Scrutiny of Acts and Regulations Committee
Discussion Paper No. 1
On the Operation of Section 85 of the Constitution Act 1975
Chapter Eight
General Observations and Discussion
8.1
In a nutshell, it may be said the Section 85 is simply about
accountability - the accountability of Ministers who give drafting instructions
to insert Section 85 clauses and/or the accountability of officers and
Chief Parliamentary Counsel who advise that such clauses are necessary
in a given Bill. There has been considerable public debate in respect
of the use of Section 85 provisions in recent legislation. Much of the
"fear" associated with Section 85 clauses stems from a lack
of information as to the reasons for their use. If such reasons were apparent,
then the Committee’s ability to scrutinise the provisions would be
enhanced as would Parliament’s ability to determine whether their
use is justified.
The Committee has particular obligations imposed on it under
Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968.
The Act was amended in 1992 to require the Committee to examine each Section
85 provision on its merits and form a view as to whether the provision
"is in all the circumstances desirable and appropriate".
In a sense, the Committee is being asked to assess whether the policy
as to the insertion of a particular Section 85 clause is "appropriate
and desirable". In that context, there will always be differences
of opinion as to what may be considered "appropriate and desirable"
in the circumstances. The Committee acknowledges the difficulty of the
task and accepts that at the end of the day it is up to the Parliament
to determine whether the use of a Section 85 clauses in a particular instance
is justified.
Nevertheless, the Committee requires a detailed explanation
of the particular reasons for the insertion of a given clause if it is
to fulfil its statutory duty. A better approach may be the provision of
a detailed explanation of the particular rights affected by the proposed
provisions, of any competing rights and the particular reasons for the
adoption of the policy in the first instance. Such a detailed statement
would be of great assistance to the Committee in its deliberations. When
such reasons are not given, the Committee is required to seek further
information and waste valuable Ministerial and staff time in providing
an explanation which should have been given in the first instance. Such
explanations would go some considerable distance toward defusing the debates
and controversy in respect of Section 85 provisions.
The onus is on Ministers and Ministerial Advisers to ask
themselves in the preparatory stages of the Bill: -
-
why is this clause being inserted?
-
who is being affected?
-
is it appropriate or really necessary that in this particular
instance, that the jurisdiction of the Supreme Court should be limited?
8.5
A Ministerial statement which merely asserts that a particular
provision is "necessary" without detailed justification
is not sufficient for the purposes of the Committee. Neither is the assertion
that the "existence
of interests and rights and claims for compensation based on them could
delay" a legislative program, a sufficient justification
for the insertion of such a clause. Indeed, the very existence of rights
in a particular situation may be a very compelling argument as to why
a particular clause which abolishes them is inappropriate. The protection
of such rights is fundamental to the Committee. To ensure that there remains
appropriate access to the Supreme Court is the best way of protecting
such rights.
The Committee is also concerned that at times it appears
that Section 85 provisions are being inserted as a result of "conservative’
drafting practices, rather than as a result of Ministerial policy. The
onus is on the draftspersons to ask themselves: - why is this clause being
inserted? is it really necessary?
8.7
The Committee must be truly persuaded of the merits of inserting
such a provision before reporting that it is appropriate and desirable
in all the circumstances. The Committee reiterates the view that careful
thought must and should be given to the insertion of such clauses in legislation.
The Committee accepts that in its experience over the previous two years,
the majority of clauses in respect of Section 85 have been desirable and
appropriate. However the Committee is concerned as to the significant
removal of rights in those instances where it reported adversely.
8.8
The entrenchment procedure is a two-edged sword. The beauty
of the entrenchment procedure is the loud warning bell which echoes throughout
the Parliament when a piece of legislation embarks on its passage through
the Houses. There is much merit in a procedure which informs the Parliament
of the seriousness of the task with which it is confronted. Conversely,
its pitfall is that it may be used inappropriately on particular occasions
and remove from the Supreme Court its ability to give citizens care, protection
and justice, the very purpose for which it was established; its raison
d’etre.
Scrutiny
of Acts and Regulations Committee
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