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Wednesday, 11 December 2002
Page: 7758


Senator McLUCAS (4:15 PM) —I present the 16th report of 2002 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 16 of 2002, dated 11 December 2002.

Ordered that the report be printed.


Senator McLUCAS —I move:

That the Senate take note of the report.

The Alert Digest and the report which I have just tabled will be the last scheduled for the present sittings. This would therefore seem a suitable occasion to review the activities of the committee over those sittings. The function of the Senate Standing Committee for the Scrutiny of Bills is to report on any provisions of bills introduced into the Senate which may, to use broad expressions, trespass against either personal rights and liberties or parliamentary propriety. In order to do this, the committee first identifies any such potential provisions and alerts the Senate to their existence. It then writes to the minister responsible for the bill asking for advice. Depending on the minister's response, the committee may accept that advice or continue to draw the Senate's attention to the provisions. The committee may also ask for further advice or briefings from departmental officers. In any event, the committee reports fully to the Senate on each of the steps which it takes. The committee has no direct power but seeks to draw to the attention of the chamber those provisions on which it comments. The Senate itself then decides whether the provision in question is acceptable. The committee operates in a consensual, non-partisan fashion removed from party political concerns.

In recent years the most important function of the committee, at least in terms of volume, has been the protection of personal rights and liberties. This pattern has continued during the present sittings, with the bulk of the committee inquiries relating to this area. The committee commented on a number of bills which, on the one hand, were to commence at some indeterminate time in the future or, on the other hand, were provided to commence retrospectively. In both these cases the explanatory memorandum should provide a full and clear explanation for the unusual commencement. For instance, one bill, which was to commence on proclamation at some unlimited future time, was dependent upon complementary state and territory legislation. In relation to retrospective bills, the general rule is that nobody should be affected adversely by such provisions. In most cases, this will not be a problem, with the explanatory memorandum advising that the effect is either beneficial or benign. However, other cases were more problematic. One bill provided for retrospective criminal offences and there were several taxation bills backdated to the date of the announcement of the intention to legislate, whether in the budget context or otherwise.

A number of bills provided for absolute and strict liability offences where the prosecution does not have to prove that the accused intended to offend. In such cases, the committee considers that the explanatory memorandum should justify the fairness of such provisions, with detailed responses for their inclusion. Provisions which reverse the usual onus of proof raise similar questions. Here the committee looks to see that the standard of proof placed on the accused is the lower evidentiary standard. Other provisions affecting personal rights which the committee mentioned during the present sittings included exclusion of matters from freedom of information provisions and abrogation of the privilege against self-incrimination. Committee discussions on personal rights and liberties may involve difficult judgments. One bill in particular provided for measures which would assist a business sector including many small operators, but which did this at the expense of long-established consumer rights. The question here was where to draw the line and I am pleased to report that the committee addressed this in its usual nonpartisan fashion.

Another important aspect of the committee's role of the protection of personal rights and liberties is to ensure that bills provide for appropriate review of administrative decisions, whether those decisions are made by a minister, a public official or a body. The initial presumption is that such decisions should be subject to merits review by the Administrative Appeals Tribunal or a similar specialised tribunal. In the current sittings the committee has commented on provisions which not only failed to provide for AAT review but also expressly precluded any other avenue of review or appeal. Another provision excluded judicial review under the Administrative Decisions (Judicial Review) Act. In relation to administrative decisions, the committee's role is also to check that the discretion in question has been properly defined. For instance, the committee comments on administrative discretions which are not guided or controlled by suitable objective criteria.

The other main function of the committee is to guard parliamentary propriety, more importantly in the context of the delegation of legislative power and parliamentary scrutiny of the exercise of such power. During the present sittings, the main concern here has been the incorporation of extraneous material with legislative effect as in force from time to time. The result of such provisions is effective abdication of legislative power—in two cases to anyone at all, and which may be exercised in most cases without even being subject to gazettal or tabling. In one instance, the minister advised the committee that the purpose of this was to save unnecessary administrative work. In another, the bill provided for the regulations to incorporate material as in force from time to time, thereby subdelegating legislative authority.

The committee also commented on several `plain vanilla' delegations of legislative power without parliamentary scrutiny. One of these related to the parliamentary review of a funding agreement, and another, which admittedly may have been an oversight, and hopefully so, provided for the disallowance of amending instruments but not of the original principal instrument. It is obvious that cooperation from ministers is crucial to the operations of the committee and I am pleased to report that this continued at a high level during the sittings. At its meeting this morning the committee considered a response it received from the minister yesterday in reply to an inquiry—it was sent only last Thursday. In this case, as in a number of similar cases, the minister and her staff made an extra effort to finalise the matter. The committee is grateful for this cooperation, which is made possible because ministers know that the committee operates on a nonpartisan basis.

Another aspect of ministerial cooperation is amendments sponsored by ministers to address matters raised by the committee. In previous tabling statements on behalf of the committee I have drawn attention to these pleasing developments, which may be increasing. Here again it is possible for ministers to do this because the committee does not concern itself with party political issues. This morning the committee held its annual sausage sizzle—which I am thinking about renaming a `barbecue', by the way—where members of the committee welcomed other senators, ministers, advisers and staff to a very relaxed and informal function to discuss legislative scrutiny. More than 50 people accepted, which is one more indication of the beneficial relationship between the committee and ministers.

Opposition senator interjecting


Senator McLUCAS —And there were very good sausages—yes, I acknowledge that. Can I take this opportunity on behalf of the committee to thank the secretariat of the committee, Mr David Creed, Ms Margaret Lindeman and Ms Bev Orr, for their excellent and efficient support and advice. Further, we would like to thank Professor Jim Davis, who was identified as a national treasure by the UK human rights committee when they were visiting earlier this year— something which I think we all agreed with. We thank him for his sound and reasoned advice to the committee over the last year. I also would like to place on record my thanks to the members of the committee, who I believe have all contributed significantly to the deliberations over the six months that I have been involved in the committee.

Finally, on less weighty matters, the committee would like to highlight a couple of provisions which would be worthy of inclusion in any legislative miscellany. They are all notes in the body of a bill which the committee scrutinised this morning and I will quote them verbatim. One reads:

This item repeals items that relate to an amendment that does not exist.

Another reads:

This item repeals items that contain amendments that had already been made.

Four others read:

This item repeals an item that omits words that do not exist in the relevant provision.

The notes also refer rather ominously to other `inappropriate amendments'. Another item renumbers section 160AQCO of an act as section 160AQCNCK, which we agreed this morning sounds a bit like a call sign from Star Wars. However, for the true connoisseur of bills, perhaps the crowning glory of this collection is an item, the purpose of which is to:

... repeal an item that omits words from a provision and inserts the identical words into the provision.

Question agreed to.