Scrutiny of Acts and Regulations Committee

Annual Review 2007, April 2008

[Table of Contents]

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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 2007. There are two publications that further describe the Committee’s work during 2007, the Annual Review of Regulations considered in 2007[1] and the cumulative Alert Digest[2] concerning the scrutiny of Bills introduced in the Parliament in 2007.

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[3] (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. Statute law revision Bills were at one time considered by the Statute Law Revision Committee which was established by the Parliament as a specific purpose committee to consider periodic statute law revision Bills. Such Bills were less frequent than in current times.

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[4] 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.

During 2007 the Committee and the interim Committee consisted of nine members, five from the Assembly and four from the Council.

As in previous Parliaments, during 2007 the Committee and the interim Committee was composed of five members from the government and four members from opposition parties.

Committee members during 2007

The members of the Committee during 2006 were –

Interim Committee (from 19 December 2006 to 28 February 2007)

• 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

Committee (from 1 March 2007)

• Mr Carlo Carli MLA (Chairperson)

• Mr Ken Jasper MLA (Deputy Chairperson)

• Mr Colin Brooks MLA

• Mr Khalil Eideh MLC

• Mr Telmo Languiller MLA

• Mr Edward O’Donohue MLC

• Mrs Inga Peulich MLC

• Ms Jaala Pulford MLC

• Mr Ryan Smith MLA

The Subcommittees

It is the custom of the Committee to establish, by special resolution the Regulation Review Subcommittee and the Redundant Legislation Subcommittee at the commencement of each new Parliament. The Committee may also, from time to time, establish other subcommittees that may be desirable to undertake specialist inquiry work.

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 prescribed in that Act.[5] Pursuant to other statutory reporting responsibilities, the Subcommittee must also review other certain special subordinate instruments.

The members of the interim Regulation Review Subcommittee during 2007 (from 13 February to 28 February 2007) were –

• Mr Ken Jasper MLA (Chair)

• Mr Carlo Carli MLA

• Mr Colin Brooks MLA

• Ms Jaala Pulford MLC

• Mr Murray Thompson MLA

The members of the Regulation Review Subcommittee during 2007 (from 9 March 2007) were –

• Mr Ken Jasper MLA (Chair)

• Mr Carlo Carli MLA

• Mr Colin Brooks MLA

• Mr Khalil Eideh MLC

• Mrs Inga Peulich MLC*

• Mr Ryan Smith MLA

*Retired from the Subcommittee on 16 April 2007.

Redundant Legislation Subcommittee

The Subcommittee was first established as a consequence of a long-standing Governor in Council reference first given to the Committee in 1994. The reference, which has been renewed in subsequent Parliaments, requires the Committee to review and make recommendations concerning Acts or other legislative instruments that are unclear, ambiguous or that may stand in need of redrafting.

During the year the Subcommittee had before it an inquiry into certain corporations laws that have been identified as possibly spent or redundant as a consequence of the State’s referral in 2001 of its corporations powers to the Commonwealth government.

The members of the Redundant Legislation Subcommittee during 2007 were –

• Mr Edward O’Donohue MLC (Chairperson)

• Mr Carlo Carli MLA

• Mr Khalil Eideh MLC

• Mrs Inga Peulich MLC

• Ms Jaala Pulford MLC

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 2007 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.

Consultants

During 2007 the Committee, with the approval of the Speaker, engaged the following external consultants –

• Dr Jeremy Gans, Human Rights Adviser (University of Melbourne);

• Ms Annette O’Callaghan, Redundant Legislation Adviser (Office of the Chief Parliamentary Counsel);

• Ms Alice Cashen, Redundant Legislation Assistant Adviser (Office of the Chief Parliamentary Counsel).

New Committee terms of reference – Charter of Human Rights and Responsibilities Act 2006

On 1 January 2007 provisions relevant to the Committee’s functions and terms of reference came into force as a consequence of the enactment of the Charter of Human Rights and Responsibilities Act 2006 (the ‘Charter’).
Section 30 of the Charter and its footnote provides –

30. Scrutiny of Acts and Regulations Committee

The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and must report to the Parliament as to whether the Bill is incompatible with human rights.

Note: The Scrutiny of Acts and Regulations Committee must also review all statutory rules and report to Parliament if it considers the statutory rule to be incompatible with human rights: see section 21 of the Subordinate Legislation Act 1994.

To reflect the Committee’s new human rights functions and statutory reporting responsibilities the Schedule to the Charter made consequential amendments to the Parliamentary Committees Act 2003 and the Subordinate Legislation Act 1994.

The amendments made to the Parliamentary Committees Acts 2003 inserted the following provisions within section 17 –

17. Scrutiny of Acts and Regulations Committee

(a)(viii) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities;
…
(fa) the functions conferred on the Committee by the Charter of Human Rights and Responsibilities;

A new paragraph was inserted in section 21 of the Subordinate Legislation Act 1994 to reflect the same Charter reporting functions in respect to the scrutiny of statutory rules.

21. Review of statutory rules by the Scrutiny Committee

(ha) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities;

The Committee’s work during 2007

The Committee’s work during 2007 fell into four main areas –

• Scrutiny of Bills introduced into Parliament;[6]

• Scrutiny of subordinate legislation[7] (regulations) and specified directives and other instruments;[8]

• 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[9] or by a Minister through an Order of the Governor in Council published in the Government Gazette.[10]

Section 17(a) – Scrutiny of Bills

The Committee considered 94 Bills during 2007. 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 eight separate heads of scrutiny, numbered sub-paragraphs (i) to (viii) –

(i) trespasses unduly upon rights or freedoms;

(ii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers;

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

(iv) unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000;

(v) unduly requires or authorises acts or practices that may have an adverse effect on privacy of health information within the meaning of the Health Records Act 2001;

(vi) inappropriately delegates legislative power;

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

(viii) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities;

A list of the Bills considered by the Committee during 2007 and the tabling dates of the 16 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.

Section 17(a)(viii) – is incompatible with the human rights & Section 30, Charter of Human Rights and Responsibilities Act 2006

The Charter of Human Rights and Responsibilities Act 2006 (the ‘Charter’) which commenced on 1st January 2007, added a new head to the Committee’s scrutiny of bills function: to report on whether any bill is ‘incompatible with the human rights set out in the Charter of Human Rights and Responsibilities.’ The Charter itself also provides that the Committee ‘must consider’ every bill and ‘must report’ on any incompatibility with human rights. The relevant human rights are set out in Part 2 of the Charter, which also contains a further provision (Charter s. 7(2)) that specifies when a Charter right ‘may be subject under law [to] limits’. A bill will be incompatible with human rights if it infringes a Charter right and does not satisfy the test in Charter s. 7(2). Commencing with Alert Digest No. 12 of 2007 (in September), the Committee appended a separate ‘Charter report’ to its commentary on most bills.

The Committee reported on compatibility with human rights in fifteen out of sixteen Alert Digests in 2007. In Alert Digest No. 7 of 2007, the Committee reported to Parliament that the provisions of one bill (the Superannuation Amendment (Contribution Splitting and Other Matters) Bill 2007) were incompatible with the Charter s. 8, which provides Victorians with rights related to equality and non-discrimination. The Committee also drew attention to numerous provisions of other bills, referred certain rights issues they raised to Parliament for its consideration and made further inquiries to the relevant Ministers about these matters. In response to a query the Committee raised in Alert Digest No. 12 of 2007 concerning the Crimes (Rape) Amendment Bill 2007, the government responded by introducing amendments to remedy the potential incompatibility of a provision altering the definition of incest with the rights of families to protection under s. 17 of the Charter.

The Charter also altered the practices of Parliament and, as a consequence, the practices of the Committee. Charter s. 28 requires that a member of Parliament who introduces a bill must lay a ‘statement of compatibility’ before both houses that states whether a bill is compatible with human rights and, if so, ‘how’. The obligation to state how a bill is compatible with human rights is unique to Victoria. In its Practice Note No. 2, the Committee determined that it would regard statements of compatibility as equivalent to explanatory memoranda and would write to Ministers if it regarded a statement as inadequate or unhelpful in describing provisions that may engage or infringe a Charter right.

The most significant occasion when the Committee raised such a concern was in relation to the Infertility Treatment Bill 2007, where the statement of compatibility advised Parliament that the Bill raised no Charter issues. In Alert Digest No. 4 of 2007, the Committee determined that the Bill engaged Charter s. 10(c), which gave Victorians the right not to be subjected to medical treatment or experimentation without full free and informed consent, and expressed the need for Parliament to be informed about whether the Bill was a reasonable limit on this right. The Committee also wrote to Ministers concerning statements of compatibility that addressed complex bills without identifying relevant provisions clearly (Animals Legislation Amendment (Animal Care) Bill 2007) or whose account of a bill’s compatibility with multiple, complex human rights was brief and perfunctory (Criminal Legislation Amendment Bill 2007). However, the Committee also commended a number of statements of compatibility on their comprehensive and helpful analysis of human rights issues raised by bills.

Charter s. 31 gives Parliament a new power, in ‘exceptional circumstances’, to make an ‘override declaration’ in relation to a provision of a bill, which suspends the effect of the Charter on that provision for five years. In its report on the Superannuation Amendment (Contribution Splitting and Other Matters) Bill 2007, the Committee considered whether or not the need to achieve consistency with Commonwealth legislation was an exceptional circumstance. In relation to both that Bill and the Transport Legislation Amendment Bill 2007, the Committee sought further advice from the Minister about whether an override declaration should be made.

Bills where submissions were received during 2007

Within the relevant terms of reference the Committee welcomes public submissions concerning Bills currently before the Parliament. The Committee is aware of the onerous time constraints applying to such submissions. The strict timelines for making submissions arise from the necessity for the Committee to table a report on Bills for the assistance of Members, prior to the resumption of the debate after the second reading speech is delivered. This tight timetable may mean that as little as 2 weeks may be available for the receipt of a submission after a Bill is Second Read in Parliament.

Where need arises and time permits, the Committee reserves the right to invite evidence to be given before it at a private or a public hearing. In special circumstances the Committee may delay making a report on a Bill in order to hold public hearings or receive written submissions.

During 2007 the Committee received submissions in respect of the following Bills.

Infertility Treatment Amendment Bill 2007 (Alert Digest No. 4)

The Bill raised important issues concerning the voluntary donation of embryos for stem-cell research raising the human rights issues of full, free and informed consent to medical research / experimentation and the extent of medical and other risks to donors.

Written submissions were received from –

• Dr Nicholas Tonti-Filippini, Ethicist, Consultant;

• Dr Renate Klein and Ms Belinda Morris, Feminist International Network of Resistance to Reproductive and Genetic Engineering (FINRRAGE) Australia;

• Katrina George, Director, Women’s Forum Australia; and

• Hands Off Our Ovaries.

In addition, the Committee took verbal evidence on 4 April 2007 from –

• Dr Nicholas Tonti-Filippini;

• Professor Loane Skene, University of Melbourne – Deputy Chair, Lockhart Review Committee (Commonwealth); and

• Dr Jock Findlay, Chair of the Victorian Infertility Treatment Authority.

Justice and Road Legislation Amendment (Law Enforcement) Bill 2007 (Alert Digest No. 10)

An issue was raised concerning the use of agency (police) photographs of prisoners by the media.
Written submissions were received from –

• Helen Versey, Victorian Privacy Commissioner; and

• Ben Schokman and Philip Lynch, Human Rights Law Resource Centre.

Justice Legislation Amendment Bill 2007 (Alert Digest No. 12)

• Human Rights Law Resource Centre

Graffiti Prevention Bill 2007 (Alert Digest No. 13)

• Law Institute of Victoria

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 statutory reporting responsibility in relation to Bills which include provisions that repeal, alter or vary the jurisdiction of the Supreme Court. This responsibility has a nexus to the unique ‘manner and form’ requirements found in section 85 of the Constitution Act 1975. The Act requires the Committee to report to the Parliament as to whether such provisions are, in all the circumstances, appropriate and desirable.

Of the 94 Bills considered in 2007, only one (1)[11] contained a section 85 Constitution Act 1975 provision. In comparison in 2006 of the 87 Bills introduced three (3) contained section 85 provisions. Bills containing a section 85 Constitution Act 1975 provision are listed in Appendix 2.

A selection of noteworthy Bills considered in 2007

1. New principal Acts

The Accident Towing Services Bill 2007 established a new principal Act to regulate accident towing services in Victoria.

The Graffiti Prevention Bill 2007 is a new principal Act creating graffiti-related offences and providing search and seizure powers for the police force and power for a Council to enter private property to remove graffiti.

The Major Events (Aerial Advertising) Bill 2007 provides a new Act regulating and managing aerial advertising in proximity to major sporting and other events.

The Victorian Energy Efficiency Target Bill 2007 introduces a new Act to promote reduction of greenhouse gas emissions by establishing the Victorian Energy Efficiency Target scheme.

The Victorian Workers’ Protection Bill 2007 is a new principal Act seeking to ensure that employers pay wages in money and sets out the method of that payment. The new Act also regulates the ability of an employer to make deductions from an employee’s wages.

2. Amending Acts

The Children’s Services and Education Legislation Amendment (Anaphylaxis Management) Bill 2007 amends two education Acts to require schools to have an anaphylaxis management policy and to include such a policy as a minimum standard for registration of schools.

The Courts Legislation Amendment (Judicial Education and Other Matters) Bill 2007 amongst other amendments, provided for the continuation of the Koori Court until 1 July 2009.

The Crimes Amendment (DNA Database) Bill 2007 amends the Crimes Act 1958 to enable national automatic matching of data on a national DNA database.

The Crimes Amendment (Rape) Bill 2007 amended the Crimes Act 1958 in respect to the legal tests to be applied in the crime rape and in respect to jury directions to be given in rape trials.

The Criminal Procedure Legislation Amendment Bill 2007 amends several Acts and amongst other matters will allow courts to give sentencing indications and to identify sentence discounts, and abolishes reserve pleas after committals proceedings.

The Equal Opportunity Amendment Bill 2007 introduced a prohibition against discrimination on the basis of the new attribute of ‘employment activity’. The attribute is defined to describe the actions of an employee in asking reasonable questions or communicating concerns about their employment entitlements.

The Equal Opportunity Amendment (Family Responsibilities) Bill 2007 amends the principal Act to expand the circumstances that may constitute discrimination against parents and carers in employment and employment-related areas. A relevant employer must not unreasonably refuse to accommodate the parental or career responsibilities of a person offered employment.

The Freedom of Information Amendment Bill 2007 amends the principal Act to, amongst a number of other matters, remove certain application fees and to provide for a procedure for a person to be declared a vexatious applicant.

The Infertility Treatment Amendment Bill 2007 amended the principal Act to make it consistent with Commonwealth legislation enabling certain types of research involving embryos to be permitted provided it was approved by the regulator. The amendments allow women to donate eggs for purely research purposes.

The Justice and Road Legislation Amendment (Law Enforcement) Bill 2007 amended, amongst other Acts, the Police Regulation Act 1958 to allow certain types of photographs to be released to the media.

The Nuclear Activities (Prohibitions) Amendment (Plebiscite) Bill 2007 facilitates the holding of a State plebiscite in Victoria in the event that the Commonwealth Government took action to support or allow the construction of a nuclear facility in Victoria.

The Parliamentary Legislation Amendment Bill 2007 renamed and altered the functions of a parliamentary committee and re-named another committee. The Bill further made provision to increase the maximum number of members eligible to serve on a committee.

The Police Regulation Amendment Bill 2007 amends the principal Act to introduce alcohol and drug testing for members of the force and separated the positions of the Director, Police Integrity and the Ombudsman.

The Road Legislation Further Amendment Bill 2007 amends the principal Act to make provisions for fatigue management for drivers of certain heavy vehicles; create a new offence for deliberately entering level crossings when warning devices are operating or when a train is approaching; and to allow VicRoads to use information to locate missing persons to facilitate family reunion.

The Senate Elections Amendment Bill 2006 sought to amend the principal Act as a consequence of amendments to the Commonwealth Electoral Act 1918 to reduce the period for the close of the rolls for a Senate election.

The Summary Offences Amendment (Upskirting) Bill 2007 amends the principal Act to establish new offences of observing, capturing or distributing visual images of the genital or anal region of a person’s body.

The Wills Amendment Bill 2007 amended the principal Act to modify the test in respect to the matters the Supreme Court must be satisfied of before granting leave to someone to apply for an order authorising a statutory will to be made or revoked.

3. Private Members Bills

The Crimes (Decriminalisation of Abortion) Bill 2007 proposed amendments to the Crimes Act 1958 to abolish any common law offences of unlawful abortion.

The Health (Fluoridation) Amendment Bill 2007 proposed to amend the 1973 principal Act by preventing the addition of fluoride to a public water supply unless approved by a poll of voters in the relevant water supply district.

The Summary Offences Amendment (Body Piercing) Bill 2007 proposed to amend the Summary Offences Act 1966 to restrict the body piercing of a child without the prior consent of the child’s parent or guardian.

4. Statute Law Revision Bills

The Legislation Reform (Repeals No. 1) Bill 2007 was the first of a number of foreshadowed smaller statute law revision Bills that are to be progressively introduced to further remove spent and redundant legislation from the statute books. The Bill repealed 15 Acts amongst them, 3 principal Acts.

The Statute Law Repeals Bill 2006 repealed 282 spent or redundant Acts listed in a Schedule to the Bill. The repeals included 17 redundant principal Acts.

The Statute Law Revision Bill 2006 made minor corrections to 77 Acts. The amendments corrected minor typographical, spelling, grammatical and cross-referencing errors. The amendments included 3 corrections that were sought to be applied retrospectively.

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 extended periods. On occasion the Committee has needed to follow up requests for further advice with a courtesy reminder letter.

In the previous Parliament (55th) the Committee did not receive responses concerning two Bills, the Public Sector Acts (Further Workplace Protection and Other Matters) Bill and the Funerals Bill. In relation to the Funerals Bill the Committee commented on a delayed commencement provision and notes that the Funerals Act 2006 came into operation on 1 November 2007, approximately 15 months after it was introduced in the Parliament.

The results of the Committee’s work

One of the main functions of the Committee is to review Bills introduced into a House of the Parliament and to report to the Parliament on the use of certain legislative practices in those Bills. The heads of legislative scrutiny are listed in sections 17(a)(i) to (viii) of the Parliamentary Committees Act 2003. 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 2003 to 2007

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]

Scrutiny of Subordinate Legislation

Section 17(d) – Subordinate Legislation Act 1994

The Regulation Review Subcommittee held 9 meetings during 2007. During those meetings it considered 201 statutory rules. Of those statutory rules considered by the Subcommittee, 43 were accompanied by regulatory impact statements. The statutory rules examined by the Subcommittee during 2007 are shown at Appendix 5. The Committee did not make any adverse reports to Parliament during 2007 concerning regulations. However of the statutory rules examined during 2007, the Subcommittee had concerns with 6 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 2007 by mid-2008.

Section 17(e) – Environment Protection Act 1970

The Regulation Review Subcommittee did not consider any state environment protection policies or waste management policies during 2007 under this term of reference.

Redundant, Unclear or Ambiguous Legislation

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

In early 2007 the Committee was referred a new inquiry concerning the question of whether certain corporations laws should remain on the Victorian statute books following the referral of the State’s corporations powers to the Commonwealth government in 2001. The Committee expects to table its report late in 2008. The terms of reference of this inquiry, including the list of initial Acts identified for consideration, is shown as Appendix 7.

Other referrals to the Committee

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 2007 on any Act sought to be declared pursuant to the Co-operative Schemes (Administrative Actions) Act 2001.

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.

* Six months to 1 January 2008 actual expenditure of $219,628 or 47.8% of Budget.

Committee publications released during 2007

The Committee has published the following reports and papers in print and also on its website 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, August 2007

• Annual Review 2006, August 2007

• Report on the Legislation Reform (Repeals No. 1) Bill 2007, October 2007

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 2008

• Report on the Legislation Reform (Repeals No. 2) Bill 2007, February 2008

• Alert Digests on Bills introduced during 2008, from February 2008

• Reports to Parliament, Alert Digests No. 1 of 2006 & Nos. 1 to 16 of 2007, March 2008

• Annual Review 2007, Regulations 2007, mid-2008

• Redundant Corporations Laws Inquiry, December 2008

The Charter of Human Rights and Responsibilities Act 2006

Background

On 2 May 2006 the Attorney-General, the Hon. Rob Hulls MP introduced a Bill in the Legislative Assembly entitled the Charter of Human Rights and Responsibilities (the ‘Charter’). The Second Reading Speech was delivered on 4 May 2006 and the Act received Royal Assent on 25 July 2006. The Committee reported on the Charter in Alert Digest No. 5 of 2006.[13]

Part 2 of the Charter[14] prescribes well known human rights reflected in a number of international agreements and declarations concerning principles broadly described as civil and political rights. These principles include, amongst many others, the right to equal protection of the law, prohibition against torture and servitude, liberty of the person, freedom of expression and rights in criminal proceedings. The rights prescribed in Part 2 apply to natural persons and not to corporations.[15]

Other than the provisions in the Charter in respect to the duty of a ‘public authority’ (as defined by the Charter[16] ) to comply with Charter principles, the Act and the interpretive function of the Supreme Court the Act, came into operation on 1 January 2007. The remaining provisions commenced on 1 January 2008.

Parliament’s new functions and duties under the Charter

The Charter invests a number of duties and functions on the Parliament, the Committee and on members introducing Bills into a House of the Parliament. In brief these duties and functions are –

• Section 28, Statements of compatibility – A member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility (a ‘statement’) to be prepared in respect of that Bill and cause it to be laid before the House into which the Bill is introduced before delivering his or her second reading speech on that Bill. The use of the word ‘member’ clearly indicates that the tabling requirement also applies to private members Bills.

Note: Section 28 is not characterised as a constitutional ‘manner and form’ provision rendering any Act invalid for failure to comply with the procedural requirement imposed by the section. Indeed, section 29 of the Charter immediately clarifies the consequence of any such failure or oversight by providing that ‘a failure to comply with section 28 in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or any other statutory provision’.

• Section 30, Scrutiny of Acts and Regulations Committee – The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and must report to the Parliament as to whether the Bill is incompatible with human rights. The term ‘human rights’ is defined in section 3 of the Charter as the civil and political rights in Part 2.
  
  A footnote to section 30 of the Charter provides that there is a corresponding function on the Committee to report on statutory rules that are considered incompatible with human rights. This additional reporting function is found in a separate amendment to the Subordinate Legislation Act 1994.[17]

“Note: The amendments made by the Charter to the Subordinate Legislation Act 1994 include an additional procedural requirement (new section 12A) for the responsible Minister to prepare a human rights certificate in respect of a proposed statutory rule unless it is an exempt statutory rule such as court rules.”

• Section 31, Override by Parliament – This section of the Charter invests an override declaration power in the Parliament to pass legislation notwithstanding an Acts incompatibility with one or more of the Charter rights. Such an override declaration then extends to any subordinate instrument made under that Act. A member introducing a Bill containing an override must make a statement in the House in which the Bill is introduced explaining the exceptional circumstances that justify the inclusion of the override declaration.

An override declaration statement by a member must be made –

• during the second reading speech for the Bill that contains the override; or

• after not less than 24 hours’ notice is given of the intention to make the statement but before the third reading of the Bill; or

• with the leave of the House of Parliament at any time before the third reading of the Bill.

The section makes it plain that an override should only be made in exceptional circumstances. However, the section provides no guidance by means of a definition or otherwise as to what circumstances may be considered to be ‘exceptional’. In this respect it is instructive to observe the provisions of Article 4 of the International Covenant on Civil and Political Rights which provides –

Article 4.1 In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their obligations under international law and do not involve discrimination solely on the grounds of race, colour, sex, language, religion or social origin.

Note: The Covenant goes on to provide that no derogation may be made in respect to certain civil and political rights such as the right to life, the prohibition against slavery, torture and cruel and unusual punishment and a number of others. These are considered immutable and non-negotiable principles of human rights.

Were an exceptional circumstance to arise and an override passed by the Parliament then, to the extent of the declaration, the Charter does not apply to that provision. There are at least two consequences that flow from that, and they are, that the provision is not subject to judicial review by way of a declaration of incompatible interpretation by the Supreme Court[18], and a public authority is not bound by any obligation to act in a way that is compatible with a human right and not bound to consider relevant human rights in making a decision. Essentially, the override cloaks the provision with a Charter immunity or by-pass.

One balancing aspect of such an override declaration is that the relevant provision(s) sunset 5 years after commencement or at an earlier time if this is specified. Parliament however may re-new the override at any time.

The override declaration is not a ‘manner and form’ constitutional provision and no absolute or special majority is necessary for its effect to take effect, a simple majority is sufficient. As with the procedural requirements concerning statements of compatibility the section provides that a failure to make an override statement does not affect the validity, operation or enforcement of that Act or of any other statutory provisions.

New powers, functions and duties of the Supreme Court, the Attorney-General, Ministers and public bodies

The Supreme Court – Where no override declaration is in place the Supreme Court in vested with a power to make a declaration of inconsistent interpretation under the Charter. However, as with the failure to observe procedural requirements in sections 28 and 31 (see above) such a declaration does not render the Act or the provision ineffective. The clear purpose of all these ‘notwithstanding failure’ provisions is to preserve parliamentary supremacy over the Charter. The human rights model adopted by Victoria was never intended to create constitutionally entrenched rights. As in the case of the Human Rights Act 2004 (A.C.T.) the Victorian Charter is an Act of the Parliament and may be amended, re-enacted or repealed in the ordinary course of Parliamentary practice and procedure.

Public Authorities – In respect to government agencies and other bodies undertaking public functions the Act provides that it is unlawful for a ‘public authority’ to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human rights. Where a public authority breaches this duty the failure may be evidence in legal proceedings of administrative error but only in situations where a person has an existing avenue for relief or review other than under the provisions of the Charter itself.[19] The Charter however, provides that no award of damages may be made for a breach of the Charter but does not affect an award of damages under any other existing entitlement. The intent of the provision is not to found a new head of action for remedy absent any existing cause of action. That is, a breach of a Charter duty is not a new recognizable cause of action on its own.

The Victorian Equal Opportunity and Human Rights Commission – The Charter renames the Victorian Equal Opportunity Commission as the Victorian Equal Opportunity and Human Rights Commission (the ‘Commission’) and invests in it new functions broadly characterised as educative, reporting and reviewing and monitoring the Charter’s operation.[20] Further, the Commission may intervene in, and be a party to, any legal proceedings where a question of law arises that relates to the application or the interpretation of the Charter.

The Attorney-General – The Attorney-General has the right to intervene in, and be joined as a party to any legal proceedings in which a question of law arises that relates to the application of the Charter or the interpretation of a statutory provision in accordance with the Charter. The Attorney-General must cause certain reports of the Commission to be laid before the Parliament and must cause a review to be made of the Charter after 4 and 8 years of its operation. These reviews must be tabled in the Parliament.[21]

Ministers – Where the Supreme Court makes a declaration of inconsistent interpretation the Minister administering the statutory provision in respect of which the declaration is made, must within 6 months of receiving the declaration, prepare a written response to the declaration and cause a copy of that response to be laid before each House of Parliament and published in the Government Gazette.[22]

Committee issues Practice Note No. 2

In August 2007, the Committee adopted its second Practice Note. The adoption of this second Practice Note, as with the first one in October 2005, is intended to be advisory in character. The main purpose of Practice Notes are 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 first Practice Note covered a series of matters mainly concerned with the sufficiency of explanatory material to be found in the clause notes and the second Practice Note concerned two issues of on-going concern to the Committee being –

• the requirement under the Charter of Human Rights and Responsibilities Act 2006 that a Member introducing a Bill prepare a Statement of Compatibility with the Bill and to cause that Statement to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech;

• the assistance of clause notes provided in explanatory memoranda concerning amendments to Acts characterised as statute law revision amendments.

The Committee’s Practice Note is reproduced in Appendix 6.

Committee Website

The Committee continues 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 Microsoft Word formats. Further, the DPC site has a link to the Parliamentary Hansard site, giving easy access to second reading speeches and statements of compatibility (on Bills) tabled pursuant to Charter requirements.

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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