Chapter 16 - Committees
Legislative Scrutiny Committees
Scrutiny of Bills Committee
The Senate Standing Committee for the Scrutiny of Bills is established
pursuant to standing order 24, which provides
(in part):
At the commencement of each Parliament, a
Standing Committee for the Scrutiny of Bills shall be appointed to report, in
respect of the clauses of bills introduced into the Senate, and in respect of
Acts of the Parliament, whether such bills or Acts, by express words or
otherwise:
-
trespass unduly on
personal rights and liberties;
-
make rights, liberties or
obligations unduly dependent upon insufficiently defined administrative powers;
-
make rights, liberties or
obligations unduly dependent upon non-reviewable decisions;
-
inappropriately delegate
legislative powers; or
-
insufficiently subject the
exercise of legislative power to parliamentary scrutiny.
The committee has six members, three nominated by the Leader of the
Government in the Senate and three nominated by the Leader of the Opposition in
the Senate or by any minority groups or independent senators. A senator
nominated by the Leader of the Opposition in the Senate is the chair. In the
event of an equality of votes the chair has a casting vote. The committee’s
history, however, shows that the question of which party has a majority has
been of no significance to the operation of the committee.
Standing order 24 provides for the
appointment of subcommittees and the committee’s power to send for persons and
documents. The committee also has power to move from place to place and to meet
in private session and notwithstanding any prorogation of the Parliament or
dissolution of the House of Representatives. The committee is authorised to
appoint a legal adviser to assist the committee. Since its inception, the
committee has always taken up the opportunity to engage such assistance.
When a bill is introduced in either House of the Parliament, copies are
provided to the committee and to the committee’s legal adviser for examination
and report. The legal adviser examines each bill and provides a written report
to the committee in respect of each of the bills, advising whether or not they
offend (or may offend) against the committee’s principles and, if so, in what
way.
On the basis of the legal adviser’s report, the committee’s Alert
Digest is drafted. That document, which is generally tabled on Wednesday of
each sitting week, deals with all bills introduced in the preceding week and
sets out the committee’s comments on each bill. Adverse comments are set out by
reference to the relevant principle. When the Alert Digest is tabled in the
Senate, any comments on a bill are also formally drawn to the attention of the
minister responsible for the bill, who is invited to make a response to the
committee’s comments. Given the time constraints which the legislative process
generates, these comments are requested by the following Tuesday, in order that
the committee can consider them on the following day, at its regular weekly
meeting.
If the committee receives a response from a minister, that response is
reproduced in a subsequent report. In its reports, which are also tabled on a
weekly basis during sitting periods, the committee re-states its concerns about
a bill, refers to the relevant ministerial response and then makes any comments
it considers appropriate, including any differences between the committee’s view
and that of the minister. In reporting to the Senate, the committee expresses
no concluded view on whether any provisions offend against its principles or
should be amended. These are regarded as matters for the Senate to decide. The
committee may report that ministers have given undertakings to initiate
amendments of legislation to conform with the committee’s principles.
The committee
may act on requests by senators to examine particular aspects of bills before
the Senate, but does not consider amendments moved to bills unless they are
made (statement by the chair of the committee, SD, 19/11/2002,
pp 6744-5).
Amendments are often made to bills in the Senate as a result of the
committee’s comments.
Particular
inquiries relating to the content of legislation may be referred to the
committee by the Senate (3/9/1997, J.2419; 10/12/1998,
J.374; 28/6/2001, J.4439; 25/3/2004,
J.3230-1; 29/11/2004, J.123). For the purposes of such
inquiries the Senate may authorise the committee to hold public hearings (29/9/1997,
J.2537; 1/9/1999, J.1626; 21/3/2002,
J.269; 22/6/2004, J.3611). The committee may also make
special reports on aspects of legislation (24/3/2004, J.3220; 4/12/2006, J.3226).
For further information on the history and operation of the committee,
see Ten Years of Scrutiny, the proceedings of a seminar to mark the
committee’s tenth anniversary, 14/10/1992, J.2907.
For the difficulty presented by national uniform legislation, see
Chapter 15, Delegated Legislation, under that heading.
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