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Wednesday, 24 March 2004
Page: 21846

Senator CROSSIN (4:32 PM) —I present the third and fourth reports of 2004 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 4 of 2004, dated 24 March.

Ordered that the reports be printed.

Senator CROSSIN —I move:

That the Senate take note of the third report.

The third report of the Scrutiny of Bills Committee goes to the examination that we undertook on the quality of explanatory memoranda accompanying bills. As senators are aware, the Scrutiny of Bills Committee considers legislation to ensure that it complies with appropriate civil liberties and principles of administrative fairness. It does this by bringing to the attention of the Senate provisions of bills which may infringe upon personal rights and liberties or delegate legislative powers inappropriately or without sufficient parliamentary scrutiny.

In doing this, committee members place considerable reliance on the explanatory material that accompanies each bill, in particular the explanatory memorandum. The work of the committee, and the work of the Senate, is made more difficult where this material fails to explain clearly the operation and impact of legislative proposals. The result is that the committee has to initiate correspondence with ministers when its concerns could have been met by a proper explanatory memorandum. In most cases, after the minister responds to a request for further information, the committee is satisfied that the provisions meet its requirements.

In a series of statements to the Senate in 2003, the Scrutiny of Bills Committee expressed its concerns with the number of explanatory memoranda that failed to provide an adequate explanation of the bills that they accompanied. The committee has seen little noticeable improvement since then and therefore considers that a comprehensive report on this aspect of its proceedings is warranted. It is this report that I table today. The committee is concerned that it has to continually seek information from ministers that should be included in the explanatory memoranda. For example, it regularly seeks information on retrospective or delayed commencement provisions even though the Office of Parliamentary Counsel's drafting directions and the Department of the Prime Minister and Cabinet's Legislation Handbook specifically require explanatory memoranda to explain such provisions.

Other matters that regularly attract the committee's attention concern the quality of information provided on the delegation of powers, absolute and strict liability offences, legislation by press release and the reversal of the onus of proof. In most instances, the officer responsible for preparing the explanatory memoranda appears not to have complied with the requirements set out in the Legislation Handbook and the Office of Parliamentary Counsel's drafting directions. On other occasions, although information is provided, it is not sufficiently detailed to allow the committee to satisfy itself that the provisions do not affect personal rights and liberties. The only conclusion to be drawn is that quality control checks on the final explanatory memorandum are inadequate or ineffective. The reasons for this inadequacy cannot be explained solely by noncompliance with the requirements of the Legislation Handbook and the drafting directions or the guidance provided by those publications.

The committee is of the opinion that, although the Legislation Handbook provides guidance on a number of issues that would attract its attention and comment, it does not provide sufficient guidance to enable a departmental officer to determine whether provisions in a bill may infringe on the committee's terms of reference. The committee believes that an officer's understanding of the committee's position on provisions that affect personal rights and liberties would be enhanced if the handbook included examples of the types of matters that attract the committee's attention in the Alert Digest and reports.

Chapter 4 of the report identifies other influences on the quality of the final explanatory memoranda. The Office of the Parliamentary Counsel found that the responsibility for preparing these documents is generally delegated to staff inexperienced in legislative work who received little in the way of guidance and training from their supervisors. The other influence is the timing of the legislative program where the deadlines for lodging explanatory memoranda are the same as those for lodging bills with the Department of the Prime Minister and Cabinet, leaving little scope for any final polishing of explanatory memoranda.

The committee believes that steps should be taken to address the deterioration in the quality of explanatory memoranda. After considering the different influences impacting on the preparation of these documents, the Scrutiny of Bills Committee makes four recommendations in its report: further guidance should be provided in the Legislation Handbook on the matters that the committee wishes to see addressed in explanatory memoranda; all relevant information on the preparation of explanatory memoranda should be consolidated into the Legislation Handbook; an appropriately qualified person should check an explanatory memorandum before a bill is introduced into the parliament; and, consideration should be given to developing a course to train departmental officers in the preparation of explanatory memoranda.

The committee also notes that private senators' bills are generally accompanied by only a second reading speech. It was the committee's consideration that these bills would be assisted if they were accompanied by explanatory memoranda. The committee therefore recommends that the Department of the Senate develop a set of guidelines to assist senators with the preparation of private bills.

In conclusion, the report highlights the difficulties the committee has experienced in its examination of proposed legislation when the information provided in explanatory memoranda has not been of a quality to sufficiently explain the purpose and operation of the bills. However, the Senate will be pleased to note that it is not all bad news. On occasion the committee has commented on explanatory memoranda that have effectively addressed the content of the bill, one such example being the explanatory memorandum to the Customs Legislation Amendment Bill (No. 2) 2003, which did inform the consideration of legislation and we felt was adequate.

The committee presents this report with the expectation that it will improve the quality of the information provided in explanatory memoranda, resulting in greater transparency of the legislation introduced into the parliament. We will be sending a copy of the report to ministers, parliamentary secretaries, departmental heads and leaders of parties in the Senate. The committee strongly urges ministers to consider its concerns and to implement the recommendations contained in the report. Surely, if that is done and those recommendations are picked up, the work of the Scrutiny of Bills Committee will be not only assisted but enhanced. I commend the report to the Senate. I seek leave to continue my remarks later.

Leave granted; debate adjourned.