Scrutiny of Acts and Regulations Committee

Annual Review 2006, August 2007

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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 2006. There are two publications that further describe the Committee’s work during 2006, the Annual Review of Regulations considered in 2006[i] and the cumulative Alert Digest[ii] concerning the scrutiny of Bills introduced in the Parliament in 2006.

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 12 Joint House Committees of the Victorian Parliament. It is one of six 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.

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 52nd Parliament in November 1992. Mr Victor Perton MLA (LP – Doncaster) became the Committee’s first Chairman. Following the March 1996 State election, the Committee was reconstituted for the 53rd Parliament with Mr Peter Ryan MLA (NP – Gippsland South) as Chairman. The 53rd Parliament was dissolved in August 1999. The Committee of the 54th Parliament was reconstituted on 15 December 1999 with Ms Mary Gillett MLA (ALP – Werribee) elected Chair of the Committee. From March 2003, the Chairperson of the Committee in the 55th Parliament was Ms Lily D’Ambrosio MLA (ALP – Mill Park). In the current Parliament (56th) the Chairperson of the Committee (since December 2006) is Mr Carlo Carli MLA (ALP – Brunswick).

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.

Committee composition and membership

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

The Committee of the 55th Parliament consisted of nine members, seven from the Assembly and two from the Council. The Committee established in December 2006 in the 56th Parliament consisted of nine members 5 from the Assembly and four from the Council. As in previous Parliaments, the Committee, in each case was composed of five members from the government and four members from the opposition parties.

Committee members during 2006

The members of the Committee during 2006 were –

55th Parliament (to October 2006)

• 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

56th Parliament (from 19 December 2006)

• Mr Carlo Carli MLA (Chairperson)

• Mr Colin Brooks MLA

• The Hon. Richard Dalla-Riva MLC

• Mr Khalil Eideh MLC

• Mr Nazih Elasmar MLC

• Mr Ken Jasper MLA

• Mr Andrew McIntosh MLA

• Ms Jaala Pulford MLC

• Mr Murray Thompson MLA

The Subcommittees

By Committee resolutions passed at the commencement of the 55th Parliament the Committee 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.[v] Pursuant to other statutory reporting responsibilities, the Subcommittee must also review other specified subordinate instruments.

The members of the Regulation Review Subcommittee during 2006 (to October 2006) were –

• Mr Peter Lockwood MLA (Chair)

• Ms Lily D’Ambrosio MLA

• The Hon. Andrew Brideson MLC

• Mr Ken Jasper MLA

• Mr Jude Perera MLA

Redundant Legislation Subcommittee

The Subcommittee was first established as a consequence of a long-standing Governor in Council reference (1994), which has been 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.

The Committee did not receive any additional new references during 2005 or 2006.

The members of the Redundant Legislation Subcommittee during 2006 (to October) were –

• Mr Murray Thompson MLA (Chairperson)

• Ms Lily D’Ambrosio MLA

• The Hon. Lidia Argondizzo MLC

• Mr Michael Leighton MLA

• Mr Andrew McIntosh MLA

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 2006 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’s office is located at Level 3, 55 St Andrews Place, Melbourne.

External consultants

The Committee did not engage any external consultants during 2006.

The Committee’s work during 2005

The Committee’s work during 2006 fell into four main areas –

• Scrutiny of Bills introduced into Parliament;[vi]

• Scrutiny of subordinate legislation[vii] (regulations) and specified directives and other instruments (refer also to the Subordinate Legislation Act 1994, s. 21; Environment Protection Act 1970, ss. 18D, 49AN and 70C and other Acts);[viii]

• Review of redundant, ambiguous or unclear legislation;

• Inquiries or the review of Acts that are referred to the Committee by a resolution of either the Council or the Assembly[ix] or by a Minister through an Order of the Governor in Council published in the Government Gazette.[x]

Section 17(a) – Scrutiny of Bills

The Committee considered 87 Bills during 2006. 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 2006 and the tabling dates of the 12 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.

A selection of noteworthy Bills in 2006

The Aboriginal Heritage Bill seeks to protect and conserve Aboriginal cultural heritage.

The Charter of Human Rights and Responsibilities Bill (the ‘Charter’) establishes a framework for the protection and promotion of human rights in Victoria. The Charter provides additional terms of reference to the Committee to report to Parliament on provisions in Bills and regulations that may be incompatible with Charter rights.

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 cy pres 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 Courts Legislation (Neighbourhood Justice Centre) Bill established a Neighbourhood Justice Division of the Magistrates’ Court to trial, as a pilot project, a more flexible and speedy justice system.

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 Disability Bill enacted a new legislative scheme for persons with a disability.

The Education and Training Reform Bill provided for a new legislative basis for the regulation of education and training in Victoria and repealed 11 existing education and training related Acts.

The Electoral and Parliamentary Committees Legislation (Amendment) Bill introduced electronic voting for visually impaired persons and amended the Parliamentary Committees Act 2003 to allow the Scrutiny of Acts and Regulations Committee to report on Bills up to 10 sitting days after the Bill had become an Act (i.e. after Royal Assent). The amendment allows the Committee to report to Parliament, for example, where a Bill is considered urgent and receives speedy passage through Parliament without the Committee being able to meet, consider and report on the provisions of a Bill.

The Infringements Bill provides a new framework for the issuing, serving and enforcement of infringement notices.

The Owners Corporations Bill creates a new legal framework for the governance of bodies corporate.

The Statute Law (Further Revision) Bill made minor amendments to 41 Acts, twelve of which were retrospective amendments and removed some 147 spent or redundant Acts from the Victorian statute books.

The Terrorism (Community Protection) (Amendment) Bill provided for a raft of new counter-terrorism measures and enhanced existing powers. The provisions gave effect to a Commonwealth, States and Territories agreement. The Committee undertook considerable community consultation in relation to the Bill, resulting in written submissions and evidence provided by concerned parties at a public hearing. The Committee included a detailed report of its comments in [Alert Digest No. 1 of 2006], and its website carried the submissions and a transcript of the evidence taken.

The Victim’s Charter Bill provides a statutory recognition for the rights of victims of crime.

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 87 Bills considered in 2006, three (3 per cent) contained a section 85 Constitution Act 1975 provision. In 2005, of the 113 Bills introduced, nine 9 (8 per cent) contained section 85 provisions. The Bills in 2006 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 and others over more extended periods. On occasions the Committee needs to follow up requests for further advice by courtesy reminder letters. In 2006, 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 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 2002 to 2006

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

[Text alternative of Table 1 image]

Table 2 – Number of Alert Digests tabled in Parliament

[Text alternative of Table 2 image]

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

Regulation Review Subcommittee

The Regulation Review Subcommittee held six meetings during 2006. During those meetings it considered 135 statutory rules. Of those statutory rules considered by the Subcommittee, 20 were accompanied by regulatory impact statements. The statutory rules examined by the Subcommittee during 2006 are shown at Appendix 5.
The Committee did not make any adverse reports to Parliament during 2006 concerning regulations. However of the statutory rules examined during 2006, the Subcommittee had concerns with five 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 Review of statutory rules considered during 2006 by mid-2007.

Section 17(e) – Environment Protection Act 1970

The Regulation Review Subcommittee did not consider any state environment protection policies or waste management policies during 2006 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 2006 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 was not referred any new inquiry under this term of reference.

Section 33 – Referrals to Joint Investigatory Committees

During 2006 the Committee completed a Parliamentary referral in respect to the Statute Law (Further Revision) Bill tabled in March 2006.

Committee publications released during 2006

During 2006, the Committee published the following reports and papers in print and also on its website –

• Alert Digests Nos. 1 to 13 of 2005, March 2006

• Annual Review 2005, March 2006

• Report on the Statute Law (Further Revision) Bill, March 2006

• Annual Review 2005, Regulations 2005, July 2006

• Alert Digests Nos. 1 to 12 of 2006, November 2006

A chronological list of all Committee reports and publications dating from the inception of the Committee in 1992 to the present day is provided in Appendix 4.

Reports due to be published during 2007

• Report on the Statute Law Repeals Bill 2006, April 2007

• Report on the Statute Law Revision Bill 2006, May 2007

• Annual Review 2006, Regulations 2006, mid-2007

• Alert Digests on Bills introduced during 2007, February to December 2007

Committee issues first Practice Note

In October 2005, 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 6.

Committee Website

During 2006 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’s website includes the contact and membership details of counterpart Australasian scrutiny committees.

Scrutiny of Acts and Regulations Committee
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