Scrutiny of Acts and Regulations Committee
Discussion Paper No. 1 on the Operation of Section
85 of the Constitution Act 1975
Chapter One - An Introduction and Brief History
1.1 Introduction
The purpose of this Discussion Paper is to provide a practical
overview of the Scrutiny of Acts and Regulations Committee’s current
experience of the use of Section 85 of the Constitution Act 1975.
The Discussion Paper provides factual material in respect of Section 85
based on the Committee’s experience over the past two years. It is
hoped that the material which forms the basis of this Paper will provide
sufficient evidence of the workings of Section 85 to provoke thought and
stimulate informed discussion. The Committee is keen to obtain input from
the community at large, Judges, academics, legal practitioners, Government
departments and agencies, as to the way in which Section 85 is utilised;
Any reaction or other comments are welcome.
1.2 Scope of the Discussion Paper
It should be noted that the scope of this Discussion Paper
is limited. The Discussion Paper does not purport to provide a detailed
analysis of the juristic and philosophical rationale underlying the use
of such provisions. In particular, it does not discuss the issue of whether,
as a matter of policy, it is appropriate and desirable to use such provisions.
That is a separate question and was the subject of a detailed Report tabled
by the Legal and Constitutional Committee in 1990. The relevant extract
of the Report is included in Appendix 1.
1.3 Parliamentary practice - past and present
This Committee is a bi-partisan committee. The Committee
is aware that the discussion of Section 85 clauses often generates heated
political debate. In that context, the Committee notes that Governments
of both persuasions have adopted the practice of using Section 85 provisions.
The Committee is required under section 4D(b)(i)(ii) and (iii) of the
Parliamentary Committees Act 1968 to examine each section 85 provision
and assess whether it is appropriate and desirable in all the circumstances.
This Discussion Paper is confined to a detailed analysis of section 85
provisions in the legislation introduced since the inception of the Committee
in November 1992.
The Attorney-General has provided to the Committee the following:
-
a List of statutes enacted by the previous administration
which affected the jurisdiction of the Supreme Court - See Appendix
2
-
a List of statutes enacted by the current administration
which affected the jurisdiction of the Supreme Court for the period
from October 1992 to February 1993 - See Appendix
3
The Committee has compiled the following:
1.4 Some issues of general concern to the Committee
The issues which are of concern to the Committee are discussed
more fully in Chapters [6], [7]
and [8]. However, in the main, some of the issues
may be briefly summarised as follows:
-
Are too many section 85 clauses being introduced? (Chapter
[6]);
-
Is the time right for a full and careful inquiry into
the issues raised by Section 85 clauses and an examination into the
reasons for their use? (Chapters [7] and
[8])
-
Section 85 clauses which abolish proceedings for compensation
in respect of alterations to reserved land - an emerging trend? (Chapter
[7]);
-
Is there a need for a change in drafting practices?
(Chapter [7]);
-
Is there a need for a change in Government policy in
respect of these clauses? (Chapter [7]);
-
Ministerial responsibility and conservative drafting
practices (Chapter [8]);
The Committee is aware there may well be other issues
which require ventilation. The Committee invites and welcomes written
submissions from all interested parties.
1.5 A Brief History
The Constitution Act 1975 was introduced and passed
by the Victorian Parliament in 1975. Its purpose was to re-enact the law
relating to the Constitution of Victoria in one comprehensive piece of
legislation. In addition to consolidating the existing law, particular
provisions of the Supreme Court Act 1958 were repealed and re-enacted
into the Constitution Act 1975. The Constitution Act 1975 accorded
constitutional status and protection to the Supreme Court of Victoria
for the first time in its history. That protection of the Supreme Court
was afforded by the entrenchment procedure set out in the Act.
1.6 The Entrenchment Procedure
In simple terms, the essential feature of the entrenchment
procedure was that a Bill which contained a provision which in any way
sought to change the operation of s.85, the provision of the Constitution
Act 1975 conferring jurisdiction upon the Supreme Court, required
passage through both Houses of Parliament by absolute majorities. Any
Bill which did not comply with the Act would simply be rendered void.
1.7 The inauspicious introduction of the entrenchment provisions
It is somewhat curious that these entrenchment provisions
were not the subject of any debate either in the Legislative Assembly
or the Legislative Council during the passage of the legislation. The
only passing reference made was by the Honourable J.W. Galbally. The comment
that he made was that:
An important matter is the status of the Supreme Court
and its independence.
That remark was made in the context of requesting additional
time to consider the Bill. No comment was made as to the specific effect
of the entrenchment provisions. Indeed, the Honourable A.J Hunt, the Minister
handling the Bill in the Legislative Council gave the following evidence
at a Public Hearing of the Legal and Constitutional Committee in 1989:
The Bill was basically a re-writing and a consolidation.
No attention was drawn to the fact that the jurisdiction of the Supreme
Court was being protected for the first time....No-one drew my attention
to the fact that the jurisdiction of the Supreme Court was protected
in a way that it had not been previously, so the issue was not debated
in either House, and the Bill passed.
1.8 The Unique Entrenchment procedure in Victoria
The entrenchment procedure in respect of the jurisdiction
of the Supreme Court is unique to Victoria. No other State has any such
procedure. No reason was given for its insertion into the legislation
at the time of its introduction. Nor was any attention drawn to the nature
of the changes in respect of the protection of the Supreme Court. The
reasons for its accidental birth, whether technical or otherwise are perhaps
best known to the Parliamentary Counsel who drafted the legislation at
the time. The reasons for the introduction of the Section 85 provisions
in the first instance remain of interest to those involved with its implementation.
1.9 The problems associated with entrenchment
Perhaps not surprisingly then, the problems which the entrenchment
procedure posed, only surfaced some ten years later when the question
of the operation of ss.18 and 85 was raised by an astute Mr Justice Tadgell
of the Victorian Supreme Court in a paper delivered at a Supreme Court
Judges' Conference in Brisbane. Litigation ensued in the Supreme Court
of Victoria which tested the validity of a number of Acts on the basis
that they detracted from the jurisdiction of the Supreme Court but had
not been passed by an absolute majority. For example, Mowra Pty. Ltd
V Roper (Unreported, 14 March 1989) questioned the validity of the
Planning and Environment Act 1987. The Parliament enacted the Constitution
(Supreme Court) Act 1989 which validated those Acts between 1975 and
1989 whose provisions may have, however remotely, affected the jurisdiction
of the Supreme Court.
1.10
However, the practical problems which had arisen in relation
to the operation of ss. 18 and 85 still remained unresolved. The issue
was one of identification. The essential problem was that it was frequently
unclear which Bills affected the jurisdiction of the Supreme Court. It
was therefore unclear which Bills were required to be passed by an absolute
majority. How could the Ministers responsible for the legislation, the
Clerks of the Houses of the Parliament and Parliamentarians know with
certainty when a Bill had to be passed with an absolute majority? This
was the main problem which the Legal and Constitutional Committee was
required to examine and solve in 1989.
1.11 The Report upon The Constitution Act 1975, Legal and Constitutional
Committee, 1990 - The solutions
It was against this background that the Legal and Constitutional
Committee was requested to report to the Parliament upon the operation
of the Constitution Act 1975. In March, 1990 the Legal and Constitutional
Committee presented its Report to the Parliament. The Committee was in
fact requested to examine a number of issues in relation to the Constitution
Act 1975 aside from the main problem referred to in paragraph 1.10.
However it is appropriate to examine the rest of the Report briefly.
1.12 Sections 18 and 85 - the provisions considered by the Legal and
Constitutional Committee in 1990
The Legal and Constitutional Committee was required to examine
the operation of ss.18 and 85. The relevant sections are extracted from
the Committee’s Report:
Sub-sections (2) and (3) of s.18 (so far as is relevant)
provide as follows:
(2) It shall not be lawful to present to the Governor
for Her Majesty’s assent any Bill -
(b) by which..... Part III..... may be repealed altered
or varied - unless the second and third readings of such Bill shall
have been passed with the concurrence of an absolute majority of
the whole number of the members of the Council and of the Assembly
respectively.
(3) Any Bill dealing with any of the matters specified
in paragraphs (a) and (b) of sub-section 2 which has not been passed
with the concurrence of an absolute majority of the whole number of
the members of the Council and of the Assembly respectively shall
be void.
Section 85
(1) Subject to this Act the Court (ie: the Supreme Court)
shall have jurisdiction in or in relation to Victoria its dependencies
and the areas adjacent thereto in all cases whatsoever and shall be
the superior Court of Victoria with unlimited jurisdiction.
(2) Repealed
(3) The Court has and may exercise such jurisdiction
(whether original or appellate) and such powers and authorities as
it had immediately before the commencement of the Supreme Court
Act 1986.
(4) This Act does not limit or affect the power of the
Parliament to confer additional jurisdiction or powers on the Court.
1.13 A Brief Discussion of the issues considered by the Legal and Constitutional
Committee
The first issue for the Legal and Constitutional Committee
was whether the jurisdiction of the Supreme Court should continue to be
entrenched. The Committee formed the view that the entrenchment by absolute
majority involved the recognition of the fundamental constitutional principle
of the Rule of Law; as such the majority of the Committee fully supported
the continuance of the entrenchment procedure.
1.14
Having found it appropriate that the entrenchment procedure
continue, the remainder of the Report sets out various recommendations
for the improvement of the practical and procedural difficulties which
had arisen in the context of the operation of ss.18 and 85. The main procedural
problem was that of identification of the Bills which in fact operated
to affect the jurisdiction of the Supreme Court. There was a need for
both Clerks of the House, the Presiding Officers and Ministers alike to
know which Bills altered s.85. Another problem of concern was that inadvertent
failure to pass a Bill by an absolute majority which affected the jurisdiction
of the Supreme Court rendered a Bill void. The fact that the entire Bill
would fail should an absolute majority not have been obtained when the
relevant clauses may have only had minor importance in comparison to the
overall content of the Bill also concerned the Committee.
1.15 The remedies proposed by the Legal and Constitutional Committee
The Committee proposed certain changes to remedy these problems.
They may be summarised as follows:
-
The responsible Minister to state the reasons for the
alteration to the jurisdiction of the Supreme Court;
-
The enactment of an express declaration clause;
-
Parliamentary Counsel should advise the relevant Minister
of any provision in a Bill which raises a potential issue in relation
to the jurisdiction of the Supreme Court;
-
There should be a Scrutiny of Bills Committee which
is required to report to the Parliament in respect of any s.85 provisions
in any Bills;
-
If any Bill contains a s.85 provision and has been passed
in breach of the absolute majority requirements, the provision
operating upon s.85 as opposed to the entire Bill, should be
void.
-
An amendment introduced to make it clear that compliance
of a Bill with the requirement for an express declaration clause does
not relieve it of the necessity to comply with the absolute majority
procedure;
-
Where a Bill is passed by an absolute majority, is the
subject of a Ministerial statement and contains an express declaration,
it should have a certificate to that effect by the Presiding Officers
on the face of the Bill;
-
An additional provision be inserted into the Constitution
Act 1975 to the effect that whenever jurisdiction is conferred
on a body, concurrent jurisdiction is also conferred on the Supreme
Court.
1.16 Table of Issues, Responses and Recommendations of the Legal and
Constitutional Committee
A Table which illustrates in abbreviated form the issues
considered by the Committee, its response and recommendations is included
in Appendix 5.
Scrutiny
of Acts and Regulations Committee
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