Committee powers and sanctions
A number of suggestions for amendments to existing wording in the terms
of reference or suggestions for additional provisions have been made to the
committee in the course of this inquiry. The content of the committee's terms
of reference is naturally an area of focus for the committee and it welcomed
the thought that submitters gave to these issues.
Comments on the existing terms of reference
Before considering suggestions for changes to standing order 24, the
committee notes that it was pleased to receive quite a number of general
comments made in submissions supporting the committee's work, which the
committee takes as a positive reflection on the terms of reference.
In addition, Professor James Allan observed that 'your present remit covers
everything that needs to be covered and is wholly appropriate, in my view.'
A more specific comment was received from the Administrative Review
Council in relation to subparagraph 24(1)(a)(iv), when its Chair observed that
...recognises the ongoing need for the Committee to
scrutinise and report to the Senate on legislative clauses which, among other
things, inappropriately delegate legislative power.'
In fact, other than the suggestions made for standing order 24(1)(a)(i),
no criticism or suggestions for changes were made to the other components of
the committee's terms of reference outlined in standing order 24(1)(a). This
meant that the nature of the proposals for amendments to the terms of reference
were suggestions to improve the committee powers, either generally or in
relation to suggested sanctions for non-compliance with its scrutiny
Sanctions and related suggestions
One theme apparent from submissions was in response to the limited
sanctions presently available to the committee to support its work to ensure
that bills meet a minimum standard in relation to scrutiny issues. Currently,
the terms of reference do not contain any sanctions for non‑compliance.
The only option available to the committee is to publicise its views on
provisions, for which the committee relies on its Alert Digests and Reports.
Other committees have different options available to them. For example,
due to the nature of the delegated legislation it considers, the Regulations
and Ordinances Committee has the ability to seek the disallowance of
instruments that do not meet the principles outlined in standing order 23. All
legislative and general purpose Senate committees have the power to send for
persons and documents in the context of conducting their work in public, which
is authorised under standing order 25(14).
As a result of the lack of sanctions in the terms of reference, a number
of suggestions were made to the committee with a view to strengthening the
committee's ability to achieve its objectives as set out in standing order 24.
Committee to table instances of a
lack of response
A key aspect of the committee’s work requires the provision of
information from proposers of bills, especially those from the government. At
some points of the committee’s history Ministers have regularly failed to
respond to the committee when requested to do so.
It has been suggested that:
Such a failure should be highlighted and censured by the
Committee, with the censure tabled in Parliament, as it reflects disrespect for
the parliamentary process.
Former Senator Murray goes further and suggests that the committee
should table a statement that the duty Minister must respond to during the
second reading debate with the intention that 'This would heighten Chamber
interest in the Committee's concerns, and give those concerns an immediacy they
lack at present.'
The committee strongly agrees that a failure to provide information it
requests is a significant concern. It agrees that if it is unable to obtain
the information after a reasonable period it should (after advising the
relevant minister of its intention) adopt the practice of notifying the Senate
of this circumstance, which could include advice that it is unable to finalise
its view because of the lack of a response from the relevant minister.
That the committee should, in appropriate cases, after a reasonable
period of time and after advising the relevant minister of its intention,
notify the Senate of any instance of a failure to respond to a request for
information relevant to Senate standing order 24(1).
That Senate standing order 24(1) be amended to confirm that the
committee should take the action described in the preceding recommendation.
Statements of compliance and
It was observed that, in effect, the committee's views of concern, as
expressed in its Alert Digests and Reports, amount to statements
of a bill's non‑compliance with scrutiny principles.
A number of submissions suggested that this be taken a step further by the
introduction of a requirement for bills to explicitly address whether scrutiny
principles have been considered in the development of the legislative
proposals. The Clerk of the Senate expressed the idea in this way:
One way in which the committee might seek to add to its
effectiveness in this area would be to investigate the possibility of placing
onus upon departments, when developing legislation, to record in accompanying
explanatory memoranda that the committee's concerns...have been taken into
account...A resolution of the Senate requiring the provision of a statement
that the committee's views have been considered might focus departments' collective
minds on addressing matters of concern to the committee and, at the same time,
provide an ongoing spotlight on those concerns.
The committee endorses the idea of implementing a measure which will
focus the attention of the executive on the impact of a legislative proposal
from a scrutiny perspective concurrently with its creation. This would clearly
have a positive effect on the committee's (and the Senate's) preventative
impact. It would also allow anyone reading an explanatory memorandum to readily
identify whether a bill has been developed with scrutiny principles in mind.
While the committee supports the idea, a prerequisite to implementing
the suggestion is that a comprehensive record of the committee's views about
scrutiny principles will first need to be publicly available.
As discussed in Chapter 7, Communication, the committee is intending to
formulate and publish documents to provide support to the executive to assist
departments to understand and address scrutiny principles. This approach is
intended to raise awareness of the standards expected by the committee, which
it hopes will mean that explanatory memoranda increasingly come to
comprehensively address all matters of concern to the committee.
In addition, the committee notes that the principle of comity means that
it should be considered whether both Houses of Parliament will need to agree to
a proposed approach before statements of compliance could be required (rather
than requested by the Senate). Nonetheless, the committee supports the idea in
principle and notes that it is a matter for further consideration at an
appropriate time in the future.
In addition to the suggestions discussed above, a number of powers
intended to enhance the committee's ability to discharge its function
effectively, but that are not in the nature of sanctions, were commended to the
Permanent inquiry powers
One such example of a possible amendment to standing order 24 relates to
inquiry powers. As noted by the Clerk of the Senate in her 2010 submission:
The committee has never possessed its own inquiry powers, but
has been granted them by the Senate on a case-by-case basis. This reflects the
general historical approach at the time the committee was established, though
it is more common now for Senate standing committees to have these powers.'
In line with the suggestion discussed earlier in this report that it is
desirable for the committee to undertake more inquiries into matters of
the committee is of the view that a permanent inquiry power is also desirable.
As explained by the Clerk of the Senate:
While they may not be needed frequently, the committee may
consider that these powers would add some flexibility to its proceedings.
This view is supported by a number of submitters, including former
Senators Mr Andrew Murray and Mr Bernard Cooney, the Law Council of Australia
and the Rule of Law Institute of Australia.
The committee therefore recommends that standing order 24(7) be updated
to allow it to meet in public, and therefore be able to conduct inquiries into
matters of principle without the need to seek further authorisation from the
Senate as a whole.
That Senate standing order 24 be amended to provide the committee with
permanent public inquiry powers in line with the relevant paragraphs of Senate
standing order 25 relating to legislative and general purpose standing
Ability to provide advice
This suggestion relates to ensuring that the committee is able to
provide advice on possible or proposed legislative provisions that have not yet
been introduced into the Parliament.
The committee agrees that this is an important ability, particularly as
in other parts of this report it encourages the provision at an early stage of
draft proposals (including publicly available exposure drafts) to it for
The committee is of the view that it has the ability to provide advice without
the need to amend standing order 24. The committee therefore remains ready to
be consulted and to provide advice as needed.
Minimum time for considering a bill
One possible amendment to standing order 24 that attracted considerable
comment in submissions is whether the committee should have access to a minimum
time in which to consider bills, with the implication that debate of a bill is
deferred until the minimum period of time has passed or the committee has
commented on the bill.
Although a minimum period of time is not granted to Senate legislation
committees inquiring into a legislative proposal as such,
the referral of a bill means that the bill cannot pass the Senate until the
committee has reported to the Senate, a date for which is set by the Senate.
By contrast, it has been a feature of the committee's history that its
work would not ‘hold up legislation'.
While the committee appreciates the support for its work that is inherent in
this suggestion, it is of the view that, on balance, current arrangements are
appropriate. In particular, the committee notes that:
the committee usually reports to the Senate each sitting week on
the bills introduced in the previous sitting week, however this is at the
committee's discretion as it can set its own timeframe for considering and
reporting on a bill (although noting that the passage of legislation is not
deferred pending its views); and
the committee is of the view that while its usual reporting
arrangement does not allow time for an in-depth analysis of bills against
scrutiny principles, it is valuable to the Senate and elsewhere for it to
operate as an 'early warning' system, which can report reasonably quickly and
alert others to the possible need for further examination of provisions of
concern from a scrutiny perspective.
Terms of reference to refer to
'provisions' of bills
In her 2010 submission, the Clerk of the Senate suggested an amendment
to standing order 24 to address a technical issue in relation to the
ability of the committee to consider bills after they have been introduced in
the House of Representatives and before they are received in the Senate. As the
Clerk of the Senate notes, although a mechanism is utilised by the committee
which 'avoids unnecessary delay', the committee endorses the Clerk's view that:
It may be worth making a technical change so that the
standing order refers to 'provisions of bills introduced in the Parliament',
making the reference and reporting functions, and their timing, more
The committee agrees with this suggestion and recommends that standing
order 24 be amended accordingly.
That Senate standing order 24(1)(a) is amended to include a reference to
the committee reporting in respect of the 'provisions of bills introduced in
General committee powers
Differences between general powers of standing committees and scrutiny
committees is apparent from the detail of the relevant standing orders, and
this issue was highlighted by former senator and then Chair of the Senate
Regulations and Ordinances Committee, Ms Dana Wortley. The matters of relevance to this committee
that have not been specifically dealt with elsewhere in this report are the
discretionary appointment of deputy chairs (rather than their election – c.f. standing
order 25 paragraphs (9)(a) and (b)), the power to print documents and evidence
(c.f. standing order 25(16)), and the power to authorise the broadcasting of
proceedings (c.f. standing order 25(19)).
That Senate standing order 24 be amended to provide that the Scrutiny of
Bills Committee deputy chair is elected rather than appointed (in line with
Senate standing order paragraphs 25(9)(a) and 25(9)(b)).
That Senate standing order 24 be amended in line with Senate standing
orders 25(16) in relation to printing and 25(19) in relation to broadcasting.
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