Constitutional and Legal Affairs - Senate Standing Committee - Reports - Scrutiny of Bills, November 1978

The Parliament of the Commonwealth of Australia

SENATE STANDING COMMITTEE ON CONSTITUTIONAL AND LEGAL AFFAIRS

Report on Scrutiny of Bills

November 1978

Brought up and ordered to be printed 23 November 1978

Parliamentary Paper No. 329/1978

SENATE STANDING COMMITTEE ON CONSTITUTIONAL

AND LEGAL AFFAIRS

REPORT ON

SCRUTINY OF BILLS

November 1978

Printed by C. J. T hompson, Commonwealth Government Printer, Canberra

MEMBERS OF THE COMMITTEE

Senator A. J. Senator G. J. Senator D. J. Senator J. B,

Senator C. J. Senator M. C.

Missen (Victoria) Chairman Evans (Victoria) Hamer, D.S.C. (Victoria) Keeffe (Queensland) G. Puplick (New South Wales) Tate (Tasmania)

Secretary: Mr M.D. Starr The Senate Parliament House Canberra.

CONTENTS

Page

CHAPTER 1 - INTRODUCTION 1

Terms of Reference 1

Submissions 2

Relationship of this Report to Delegation of Parliamentary Authority Report 2

Summary of Conclusions 2

CHAPTER 2 - THE NEED FOR SCRUTINY 5

CHAPTER 3 - THE CRITERIA OF SCRUTINY 8

Criterion (i) 11

Criterion (ii) 12

Criterion (iii) 13

CHAPTER 4 - THE PROCESS OF SCRUTINY 15

Type of Committee 15

Size and Composition of Committee 19

Committee Procedure 21

APPENDIX - List of submissions 24

CHAPTER 1 INTRODUCTION

1.1 Terms of Reference

By resolution of the Senate on 9 June 1978, the following matter was referred to the Committee: "(1) The desirability and practicability of referring all legislation introduced into the Parliament

to a committee of the Senate for the purpose of its examining the legislation and reporting to the Senate as to whether there are provisions in the Bills, whether by express words or otherwise, which:

a) place the onus of proof on a defendant in a criminal prosecution; b) confer a power of entry onto land or premises other than by warrant issued according to law c) confer a power of search of the subject, land

or premises other than by warrant issued according to law; d) confer a power to seize goods other than by warrant issued according to law;

e) purport to legislate retrospectively; f) delegate authority to amend any Act of the Parliament of the Commonwealth, or to create exemptions from the operations of any such

Act, by means of subordinate legislation; g) authorise administrative decisions affecting the rights and liberties of the subject with­ out prescribing objective criteria to

govern such decisions or without providing a right c appeal to a Court or competent Tribur h)

i)

af fee upon asso-of re

or othi and 1 ibe

admi

y of the subject by controls ivement, freedom of lom of expression, freedom .edom of peaceful assembly;

unduly on personal rights make the rights and ens dependent upon her than judicial decisions

(2) The Commit, toe report to the Senate by 15 November 1978."

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1.2 Submissions

Shortly after referral of this matter to the Committee, invitations were extended to a large number of individuals and organisations who were considered likely to be interested in this subject. In addition information was sought from high commissions and embassies concerning appropriate procedures adopted in other countries. A list of submissions received

is contained in the Appendix.

1.3 Relationship of this Report to Delegation of Parliamentary Authority Report Our terms of reference relate primarily to the civil liberty aspects of proposed legislation. But paragraphs (f) and (g) of our terms of reference also touch on matters which we were considering by virtue of our reference on the Delegation of Parliamentary Authority. In the course of

that examination we identified three general problem areas relating to delegation of authority, partly but not wholly covered by paragraphs (f) and (g) of our Scrutiny of Bills terms of reference. These problem areas are identified in our Report on Delegation of Parliamentary Authority, tabled today, as

(i) inappropriate delegations; (ii) uncontrolled delegations; and (iii) insufficiently defined delegations.

1.4 We argue in the Report on Delegation of Parliamentary Authority that proposed legislation should not be approved by the Parliament without particular attention being given to the question of delegations of these kinds, and we embrace in that Report the recommendation developed in the present Report in

favour of a Joint Committee on Scrutiny of Bills. Such a committee would have the function of scrutinising bills not only for their civil liberty aspects, but also for delegations which are inappropriate, uncontrolled or insufficiently defined. In recognition of the relationship between this Report and our Report on Delegation of Parliamentary Authority, they are being tabled simultaneously.

1.5 Summary of Conclusions We recommend that a parliamentary committee should be established to maintain a watching brief on all bills introduced into the Parliament so as to highlight those provisions which have an impact on persons either by interfering with their rights

or subjecting them to the exercise of undue delegations of power. Having been alerted by the committee to these

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provisions, the Parliament may nevertheless decide to attach greater significance to other countervailing considerations; but the committee will have served a useful function in enabling the Parliament to make a proper assessment of the conflicting

considerations to be resolved.

1.6 The success of such a committee will depend to a large

extent on being able to act expeditiously so as not to impede the Government's legislative program and having terms of reference which provide a clear statement of its functions. To this end we considered a variety of committee structures before concluding

that a joint committee would be the most appropriate vehicle. A joint committee would enable consideration of bills as soon as they are introduced into the Parliament, regardless of the House into which they are first introduced, and it would enable members

of both Houses to properly fulfil their obligations in respect of legislative scrutiny. Accordingly we recommend the establish­ ment of a new joint committee to be called the Joint Committee on Scrutiny of Bills.

1.7 To facilitate its work we recommend that it be a

small committee and state our specific preference for an 8 member committee, membership of which should be equally divided between the Senate and the House of Representatives. In order to ensure

that time will usually be made available for the committee to perform its task, while not impeding urgent bills, we recommend a mechanism which would require the Government to suspend Standing Orders on any occasion on which it wished to have a bill proceed through all stages in both Houses within 4

sitting days of its introduction into the Parliament without awaiting the report of the Joint Committee. In the event of such suspension of Standing Orders the committee would be empowered to continue its scrutiny and report to both Houses notwithstanding passage of the bill by Parliament and receipt of

the Royal Assent.

1.8 Having considered various alternative formulations, we conclude that the Joint Committee on Scrutiny of Bills should be established with the following general terms of reference:

To examine the clauses of all bills introduced into the Parliament for report as to whether they, by express words or otherwise:

(i) trespass unduly on personal rights and liberties;

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(ii) make rights, liberties and obligat­ ions unduly dependent upon insuffic­ iently defined administrative powers or non-reviewable administrative decisions; or

(iii) inappropriately delegate legislative power or insufficiently subject its exercise to parliamentary scrutiny.

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CHAPTER 2 - THE NEED FOR SCRUTINY

2.1 Many bills come before the Parliament which contain provisions that: . significantly interfere with personal rights and liberties;

. delegate powers which, arguably, should not be delegated at all;

. delegate powers to affect rights, liberties and obligations without providing an opportunity for the exercise of those powers to be reviewed either by Parliament itself or by an independent body; or

. delegate powers to impose obligations without any clearly defined guidance as to who is to impose them, upon whom and in which circumstances.

2.2 It may well be that such provisions are the product

of conscious and deliberate^Government decision and have been, as a result, extensively debated. But very often these provisions are not necessarily central to the policy objectives of the Government, do not as a result gain especial prominence, and in

the rush of legislation tend to slip through the Parliament without full debate or any debate at all. There is, as a consequence, a need to maintain a watching brief on provisions which either have an impact on persons by interfering with their

rights or amount to undue delegations of power. Whilst Parliament can never hope to foresee and provide for every contingency, we believe that it can do a good deal to implement

procedures to supervise the administrative decision-making process and to strengthen the position of the individual.

2.3 Examples of individual rights and liberties which have generally been regarded as warranting special protection are contained in both the Universal Declaration of Human Rights of 1948 and the International Covenant on Civil and Political

Rights of 1966. These rights range over the whole spectrum of human endeavour and include such things a s : freedom of speech and press, of assembly, association and movement, of religion and conscience, and the right to vote; freedom from arbitrary arrest, detention or deprivation of life; the right to a fair

trial and protection from cruel or unusual punishment; and freedom from discrimination on any ground of race, sex, language, creed, social origin or other status.

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2.4 These rights are included to a greater or lesser extent in most national bills of rights. Without contending that the presence of a Bill of Rights either in constitutional or legis­ lative form would in any way obviate the need for parliamentary

scrutiny, the absence of any form of Bill of Rights in Australia makes the need for an effective parliamentary means of safeguarding personal rights and liberties all the more necessary.

2.5 The conflicts which Parliament must resolve when determining whether to limit individual rights for the benefit of society as a whole will rarely be simple. The difficulties are readily apparent in the law enforcement area where a proper balance has to be maintained between two directly conflicting policies: the protection of individual rights and liberties and the community's need for practical and effective law

enforcement.

2.6 Parliament faces similar conflicts when considering provisions which contain undue delegations of parliamentary authority, whether or not they also raise civil liberty issues strictly so called. The need to achieve efficiently a particular administrative purpose may sometimes conflict with

the need to protect individual rights and on other occasions may conflict with democratic principles which require that some matters should either be the subject of principal

legislation or be subject to some form of parliamentary scrutiny.

2.7 For our present purposes, "undue" delegations of parliamentary authority can be conveniently classed as inappropriate delegations, uncontrolled delegations and

insufficiently defined delegations. (For a full discussion of these concepts see our Report on Delegation of Parliamentary Authority, tabled today). "Inappropriate" delegations comprise delegations of power which, by virtue of their subject matter, should not be delegated at all. An example of a provision which may in some circumstances be regarded as an "inappropriate"

delegation would be a provision enabling the amendment of an Act by means of subordinate legislation. By contrast, "uncontrolled" delegations are those which, however appropriate

their subject matter for delegation, contain insufficient provision either for scrutiny by the Parliament itself or for review by a judicial or quasi-judicial body of the action

taken under the delegated power. Insufficient provision for parliamentary scrutiny would include a failure to require that the instruments issued under a delegated power be tabled,

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or, more stringently, failure to provide adequately not only for tabling but for disallowance by the Parliament. Other forms that parliamentary control might take are mentioned in paragraph 3.18 below.

2.8 A delegation may be insufficiently defined if the extent of the power conferred on an official and the manner in which it is to be exercised is inadequately circumscribed by Parliament. The official will attempt to take account of all

relevant considerations and to disregard irrelevant ones but in the absence of statutory criteria an individual may often feel that a decision which is unfavourable to him, has been reached arbitrarily or quite independently of his interests.

If, in addition, the delegation is uncontrolled in the sense that there is no means of appealing against or securing the review of the decision, the individual will feel even more aggrieved.

2.9 The particular solution that we propose, to enable Parliament to maintain an effective scrutiny of provisions which either have an impact on persons by interfering with their rights or amount to undue delegations of power, is to

establish a Joint Committee of the Parliament to scrutinise all bills which come before the Parliament. Such committee would alert the Parliament to the civil liberty and undue delegation aspects of bills which the Parliament as a whole should examine with particular care before deciding whether or not to approve

them.

2.10 We do not perceive the committee's function to be a delaying or hindering one. It would simply highlight and clarify these aspects by reference to its governing scrutiny criteria. In so doing it would be a supplement to the aids which the Parliament already has at its disposal for scrutinising bills

such as explanatory memoranda provided by Ministers introducing bills and the bills digest provided for Members and Senators by the Parliamentary Library. Although similar provisions exist in legislation already on the statute books, the committee's

scrutiny would be restricted to proposed legislation.

2.11 Viewed in this light the Scrutiny Committee could only be a success and we warmly endorse the proposal implicit in our terms of reference.

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CHAPTER 3 - THE CRITERIA OF SCRUTINY

3.1 To a large extent the success of the proposed Scrutiny Committee will hinge on the appropriateness of its terms of ref­ erence. Accordingly, we have concentrated much of our time in this inquiry attempting to formulate a clear statement of the matters in proposed legislation which the Scrutiny Committee

should examine and bring to the attention of Parliament.

3.2 The first question to be resolved in formulating the criteria which would govern the committee's operation is whether its jurisdiction should be expressed in general and short as opposed to specific and lengthy terms. The alternatives are well illustrated by the limited number of general criteria which govern the operation of the Senate Standing Committee

on Regulations and Ordinances (as set out in paragraph 3.10) and the extended list of more specific criteria which form the terms of reference of our present inquiry (as set out in paragraph 1.1).

3.3 Whilst a list of specific criteria would provide a ready-made checklist of potentially offensive provisions for the guidance of drafting authorities, practical considerations such as the difficulty of expressing criteria with the required degree of precision and the serious omissions which might occur in an itemised list, are telling arguments

against specificity and in favour of more general criteria.

3.4 One example of the difficulties of precise articulation concerns paragraphs (b), (c) and (d) of our own terms of reference which advert to provisions in bills conferring powers of entry, search and seizure "other than by warrant issued

according to law". Such wording affords at best a partial protection of individual rights. It is generally accepted that in order to safeguard individual rights from a possible abuse of power, warrants should only be issued which apply to a

specific person, place or goods. However, general warrants may be issued under the Customs Act (and therefore be issued "according to law") which lack the desired specificity in naming the person, place or goods to which they apply.

Paragraphs (b), (c) and (d) of our terms of reference would therefore act as an insufficient safeguard of individual rights by permitting new bills to provide for general warrants.

3.5 A similar problem exists in relation to paragraph (a) of our terms of reference which adverts to a reversal of the onus of proof. There are other evidentiary provisions which may

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restrict personal rights without necessarily amounting to a change in the onus of proof. One example is an averment provision which deems an allegation of law or fact by a prosecutor to be prima facie evidence of the matter stated in

the allegation. Accordingly it is doubtful whether the wording of paragraph (a) sufficiently covers the mischief intended to be covered.

3.6 The problem of omitting important items from a list of specific criteria was convincingly demonstrated by the omission of such fundamental areas as privacy and the various forms of discrimination from our own terms of reference. The full significance of these omissions becomes apparent when the extended list of specific criteria is construed in the light of the legal maxim, expressio unius est exclusio alterius, which means that the express mention of one person or thing

suggests the intentional exclusion of other persons and things not so mentioned. Omissions from an extensive list are more likely to be viewed as deliberate exclusions than omissions from a more limited list.

3.7 Furthermore, the advantage of a list of specific criteria as a checklist for the guidance of drafting authorities, would depend to some extent on a regular up-dating of the list. Its very permanence as the terms of reference of the committee

would introduce an unwelcome rigidity.

3.8 For these reasons we concluded that the preferred course of action was to define the Scrutiny Committee's operations in terms of a limited number of general criteria.

3.9 As part of the general criteria, reference could be made to the International Covenant on Civil and Political Rights. The kind of reference which suggested itself to the Committee was

along the lines of the reference contained in the Law Reform Commission Act 1973 (which was inserted on the motion of the late Senator Greenwood on behalf of the then Opposition). Section 7 of that Act requires the Law Reform Commission to review laws

to ensure that they do not

"trespass unduly on personal rights and liberties and do not unduly make the rights and liberties of citizens dependent upon administrative rather than judicial decisions; and that as far as practicable such laws and proposals are

consistent with the Articles of the International Covenant on Civil and Political Rights".

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The Covenant sets out basic rights and is therefore useful in identifying heads of civil liberties. It is not as useful in specifying the exact scope of particular rights and liberties because those basic rights are qualified by many permissible

derogations and it may be that the derogations are so extensive that the Covenant would not provide adequate guidelines against which to check provisions in new legislation. For example the right of "peaceful assembly" is expressed as being subject

to "restrictions" imposed "in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights

and freedoms of others." We have not thought it appropriate therefore to recommend that bills be examined by reference to the Covenant.

3.10 Another alternative is to adopt criteria similar to those under which the Senate Standing Committee on Regulations and Ordinances has operated for many years. That Committee is required to scrutinise regulations and ordinances to ascertain:

(a) that they are in accordance with the statute;

(b) that they do not trespass unduly on personal rights and liberties;

(c) that they do not unduly make the rights and liberties of citizens dependent upon administrative rather than upon judicial decisions; and

(d) that they are concerned with administrative detail and do not amount to substantive legislation which should be a matter for parliamentary enactment.

Although we have in the end made, for present purposes, substantial alterations to the language of these criteria, they provide a useful basis for the Scrutiny Committee's terms of reference. In the next paragraph we set out in full our recommendation

concerning the Scrutiny Committee's terms of reference; subsequent paragraphs give a detailed explanation of our reasons for so recommending.

3.11 We recommend that the Scrutiny Committee be empowered to examine the clauses of all bills introduced into the Parliament for report as to whether they, by express words or

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otherwise:

(i) trespass unduly on personal rights and liberties;

(ii) make rights, liberties and obligations unduly dependent upon insufficiently defined administrative powers or non- reviewable administrative decisions;

or

(iii) inappropriately delegate legislative power or insufficiently subject its exercise to parliamentary scrutiny.

3.12 As a preliminary point it should be noted that it is an essential part of the terms of reference that only the "clauses of the bills" should be referred to the Scrutiny Committee. To refer the bill itself would be to formally remove the bill from further consideration in the Chambers.

Such a move would completely arrest this part of the Government's legislative program for the time it took the committee to conduct its scrutiny. In order to allow parallel consideration in both the Scrutiny Committee and the

Chambers we have thus recommended that the clauses of the bill, rather than the bill itself, be referred to the Scrutiny Committee.

3.13 Criterion (i) : trespass unduly on personal rights and liberties

This is rightly placed as the Scrutiny Committee's first criterion as it reflects the committee's primary concern which is the infringement of civil liberties. It is effectively the same as paragraph (b) of the terms of reference of the Regulations and Ordinances Committee which

is set out in paragraph 3.10 above. Most of the specific items in our own terms of reference would be subsumed under this criterion without importing the problems of definition associated with those paragraphs which we have already mentioned. Whilst the problems of definition have persuaded us that the more general expression, "trespassing unduly on personal rights and liberties" should be used in the formal

terms of reference, we certainly recognise the utility of a checklist of potentially offending provisions. A checklist in the form of a memorandum or similar informal document

rather than in the form of Standing Orders of the House of Representatives and the Senate, would provide the guidelines

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required and would ensure sufficient flexibility to enable their continuing evolution. Accordingly, we recommend that after the Scrutiny Committee is established it should develop and thereafter keep continually under review, a set of detailed

guidelines to alert drafting authorities to those matters considered by the committee to infringe its broad criteria.

3.14 Criterion (ii) : make rights, liberties and obligations unduly dependent upon insufficiently defined administrative powers or non- reviewable administrative decisions

Like paragraph (c) of the Regulations and Ordinances Committee's terms of reference (see paragraph 3.10), this criterion is concerned with possible abuse in the exercise of administrative power. Rather than focus on judicial review as does the Regulations and Ordinances Committee, our proposed criterion refers to the broader concept of "non-reviewability"

in order to take account of not only judicial but also quasi­ judicial forms of review of the kind performed by the Administrative Appeals Tribunal. In contrast to the notion of undue dependence on administrative decisions referred to

in paragraph (c) we expressly include within the ambit of criterion (ii) reference to "insufficiently defined administrative powers" to indicate that the nature of the problem is not so much that rights, liberties and obligations may be determined,or affected, by an exercise of administrative power as that the extent of the administrative power, or

the manner in which it is to be exercised, may be inadequately circumscribed.

3.15 Definition of the exercise of power could be accomplished by the prescription of objective criteria as required by paragraph (g) of our present terms of reference. Wide discretions exist in taxation legislation for example, which give rise to uncertainty as to the meaning and application of the law both for tax payers and their advisers.

Even where attempts are made in the legislation to indicate the circumstances which the Commissioner should take into account in exercising those discretions he is, in most instances, specifically authorised to also have regard to "such other matters, if any, as he thinks fit". The subject

of insufficiently defined administrative powers is considered in greater detail in Chapter 6 of our Report on the Delegation of Parliamentary Authority.

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3.16 The words "of citizens", which appear in the Regulations and Ordinances Committee's terms of reference, have been deleted as being unnecessarily limiting. The committee would obviously also be concerned with the rights,

liberties and obligations of non-citizens. It will be noted that the word "personal" which appears in criterion (i) has also been deleted. This has the effect of widening the ambit of criterion (ii) so as to cover collective rights,

liberties and obligations. The word "obligations" was included in recognition of the fact that an abuse of administrative power can have ramifications in relation to obligations as well as in relation to rights and liberties.

3.17 Criterion (iii) : unduly delegate legislative power or insufficiently subject its exercise to parliamentary scrutiny

Our third proposed criterion is concerned with possible abuse of the rule-making power. The delegations to be scrutinised under this heading can be distinguished from those under the second criterion as relating to matters which should be peculiarly the concern of Parliament. The Scrutiny Committee

in examining particular delegations of power by reference to criterion (ii) may conclude that they need not be reported to the Parliament because the subject matter is an appropriate

one to be delegated to an official and provision is made for review of the official's decision by a court or quasi-judicial tribunal. By contrast, there are some matters which should not be delegated at all or as to which the delegation is prima

facie unobjectionable but where the provision for scrutiny by the Parliament is insufficient. An example of a provision which may in some circumstances be regarded as an inappropriate delegation would be a provision to enable the amendment of

an Act by means of subordinate legislation.

3.18 The words "parliamentary scrutiny" in our criterion (iii) would encompass both the requirement of tabling and of disallowance. They would also enable the Scrutiny Committee to recommend that new forms of parliamentary scrutiny be employed. Amongst other things this might include requirements

that delegated legislation should only become operative by affirmative resolution of the Parliament; or that it should not become operative until, say, 21 days after the making

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thereof; or that draft subordinate legislation be made available to a parliamentary committee prior to its notification in the Gazette. These practices are to a greater or lesser extent, already operating in the British Parliament.

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CHAPTER 4 - THE PROCESS OF SCRUTINY

4.1 A threshold question to be considered in determining the ambit of the Scrutiny Committee's operation is whether the committee should examine all bills introduced into the Parliament or only those bills which are specifically referred

to it. We have no doubt that, for the committee to be effective, it must consider al1 bills which are introduced into the Parliament; otherwise, the service which the committee is designed to provide may be undermined by the direction of

its efforts to those bills which are least in need of attention. Having determined that all bills should be scrutinised as a service to the Parliament and that the committee should exercise a highlighting rather than a delaying function in respect of legislation, we believe it is essential that a means be found to enable effective scrutiny without necessarily

impeding the Government's legislative programme. This essential requirement has implications for the type of committee which is established, its size, and the procedures which it adopts.

Type of Committee

4.2 In assessing the most appropriate form of committee to undertake the envisaged scrutiny of legislation we have considered referral of this matter to one of the following committees:

(i) one of the 8 Legislative and General Purpose Standing Committees of the Senate, depending on subject matter;

(ii) an existing Standing Committee - either the Constitutional and Legal Affairs Committee or the Regulations and Ordinances Committee; or

(iii) a new committee specially established for the purpose - either a Senate committee or a joint committee of both Houses of the Parliament.

We have concluded that one of the third alternatives, that of a joint committee, would be the most appropriate and effective form of committee to provide the Parliament as a whole with the highlighting role with which we are concerned.

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4.3 The principal reason for not referring bills to the appropriate Legislative and General Purpose Standing Committee, depending on subject matter, is that scrutinising bills for civil liberty or undue delegation aspects would significantly derogate from their capacity to deal with other matters. For

the past eight years they have operated with considerable success as investigatory committees; inquiring into, and reporting upon, matters of national concern. Whilst it was always intended that some bills would be referred to the committees, it would be unfortunate if they were required to consider bills to the practical exclusion of their investigatory

inquiries, many of which inquiries are precursors to the introduction of bills or to the amendment of existing legislation. This would be a very real danger for some committees since it can be anticipated that bills would be regularly referred to some and rarely referred to others. Furthermore, we believe that concentrating the experience which would be accumulated from this type of exercise within a single

committee is a more efficient means of achieving the required degree of effective vigilance.

4.4 The two existing committees of the Senate which were initially considered as possible vehicles for this kind of scrutiny were the Constitutional and Legal Affairs Committee and the Regulations and Ordinances Committee. The idea of

the Constitutional and Legal Affairs Committee performing this function is superficially attractive because of the nature of the matters which are generally referred to it. Yet the possibility of this particular form of perusal becoming confused with general policy inquiries militates against the choice of this Committee, as does the substantial workload which the Committee already carries.

4.5 There are also considerations which suggest that the Regulations and Ordinances Committee might not be the most appropriate repository of the scrutiny function. Certainly it has provided a very valuable service to the Senate over

the course of 46 years in drawing its attention to provisions in delegated legislation of the type under consideration in this reference, and the nature of the scrutiny here proposed is essentially similar. Furthermore, although not in all cases a formal part of its terms of reference, the Committee or its staff does undertake a partial scrutiny of principal

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legislation - to determine whether a regulation is within power, to determine whether legislation empowers the making of instruments of a legislative character without some provision for disallowance by the Parliament; and to determine whether the regulation-making power enables amendment of the

Act by regulation.

4.6 Nevertheless we do not believe that the Regulations and Ordinances Committee should be required to take on this additional function. The first reason is the problem of overloading the Committee with the probable consequence that

the consideration of principal legislation would constantly overshadow the scrutiny of delegated legislation. The work of the Regulations and Ordinances Committee is so vital

that it should not be placed in jeopardy.

4.7 The common factor in our rejection of existing Senate committees as the appropriate scrutinising vehicle is that the new function would unduly derogate from existing functions or even overload those committees to such an extent that

their existing work would be imperilled. For this reason we believe that a new committee should be established specially for the purpose. Only a new committee could achieve the

objective of scrutinising effectively every bill introduced into the Parliament. The matters discussed previously, as to which Parliament's particular attention should be drawn, would receive undivided attention. The committee's experience would accumulate rapidly; accordingly its reports,

highlighting particular provisions without presuming to determine their appropriateness for enactment, could be expected to command respect.

4.8 One of the obvious corollaries of the Scrutiny Committee's function of focussing attention on particular provisions in bills is that in order to be of maximum utility it must be able to focus such attention before the passage of

the bill through Parliament. There is thus a need to ensure that bills are referred to any new parliamentary committee immediately upon introduction into the Parliament so that the committee's scrutiny does not delay the passage of

legislation.

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4.9 As most legislation is introduced into the House of Representatives this would pose obvious difficulties for scrutiny by a new Senate committee. Any scrutiny of a bill by a Senate committee whilst it was still being considered by the House of Representatives would run counter to the general parliamentary practice of not anticipating discussion

in the other Chamber. Scrutiny by a committee solely composed of Members of the House of Representatives would, of course, encounter similar difficulties in respect of bills introduced

into the Senate. We recognize that a procedure for concurrent consideration of a matter by the Senate and the House of Representatives has already been adopted in relation to the Budget. The general Budget debate in the Senate takes place on a motion to take note of the Budget Papers at the same time as the Budget debate in the House of Representatives is taking place on the second reading of the main Appropriation Bill. At the conclusion of the debate, the Senate resolves itself

into Estimates Committees to consider the "particulars of proposed expenditure" whilst the House of Representatives is considering the identical material in the form of the schedule to the Appropriation Bill. Notwithstanding the utility of this device to speed the passage of bills whilst subjecting them to maximum scrutiny, we believe that extension of this procedure to all bills so as to enable scrutiny of civil

liberty or undue delegation aspects is unlikely.

4.10 Even if such a procedure could be devised, however, a new Senate committee exercising this scrutiny function would not be able to provide a service to the Parliament as a whole. Members of the House of Representatives have the same

obligations as Senators to ensure that legislative provisions do not unduly trespass on personal rights and liberties; that they do not make rights, liberties and obligations unduly dependent upon insufficiently defined administrative powers or non-reviewable administrative decisions; and that they do not inappropriately delegate legislative power or

insufficiently subject its exercise to parliamentary scrutiny. It is therefore appropriate that they should be assisted to fulfil their obligations in the same manner as Senators by having their attention drawn to these issues by the Scrutiny Committee. Only a joint committee reporting to both Houses of the Parliament could enable these obligations to be met.

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4.11 Whilst a joint committee could commence its consideration of a bill immediately upon its introduction into the first House and report before its departure from that House, the opportunity would also exist for it to prolong its

deliberations without losing the opportunity to report its conclusions before the bill had passed the second House. Compared to a unicameral committee the joint committee would generally have twice as long to consider bills without imposing

significant delays in the Government's legislative program.

4.12 A further notable advantage of a joint committee would be that the Minister responsible for a bill could normally be expected to attend the committee to assist its scrutiny rather than the Minister representing the responsible Minister as now happens on most occasions with respect to

Senate Estimates Committees' examination of the particulars of proposed expenditure.

4.13 For all these reasons we have concluded that the Scrutiny Committee should be a joint committee of the Senate and the House of Representatives.

4.14 In arriving at this conclusion we were not unmindful of suggestions that an extra-parliamentary body such as the Law Reform Commission or the proposed Human Rights Commission should scrutinise all legislation of the Federal Parliament. We do see a possible scrutiny role for such bodies but not

in relation to bills during their passage through the Parliament. There is undoubtedly a great need for this kind of examination of the backlog of legislative provisions which have remained on the statute books notwithstanding the possible infringements of civil liberties or undue

delegations which they continue to authorise. But this is distinct from the highlighting function which it is intended that the Joint Committee should fulfil as a service to the Parliament in its primary function of scrutinising bills.

Size and Composition of Committee

4.15 We propose to comment at some length on the optimum size and composition of the Joint Committee on Scrutiny of Bills. In so doing we recognize that this decision is ultimately one for both Houses of the Parliament to make.

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Nevertheless we regard it as important in recommending the creation of a new committee to see that its size once created, does not prove an obstacle to the important tasks which it is designed to perform.

4.16 We believe that the Scrutiny Committee should be a considerably smaller committee than existing joint committees. Specifically, we recommend that it should have only 8 members. Since most of the practical problems of joint committees centre on the difficulty of organising meetings to suit all members, a small committee of this size would be a more manageable proposition. The ability to meet at short notice

is a necessary prerequisite if the Scrutiny Committee is not to impede the Government's legislative program as the committee will need to scrutinise urgent as well as ordinary bills and will need to cope with the customary rush of bills at the end of a period of sittings. Not only must the committee be small but there is also a good case for departing from

the time constraint which in the past has prevented joint committees and Senate committees meeting while the Senate is sitting.

4.17 The necessity for a small committee has implications for representation as between Chambers and as between parties. On the question of representation by the Senate and the House of Representatives, we favour equal representation. We are reinforced in this view by the example of the British Joint Committee on Statutory Instruments which has 7 members from

the House of Commons and 7 members from the House of Lords.

4.18 The nature of the scrutiny is unlikely to raise issues which would be contentious as between the parties represented on the committee. It is envisaged that the Joint Committee would operate in the same highly bipartisan way that characterises the current scrutiny of delegated legislation by the Senate Standing Committee on Regulations and Ordinances.

4.19 We recommend that the Scrutiny Committee be comprised of 4 Senators and 4 members of the House of Representatives with, in conformity with normal practice, a Government member as Chairman with a casting vote. In opting for an 8 member committee comprised of 4 Senators and 4 members of the House of Representatives we recognise that most joint committees

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have a majority of members of the House of Representatives. Furthermore, we recognise that any proportional increase in the representation of the House of Representatives would be likely to also involve an absolute increase in the size

of the committee. Accordingly, we have considered other membership options. A House of Representatives majority could be achieved without a significant increase in total size if

a 10 member committee were to be established consisting of 6 members of the House of Representatives and 4 Senators. As 4 Senators would seem to be the lowest practicable number, the ratio of 2 House of Representatives Members to 1 Senator which exists in some joint committees could only be achieved with a 12 member committee (8 members of the House of Representatives and 4 Senators).

4.20 Although we felt it necessary to consider the options of a 10 member or a 12 member committee, these were second and third preferences respectively. Notwithstanding its implications for representation of minority parties and

independents, we believe that a small committee is essential and have therefore recommended the establishment of an 8 member committee.

Committee Procedure

4.21 Throughout this Report we have stressed the need for the committee to act expeditiously. It is not sufficient to exhort the committee to do so. A mechanism must be devised which would enable the committee's scrutiny to be effective without impeding the Government's legislative program. We recommend the following mechanism:

(i) the clauses of all bills shall stand automatically referred,upon the moving of the motion for the second reading of a bill in the Chamber into which it is

first introduced, to the Joint Committee on Scrutiny of Bills for examination and report where necessary;

(ii) the Joint Committee shall be given the opportunity to report to the House of Representatives and to the Senate in respect of a bill prior to its passage

through the Parliament;

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(iii) in order to enable this option to be exercised the Standing Orders of both Houses shall provide that, subject to (iv), the Joint Committee shall have a minimum of 4 sitting days from the time the motion for second reading is moved in the first Chamber to the time it proceeds to third reading in the second Chamber in order to report to both Houses; and

(iv) if the Government wishes a bill to proceed to third reading in the second Chamber within 4 sitting days of the motion for second reading having been moved in the first Chamber without awaiting the report of the Joint Committee then

it must move for the suspension of Standing Orders. In the event of such suspension of Standing Orders the Joint Committee is empowered to continue its scrutiny and report to both Houses notwithstanding passage of the bill by the Houses of Parliament or receipt of the Royal Assent.

4.22 We believe that this procedure makes adequate provision for Government measures which are undeniably urgent whilst preventing the Government from avoiding the committee's scrutiny by passing off ordinary bills as urgent ones. As a disincentive to such action the procedure forces the Government

to acknowledge publicly that its decision to treat a matter as urgent may involve an avoidance of the committee's scrutiny. A decision by the Government to move for the suspension of Standing Orders would signal the possibility that the committee may be unable to report before the bill passes both Houses of

Parliament. Since this might well be a situation in which the committee would have reason to scrutinise the legislation with particular care, it is thought appropriate that in this situation, and this alone, the committee should be empowered

to continue its examination and report to the Parliament notwithstanding passage of the bill or receipt of the Royal Assent.

4.23 Finally, in order to perform its scrutiny effectively with the necessary expedition, we consider it essential to the success of the proposal that the new committee retain

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counsel. We have formed this opinion in the light of the long experience which the Regulations and Ordinances Committee has had in retaining counsel. The close similarity between the work of the two committees suggests that the retention of

counsel would be as vital to the proposed Scrutiny Committee as it has been to the Regulations and Ordinances Committee.

Parliament House Canberra

November 1978

ALAN MISSEN Chairman

APPENDIX

The Committee would like to thank the following individuals and organisations for their written submissions:

1. Professor R.G. Nettheim, Dean, Faculty of Law, University of New South Wales

2. Political Science Department, University of Melbourne

3. Professor Louis Waller, Sir Leo Cussen Chair of Law, Faculty of Law, Monash University

4. Mr Harry Evans, Secretary, Senate Standing Committee on Regulations and Ordinances

5. Constitutional Law Committee, Law Council of Australia

6. Queensland Council for Civil Liberties

7. Mr I.A.C. Wood, former Chairman, Senate Standing Committee on Regulations and Ordinances

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