) A House of Parliament may pass a Bill whether or not the Committee has reported on the Bill, but the Committee is not precluded from making such a report because the Bill has been passed or has become an Act.[31]

3.11 We note that in 2002 the Committee made the following recommendation in its report ‘Improving Victoria’s Parliamentary Committee System’ tabled in the last Parliament in May 2002:

6a The Committee recommends that the Scrutiny of Acts and Regulations Committee be given the power to consider Acts if they were not reported on by the Committee when they were still Bills.

3.12 The most compelling reason why a Parliamentary oversight committee should have a reasonable jurisdiction to carry out investigations and report is to ensure that the dialogue or discourse dynamics referred to in Part 2 of this submission are not unduly circumscribed or abridged. Where the Committee feels that there are good reasons to engage in a longer or more robust review of a Bill, and perhaps call for submissions or hold public consultations it should not be unduly limited by the necessities of Parliament’s legislative program. One of the fundamental hallmarks of the operation of a parliamentary committee is the ability for persons and organisations to have a window of opportunity through public participation in the scrutiny of proposed legislation.

3.13 In the context of parliamentary scrutiny of legislation it would seem to the Committee fundamental and highly desirable that a reasonable opportunity be provided for citizen participation in the important consideration of rights and freedoms. The Committee considers that this would equally apply to a Committee with expanded terms of reference requiring it to consider issues of compatibility with human rights principles as may be prescribed in a charter of human rights.

3.14 One further good reason to allow a parliamentary scrutiny committee sufficient time to evaluate and report on provisions is the possibility that a house-amendment (post-introduction of the bill) is made to the Bill during the second or third reading stages and after the committee has tabled its report. If the amendment is relevant to the committee’s terms of reference it should have time to prepare a supplementary report concerning the house amendment.

3.15 In passing, we note that it seems incongruous that in respect to regulations (delegated legislation) the Committee has a much longer window of opportunity to evaluate and if necessary report on regulations. The Subordinate Legislation Act 1994[32] provides the Committee with a power to recommend disallowance of a statutory rule (regulations) up to 18 sitting days after it is laid before a House of the Parliament. It is true that in the case of regulations there may often be more supporting material of a formal or technical nature that must be reviewed, such as the sufficiency of a regulatory impact statement (RIS) or ministerial certificates. However, it seems to the Committee that a reasonable opportunity should be given to a parliamentary scrutiny committee to review contemporaneous legislation even where the legislation has passed through all stages of the parliamentary process.

3.16 The Committee however understands that Members of Parliament would find Alert Digests more useful while a Bill is still alive within the Parliamentary process. The Alert draws attention to potentially problematic provisions and assists Members to consider whether such provisions are in all the circumstances appropriate or necessary. The Committee has therefore concluded that it should remain a prime objective to ensure that a report, even an interim report, is tabled in Parliament before the resumption of the debate after a Bill is second read.

3.17 The Committee notes with interest the submission made to the Human Rights Consultative Committee by Dr James Kelly and Dr Janet Hiebert:

Parliament requires sufficient opportunity to examine bills and hear from non-government witnesses and experts who provide different perspectives on whether the claimed objective is justifiable and whether the means contemplated are reasonable.

The Committee also notes with interest the recommendations made by the Senate Standing Committee reporting in 1978 on the proposal to establish the first Australian scrutiny of bills committee.

…the committee would be empowered to continue its scrutiny and report to both Houses notwithstanding passage of the bill by Parliament and receipt of the Royal Assent.[33]

Information

3.18 A parliamentary scrutiny of legislation may resort to a number of sources of information, the Bill itself, an explanatory memorandum, the second reading speech, legal advice from external or secretariat legal advisers and written submissions from persons and organisations. Additional important sources of information come from correspondence with Ministers and where time permits oral submissions from interested persons or organisations. The Minister’s second reading speech more often deals with the broad policy outline of the legislation rather than dealing with the detail of the respective clauses. Therefore the Committee and its legal advisers are heavily dependent on the content of the explanatory memorandum to explain the policy and reasoning for the form and content of the provisions.

3.19 The Committee over the years has observed several times that the quality of explanatory memorandum varies greatly. The Committee has encountered very helpful and considered explanatory material and some very poor ones. On some occasions the Committee has encountered explanatory material less useful than the provision itself. On one occasion the explanatory memorandum relevant to an amendment to a police disciplinary provision provided ‘Clause 23 amends section 48’. We consider that this could not be characterised in any way as ‘explanatory’ and duly wrote to the Minister. Further the Committee does not consider an explanatory memorandum that repeats verbatim the provision itself could be fairly said to be ‘explanatory’ unless the provision is a straight forward machinery measure.

3.20 The Committee strongly endorses the following extracts comment in the Senate’s report on the usefulness of effective explanatory memoranda.

Explanatory memoranda fulfil an important role in the legislative process. The quality of the information provided in these documents enhances the transparency of the legislative process, the quality of the legislation and the ability of people to read and understand the laws passes by the Parliament. The standard of information provided by the documents is therefore an issue of concern to the committee, the Parliament, the courts and the public.[34]

When a bill is introduced, it is usually accompanied by an explanatory memorandum. The committee relies on the explanatory memorandum to explain the purpose and effect of the associated bill and the operation of its individual provisions. In particular, the committee expects that an explanation will be given for any provision within a bill that appears to test or infringe the committee’s terms of reference and provide reasons or justification for this.[35]

3.21 In respect to the desirability and utility of comprehensive explanatory material to the legislative process we note with interest the following passage from a submission made to the Human Rights Consultation Committee –

In the Australian Capital Territory, a practice is developing where the sponsoring department uses the Explanatory Memorandum to provide a comprehensive policy rationale for the bill. This practice is significant because it provides a legislative history of the draft bill and that will become a useful resource in two contexts:

• It will help the Scrutiny of Acts and Regulations in the assessment of the bill.

• When a statute is challenged in court and the Department of Justice is required to defend the Crown. The Explanatory Memorandum can provide the Department of Justice with a legislative basis to defend the challenged statute.

…

A detailed Explanatory Memorandum can be used to articulate in a public setting the thinking behind a policy and to present a principled defence of a statute that considers both rights and reasonable limitations.[36]

3.22 We note that one of the interesting developments following the Fitzgerald Inquiry in Queensland was the enactment of the Legislative Standards Act 1992 (Qld). That Act’s long title provides that it is ‘An Act relating to the standards of legislation, the drafting of legislation and for other purposes related to legislation’. Part 4 of that Act governs standards to be observed concerning the content of explanatory memorandum accompanying a Bill or subordinate legislation. In respect to improving the quality of information on proposed laws available to legislators we consider that the Legislative Standards Act 1992 (Qld) is a welcome development. The Committee considers that prescribing in legislation, the sufficiency and content of explanatory material can assist the legislative process in a number of ways. The provision of detailed explanatory material assists –

• Government departments and agencies, at an early stage, the evaluation of effective and proportionate legislative responses to meet identified public policy objectives,

• More effective drafting of legislation by the Office of Chief Parliamentary Counsel,

• Members of Parliament considering the public policy purposes and impact of proposed legislation and as a consequence the contributions they make to the parliamentary debate,

• The parliamentary committee(s) scrutinising and reporting on the Bill,

• Courts, the legal profession and the public in understanding and interpreting the law.[37]

Most importantly we consider that a Victorian equivalent of the Legislative Standards Act 1992 (Qld) would be a useful measure to promote a more robust consideration of policy and policy options at the pre-enactment stage. The Committee attaches a copy of the Queensland Act at Appendix 3.

Independent legal advice

3.23 A parliamentary scrutiny committee needs the support of competent legal advice from experienced officers. The Victorian Scrutiny Committee has a small secretariat comprising two legal advisers and two administrative support staff. Each of the legal advisers specialise in one area, either the scrutiny of Bills or the scrutiny of regulations. Both officers have a good working knowledge of each others area of specialisation.

3.24 Unlike the other Australian scrutiny of Bills committees the Victorian committee does not engage external legal academics or experts. The New South Wales and the Queensland committees have appointed a panel of experts and have the ability, in appropriate cases to refer Bills for special analysis by one or more members of the panel. The practice in the Australian Senate Scrutiny of Bills Committee and the Australian Capital Territory ’s committee is to appoint a single legal academic as the adviser.

3.25 In the Victorian Committee the Senior Legal Adviser also co-ordinates and manages the other inquiry work of the Committee. At various times during the life of the Parliament this can be reasonably onerous and time consuming. Since the commencement of this Parliament the Committee has been required to undertake two substantial inquiries on Electronic Democracy and a review under the Equal Opportunity Act 1995 concerning the identification of provisions in any Victorian enactment that may discriminate against any person. In addition the Committee has a long standing Order of the Governor in Council to review redundant or unclear legislation. The Committee has reviewed three Acts under this Order in the current Parliament.

3.26 The Committee notes with interest the recommendations made in 1978 in the Senate Standing Committee’s Report on the proposal to establish a Scrutiny of Bills Committee.

In order to perform its scrutiny effectively with the necessary expedition, we consider it essential to the success of the proposal that the new committee retain counsel.[38]

A co-operative working relationship with the executive

3.27 Effective parliamentary review requires a commitment by the executive to respond to the committee’s concerns identified in the scrutiny process in a timely manner, and if possible before the proposed legislation had passed through all stages of the parliamentary process. A speedy response can assist the Parliament in it’s consideration of the provision(s) in question. The response of the Minister also comprises an important part of the public record that can be relied on by persons and organisations understanding the reasoning behind the policy option adopted. Ministerial correspondence may also assist in the interpretation of the law in a judicial context.[39]

4. Human Rights Scrutiny By A Parliamentary Committee

4.1 We make a number of observations concerning the measures that may be necessary or desirable to confer an effective human rights scrutiny role on a parliamentary committee.

4.2 Additional terms of reference – amendment to the Parliamentary Committees Act 2003 – The Committee is of the view that the current term of reference in section 17(a)(i)[40] (‘trespasses unduly on rights or freedoms’) may be inadequate on its own to clearly confer jurisdiction on the Committee to report on broadly prescribed human rights principles as may be provided for in the Charter. The current head of scrutiny power is traditionally interpreted by scrutiny committees as encompassing generic common law rights and freedoms, among others, provisions such as the abrogation or abridgment of the privilege against self-incrimination, an offence provision with a reverse onus of proof or the presumption against retrospective legislation. We note that unlike the provisions found in Queensland[41] the Committee has no prescribed guide or list of fundamental rights and freedoms that it must have regard to (Appendix 3). We also note the following relevant passages from the report of the ACT Bill of Rights Committee and a submission to the HRCC from the University of Melbourne .

A significant limitation of the Standing Committee’s terms of reference is that they do not contain a definition of what constitutes the ‘rights and liberties’ the Committee is required to consider. The Standing Committee is left to decide for itself the rights and liberties it will refer to.[42]

…

Committees should be asked to undertake their work guided by a detailed set of rights based on the major international rights covenants. This will add to the workload of committees and will require additional resources being made available.[43]

Therefore we recommend that for the avoidance of doubt there be a clear conferral on a parliamentary committee of a duty to scrutinise and report on laws that may abridge, repeal or amend a prescribed human rights law in the Charter.

4.3 We consider that to give appropriate recognition to the primacy of the Charter that the conferral of a scrutiny power on a parliamentary committee should be located in the Charter itself. The Committee also considers that a counterpart provision receiving that conferral be enacted in the Parliamentary Committees Act 2003. Such a conferral and reception model would provide clear legislative recognition of Parliament’s paramount role in protecting fundamental civil and political human rights.

4.4 The Committee has considered the consequential provisions and amendments that may be necessary if a parliamentary committee is invested with a Charter rights scrutiny function. On the assumption that the function is to be conferred on the present Scrutiny Committee we consider that necessary provisions may be similar to the suggested draft provisions below.

4.5 In the event that the Charter contains a power for the Supreme Court to make a declaration of incompatibility with Charter laws, we consider that a parliamentary committee should be invested with a special ‘review and report’ function concerning the incompatible laws. The parliamentary committee could conduct an inquiry, take written and oral evidence, assess and balance the competing policy aspects independent of the executive. The executive would of course remain free to advocate the reasoning and justification for retaining the laws. We note that the concept of a parliamentary review of laws which are the subject of a judicial declaration of incompatibility is supported by a number of prominent human rights academics.

The Committee’s mandate should also include review of legislation that has resulted in a judicial declaration of incompatibility.

…

The Scrutiny of Acts and Regulations Committee would be an important body to facilitate this necessary reflection, and engage the government in dialogue about the merits of the legislation or need for revisions.[44]

…

There will be occasions when human rights committees can play a useful role in carrying out longer-term enquiries into proposed legislation or policy matters – for example, in relation to legislation that raises particularly difficult rights issues where it is desirable to combine the rights expertise of the committee with the opportunity for public consultation.[45]

4.6 Recommended provisions in the Charter.

The Charter

Parliamentary scrutiny of laws

(1) The Committee must report to the Parliament on any human rights issue directly or indirectly raised in a law introduced or tabled in the Council or the Assembly.

(2) In reporting to the Parliament the Committee may also report to the Parliament on the content and adequacy of any explanatory material accompanying a law.

(3) Where a Minister had made a statement of incompatibility concerning a law, that law shall be referred to the Committee for inquiry, consideration and report.

(4) Where the Supreme Court has made a declaration of incompatibility concerning any law the Attorney-General shall refer that law to the Committee for inquiry, consideration and report.

(5) The Council or the Assembly may pass a law whether or not the Committee has reported on the law, but the Committee is not precluded from making a report under subsections (1), (2) or (3) because a law has been passed or has come into force.

(6) Failure to comply with subsections (1), (2) or (3) in relation to a law does not affect that laws validity, operation or enforcement.

(7) In this section –

‘explanatory material’ means a ministerial statement of human rights compatibility, the explanatory memorandum accompanying a Bill and any other statement, certificate or instrument that is required to be provided under this Act or the regulations.

‘Committee’ means the Human Rights Committee OR the Scrutiny of Acts and Regulations Committee established under section 5 of the Parliamentary Committees Act 2003.

‘human rights laws’ means the laws prescribed by the Charter

‘law’ means (in the appropriate circumstances) a Bill, an Act or a statutory rule.

‘statement of incompatibility’ means a statement made by the Minister that a law does not comply with, repeals, alters or varies the Charter laws.

Parliamentary Committees Act 2003 (if a new Committee is established)

After section 5(k) insert –

Section 5(l) the Human Rights Committee

After section 17 insert –

Section 17A Human Rights Committee

The functions of the Human Rights Committee are, if so required or permitted under the Charter to inquire into, consider and report to the Parliament on any law that raises an issue of human rights within the meaning of the Charter.

OR

Parliamentary Committees Act 2003 (if the current Committee is conferred a scrutiny function under the Charter)

After section 17(a) insert –

Section 17(aa) such functions as are conferred on the Committee by the Charter.

4.7 We consider that any resource implications for the Committee is at this point problematic to assess without first knowing the extent of the scrutiny obligations to be conferred on the Committee by the Charter. Clearly, were any form of human rights scrutiny, inquiry and reporting functions to be conferred on the current Committee there will be some resource implications. This is particularly so given the hybrid nature of the current Committee.[46]

4.8 There are at least two scenarios in respect to resource implications for the current Committee. Both scenarios place an additional workload on the Committee secretariat, they are (i) where the additional terms of reference require the Committee to report on every Bill or every ministerial compatibility statement accompanying a Bill or, (ii) report only on those Bills with statements that identify ‘incompatibility’. In either scenario the Committee assumes that it will have a reserve discretion to report on any Bill, if in the Committee’s opinion a Bill raises a human rights issue notwithstanding a positive compatibility. That is the Committee should have jurisdiction that is not limited by an act of the executive (see Part 3.7).

4.9 If Charter model required the Committee to report on all Bills as to compatibility with human rights principles, this would require the Committee to conduct its own assessment of whether the provisions of a Bill test or invoke any of the prescribed Charter principles. Clearly this would have a significant resource implication. By way of comparison the Committee’s current oversight of provisions in Bills concerning any limitation of the jurisdiction of the Supreme Court[47] is not nearly as onerous as may be entailed in a careful assessment of compliance with broadly defined human rights principles as may be prescribed in the Charter.

4.10 The Committee considers that the question of any resource implications for a parliamentary committee with a human rights scrutiny function would need to be carefully evaluated within the context of expectations on parliamentary oversight and reporting as proposed in the Charter.

If there are significant resource implications for parliamentary scrutiny in respect to workload of Members and committee secretariat staff, there are options that may effectively accommodate the new conferred Charter functions.

4.11 We consider that the options for effectively accommodating a human rights scrutiny function on a parliamentary committee may include –

(a) The creation of a second parliamentary scrutiny committee. In this model there may be a Scrutiny of Bills Committee and a Scrutiny of Regulations Committee (two Committees as in the Senate system). Each of the Committees could operate with 5 to 7 Members rather than the current Scrutiny Committee of 9 Members. In this respect the Committee notes the following extracts from the 1978 Senate report on the proposal to establish a scrutiny of bills committee.

We believe that the Scrutiny Committee should be a considerably smaller committee than existing joint committees. Specifically, we recommend that it should have only 8 members.

…

Not only must the committee be small but there is also a good case for departing from the time constraint which has prevented joint committees and Senate committees meeting while the Senate is sitting.[48]

It is worth noting that the Senate report contemplated that in certain necessitous circumstances Parliament should countenance a committee meeting whilst Parliament is sitting. We consider that this approach is worth investigating. Currently a committee may only meet whilst Parliament is actually sitting during an adjournment break (lunch or dinner).

Each Committee would have access to specialist external legal experts. The Scrutiny of Bills Committee would be conferred the human rights scrutiny and reporting function. The Scrutiny of Regulations Committee would also be conferred a mirror human rights scrutiny function to review and evaluate human rights issues in respect to statutory rules (regulations) tabled in Parliament.

(b) The current Scrutiny Committee in its present could be conferred the additional functions with additional legal research staff and access to specialist advice from external human rights adviser or panel of advisers. In passing we do not underestimate the workload currently invested in the Committee with its duel role of scrutiny of Bills and regulations. The scrutiny of statutory rules is demanding and important work and in the case of some statutory rules also requires a careful analysis of regulatory impact statements. Given the multifaceted aspects of parliamentary life the Members that also serve on the Regulation Review Subcommittee (all Members participate in the scrutiny of Bills) find the work both challenging and demanding. It seems to us that the prospects for the creation of another permanent subcommittee, in addition to the existing Regulation Review and Redundant Legislation subcommittees is perhaps a little too ambitious for a Committee of 9 Members to recommend as the preferred option.

(c) The Parliament could establish a new Human Rights Committee with terms of reference to reflect its scrutiny and reporting functions under the Charter. Depending on the Charter model that is adopted and the level of scrutiny and reporting required, the new Committee would either have its own secretariat and legal advisers or have access to appropriate secretarial and legal advice from another legally based parliamentary committee such as the current Scrutiny of Acts and Regulations Committee. In addition to appropriate support from a secretariat the Committee would have access to external human rights experts.

The preferred model to be adopted will depend upon a careful analysis of expectations and anticipated workload. The Committee notes these observations made in a joint submission made to the HRCC –

A parliamentary Human Rights Committee should be established to scrutinise new legislation and advise upon its compatibility with the rights and freedoms contained in the Charter. A precedent for such a parliamentary process has already been established with the operation of the Scrutiny of Acts and Regulations Committee (SARC). It would be unreasonable to expect that SARC could undertake its existing functions as well as the onerous tasks imposed by the requirement to consider the compatibility of legislation with a Charter.[49]

5. Recommendations

Conclusion

5.1 We observe that through its system of established all-party Joint Investigatory Committees under the Parliamentary Committees Act 2003, the Parliament has the capacity to expose legislation to effective and useful scrutiny in a way that is independent of the Executive and that allows public participation. We also observe that pre-enactment parliamentary review has certain public benefits when compared to the alternative process of adversarial, costly case by case judicial determination.

Our experience of parliamentary scrutiny of legislation over the past 12 years leads us to consider that scrutiny performs a constructive role in promoting an awareness of rights and freedoms within the Parliament, the Executive and the community. We are therefore confident in concluding that parliamentary scrutiny of legislation based on well accepted human rights principles, conferred on a committee of the Parliament, will facilitate a continuing dialogue on human rights. Pre-enactment scrutiny of legislation in our view would encourage better law making at first instance and in the process a greater awareness and respect for human rights in Victoria .

5.2 For the purposes of our recommendations we have assumed that two fundamental aspects of the Charter model adopted in Victoria would include a compatibility (or incompatibility) statement made by the responsible Minister (or the Attorney-General) when introducing a Bill, and secondly that the Supreme Court would have a declaratory power in respect to laws that are held to be incompatible with the Charter rights.

5.3 We consider that if a Charter is adopted the following fundamental measures should be adopted to ensure effective parliamentary scrutiny. In these recommendations –

‘explanatory material’ includes an explanatory memorandum attached to a Bill, a statement of compliance or any other prescribed statement or material.

‘parliamentary committee’ means a Joint-House all-party committee established pursuant to the Parliamentary Committees Act 2003.

‘Charter’ means the human rights laws prescribed in constitutional or statutory form.

‘law’ means a Bill, Act or statutory rule.

Scrutiny of Acts and Regulations Committee
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