Scrutiny of Acts and Regulations Committee
Discussion Paper No. 1 on the Operation
of Section 85 of the Constitution Act 1975
Introduction
This discussion paper on the Scrutiny of Acts and Regulations
Committee’s experience in relation to Section 85 of the Constitution
Act 1975 is designed to be informative and stimulate thought. This
may assist the Committee in its work in the potentially explosive areas
of constitutional law, policy and politics. If appropriate and necessary,
it may also enable some law reform to proceed in these areas.
The Scrutiny of Acts and Regulations Committee has an obligation
to examine the use of Section 85 provisions in Bills before the Parliament.
Its task is to assess whether the use of a particular provision is appropriate
and desirable in the circumstances. In most cases, the Committee has found
that the use of the provisions is appropriate and desirable in the individual
circumstances of the Bill.
The Committee is composed of members from all three parties.
Almost all findings of the Committee have been achieved with consensus.
The Committee is conscious of the fact that both Liberal
and Labor Governments have used the practice of inserting Section 85 provisions
into Bills. In some cases, the use is trivial, in others, the use may
be of serious concern. The Section 85 provisions which provoke debate
in Victoria are typical of provisions used in legislation in every State
in Australia as well as the federal jurisdiction.
The fact that the provisions are used frequently does not
necessarily make them desirable. However, clearly there are cases where
restrictions in the access to the courts is in the public interest, for
example, in the introduction of an Administrative Appeals Tribunal to
which litigants must go before approaching a court.
The Committee seeks your views on the use of Section 85
provisions. The Committee seeks your comments so that it may be better
equipped to undertake its statutory task of assessing these provisions.
After the consideration of comments, it may be appropriate for the Committee
to advise the Parliament as to whether there are better or more effective
ways of dealing with such matters.
Victor Perton MP
Chairman
Scrutiny
of Acts and Regulations Committee
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