Role of the Committee

[Overview] [History] [Role of Subcommittees] [Scrutiny of Bills] [Scrutiny of Regulations]

Overview

SARC's major areas of responsibility include the scrutiny of bills introduced into Parliament, the scrutiny of regulations and the review of redundant, unclear or ambiguous legislation. SARC also receives references from Parliament or by Governor-in-Council Order. These references typically require SARC to review an Act or issue concerning an Act and to report to Parliament.

SARC's functions are set out in section 17 of the Parliamentary Committees Act 2003 which provides as follows:

17. Scrutiny of Acts and Regulations Committee

The functions of the Scrutiny of Acts and Regulations Committee are –
(a) to consider any Bill introduced into the Council or the Assembly and to report to the Parliament as to whether the Bill directly or indirectly –

(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 Privacy and Data Protection Act 2014;
(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 2000;
(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;

(b) to consider any Bill introduced into the Assembly or Council and to report to the Parliament –

(i) as to whether the Bill directly or indirectly repeals, alters or varies section 85 of the Constitution Act 1975, or raises an issue as to the jurisdiction of the Supreme Court;
(ii) if a Bill repeals, alters or varies section 85 of the Constitution Act 1975, whether this is in all the circumstances appropriate and desirable;
(iii) if a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue;

(c) to consider any Act that was not considered under paragraph (a) or (b) when it was a Bill –

(i) within 30 days immediately after the first appointment of members of the Committee after the commencement of each Parliament; or
(ii) within 10 sitting days after the Act receives Royal Assent —

whichever is the later, and to report to the Parliament with respect to that Act or any matter referred to in those paragraphs;
(d) the functions conferred on the Committee by the Subordinate Legislation Act 1962;
(e) the functions conferred on the Committee by the Environment Protection Act 1970;
(f) the functions conferred on the Committee by the Co-operative Schemes (Administrative Actions) Act 2001;
(fa) the functions conferred on the Committee by the Charter of Human Rights and Responsibilities;
(g) to review any Act in accordance with the terms of reference under which the Act is referred to the Committee under this Act.

History

Since 1956 Victoria has had a Parliamentary Committee with responsibility for scrutinising regulations. The first Victorian Scrutiny Committee was set up under the Subordinate Legislation Subcommittee Act 1956, giving recognition to the importance of Parliamentary scrutiny of subordinate legislation. By contrast no such recognition was given to the scrutiny of Bills and Victoria did not have a Committee performing this function until 1992.

The first proposal for a Victorian Parliamentary Scrutiny of Bills Committee was made in 1984 by the Legal and Constitutional Committee. In 1987 and three years later in 1990, the Legal and Constitutional Committee again called for the establishment of a Scrutiny of Bills Committee. In 1992 the Hon. Mark Birrell, MLC, introduced a private members bill to establish a scrutiny committee. However the bill did not complete its passage through Parliament and it lapsed with the calling of the 1992 October elections. In November 1992 the Parliamentary Committees (Amendment) Act 1992 was passed with the aim of creating a more effective and efficient Parliamentary Committee system. The Parliamentary Committees (Amendment) Act 1992 introduced a new section 4D into the Parliamentary Committees Act 1968 and the Scrutiny of Acts and Regulations Committee was created as an all-party Joint House Committee.

This was the first time that a Victorian Parliamentary Committee was given responsibility to examine Bills with power to report to Parliament on provisions in any Bills which raise issues of concern within the terms of reference given to SARC. This marked a milestone in the protection of human rights and freedoms in Victoria with SARC having responsibility to comment, amongst other things, on any Bill which trespasses on rights or freedoms.

Our task requires a difficult balance to be struck between losing the respect and support of colleagues and officials on whose co-operation we are ultimately dependent to have any effect and, on the other hand being regarded either as a rubber stamp of the executive or a powerless irrelevance.

Striking this balance effectively depends on the dedication of our Members and their commitment to the liberties our terms of reference seek to uphold.

The Hon. David Caygill MP
Fourth Australasian Conference on Delegated Legislation, 1993

Role of Subcommittees

While all members of SARC (sometimes referred to as the Full Committee) are involved in the scrutiny of bills, other SARC functions are carried out by Subcommittees consisting of various members from the Full Committee. In the same way as the Full Committee consists of Upper and Lower House members, Subcommittees also consist of members from both Houses. While a Subcommittee has all the powers and privileges of a Full Committee it cannot report directly to Parliament. At the conclusion of a Subcommittee's investigations, it reports to the Full Committee. The Full Committee may adopt or reject the Report or part of it or make such modifications as it thinks necessary - section 32(4) of the Parliamentary Committees Act 2003.

Scrutiny of Bills

As mentioned above all members of SARC are involved in the scrutiny of Bills. SARC examines all Bills introduced into Parliament. There is no exception with regard to the type of Bills SARC may scrutinise.

Once the Second Reading Speech for a Bill is completed, administrative staff from SARC collect copies of the Bill and Second Reading Speech from the Procedures Office of the Legislative Assembly or the Legislative Council. The Senior Legal Adviser then commences careful examination of all the clauses and schedules of each Bill. The time for scrutinising bills varies from overnight to five months. It is the practice for resumption of debate on Bills introduced into the Legislative Assembly to be adjourned for two weeks. This is also generally the practice in the Legislative Council, although not always. This usually gives SARC about two weeks to analyse the Bills. In some cases sitting dates allow for a longer scrutiny period. For example, sitting dates may provide for Parliament to meet for one to two weeks and then adjourn for a week. When this occurs SARC has three to four weeks to examine the Bills.

After careful scrutiny of the contents of a Bill, SARC may comment on its provisions in a report, known as an Alert Digest, tabled in both houses of Parliament. The standing practice of SARC (except in the case of urgent meetings) is to meet on the Monday afternoon immediately prior to the Tuesday of a sitting week. The Senior Legal Adviser presents the Alert Digest to SARC members, making a verbal presentation on major issues of concern. SARC members then decide whether it is appropriate for SARC to comment on any of the Bills. The comment may simply be that SARC will seek further advice from the particular Minister. After considering the Bills, SARC members consider ministerial correspondence and authorise publication of these letters in the Alert Digests. Once SARC members have authorised the Alert Digest it is ready for tabling in both houses of Parliament. Alert Digests are published on SARC's website within 48 hours of tabling.

In deciding whether to comment on a Bill, SARC is guided by the terms of reference (or scrutiny principles) set out in sub-sections 17(a) and (b) of the Parliamentary Committees Act 2003. These scrutiny principles allow SARC to look for such things as trespasses to rights and freedoms and inappropriate delegation of legislative powers. Under section 17(b) SARC plays a watchdog role by commenting upon any provision which repeals, alters, varies or raises an issue concerning the jurisdiction of the Supreme Court of Victoria.

Scrutiny of Regulations

The Committee is responsible for examining regulations to ensure that they do not exceed the powers conferred by an Act and do not unduly trespass on rights and freedoms. The Committee checks the regulations against the heads of review contained in section 21 of the Subordinate Legislation Act 1994. While the Committee focuses on the principles contained in section 21, it also ensures that there has been compliance with the practical or procedural requirements of the Subordinate Legislation Act 1994. Substantial contravention of the practical requirements of the Subordinate Legislation Act 1994 in fact constitutes a head of review in section 21 of the Act. If the regulations do not comply with the procedures or the principles in section 21 of the Subordinate Legislation Act 1994, the Subcommittee may report to Parliament and recommend that the regulations be disallowed.