Scrutiny of legislation by the Senate
As a house of review, the Senate subjects legislation to additional scrutiny. Each bill that comes before the Senate is examined by the Scrutiny of Bills Committee, which is concerned to ensure that legislation does not impinge unduly on the fundamental rights and liberties of citizens, and that it observes certain legislative proprieties. The committee is concerned to ensure, for example, that any delegation of power conferred by an Act is subject to appropriate safeguards, that administrative decisions are made fairly and openly and subject to independent review, and that any new body set up by an Act is required to report regularly to Parliament.
When the committee identifies a potential problem with a bill, it alerts the Senate and follows the matter up with the responsible minister. Having considered the minister’s response, the committee then reports to the Senate. It is not the committee’s role to recommend particular action on a bill but to raise issues for the Senate’s consideration. Individual senators often take up concerns raised by the committee and draft amendments to the bill accordingly. These amendments are subsequently dealt with in the committee of the whole stage.
The Parliamentary Joint Committee on Human Rights operates in a similar way. Once a bill is tabled, the committee examines it to ensure it meets Australia’s human rights obligations, as set out in the seven core human rights treaties to which Australia is a signatory. The committee then reports to both houses of Parliament on its findings. If a problem is identified, the Parliament can consider whether the bill should be amended or even withdrawn.
In 1989 the establishment of the Selection of Bills Committee provided the Senate with a mechanism for regular examination of bills by its legislative and general purpose standing committees. The Selection of Bills Committee considers all bills before the Senate to identify any which are complex or controversial or which senators have indicated warrant further examination by a standing committee. Those bills so identified are referred for inquiry and report to a standing committee, usually within a short timeframe to avoid delaying passage of the bill.
Bills are usually referred to a legislative and general purpose standing committee which has responsibility for that particular portfolio area. The portfolios allocated to each of the eight legislative and general purpose standing committees can be found in Senate Brief No. 4, Senate Committees.
Standing committees have powers to call witnesses and to travel from place to place. When considering bills, the committees usually hold public hearings to question invited witnesses, including the minister, departmental officials and various interest groups representing people who may be affected by the bill or who may be able to provide expert advice on the subject matter. Through this process, previously unforeseen problems may be identified or misunderstandings about the impact of the bill resolved. Senators have an opportunity to question officials who may be responsible for implementing the bill when it is passed. Specific amendments may be considered by the standing committee. Evidence given at the hearing may also result in amendments being drafted subsequently.
The standing committee does not itself amend the bill but it may recommend particular amendments to the Senate. It may also recommend that the bill be passed without amendment. The standing committee’s report is considered when the bill again comes before the Senate.
Since 1990 approximately 30 per cent of bills have been referred to standing committees by this process, enabling more detailed consideration of bills.
In 1994 the House of Representatives also began the practice of referring bills to its standing committees, on the motion of a minister, for advisory reports.