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Wednesday, 19 March 2008
Page: 1312

Senator ELLISON (4:31 PM) —I present the second report of 2008 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 2 of 2008, dated 19 March 2008.

Ordered that the report be printed.

Senator ELLISON —I move:

That the Senate take note of the report.

I seek leave to have my remarks incorporated in Hansard.

Leave granted.

The speech read as follows—

In considering the bills that come before it, the Scrutiny of Bills Committee places considerable reliance on the explanatory material that accompanies each bill, in particular the explanatory memorandum. If this material fails to clearly explain the operation and impact of the legislative proposals under consideration then the work of both the Committee and the Parliament is made more difficult.

The Committee remains concerned that it has to regularly seek information from Ministers that should be included in explanatory memoranda. This includes information on issues such as retrospectivity, delayed commencement, the rationale for absolute and strict liability offences, and declarations or exemptions under the Legislative Instruments Act 2003.

Examples are included in the Committee’s Second Report of 2008, whereby Ministers have provided explanations for strict liability, in the case of the Financial Sector Legislation Amendment (Review of Prudential Decisions) Bill 2008, and declarations under the Legislative Instruments Act 2003, in the case of the Infrastructure Australia Bill 2008, that are acceptable to the Committee.

Had these explanations been included in the explanatory memoranda to these bills the Committee could have satisfied itself that these provisions did not trespass unduly on personal rights and liberties or undermine parliamentary scrutiny, without recourse to the Minister.

The Legislation Handbook developed by the Department of the Prime Minister and Cabinet states that explanatory memoranda:

should not simply repeat the words of the bill or restate them in simpler language. The notes should explain the purpose of the clause and relate it to other provisions in the bill, particularly where related clauses do not appear consecutively in a bill. Examples of the intended effect of the clause, or the problem it is intended to overcome, may assist in its explanation.

Despite this direction, the Committee regularly sees explanatory memoranda that simply regurgitate words from the bill or fail to explain the purpose of potentially significant trespasses on personal rights and liberties, such as the imposition of absolute or strict liability.

If legislation is to be accessible to and understood by the Committee, the Senate and the community, it is essential that those preparing explanatory material include clearer and more fulsome explanations of provisions than currently occurs. The Committee urges Ministers to ensure that explanatory memoranda are put through a rigorous quality assurance process so that such materials can best meet their aim of assisting members of Parliament, officials and the public to understand the objectives and detailed operation of the clauses of the bill.’ (1999, Legislation Handbook)

Question agreed to.