23 November 2011
© Commonwealth of Australia 2011
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Referral of the inquiry
1.1 On 3 March 2011 the Senate referred the following matter to the Standing Committee for the Scrutiny of Bills for inquiry and report:
(1) The future direction and role of the Scrutiny of Bills Committee, with particular reference to whether its powers, processes and terms of reference remain appropriate.
(2) In undertaking this inquiry, the committee should have regard to the role, powers and practices of similar committees in other jurisdictions.
(3) The committee be authorised to hold public hearings in relation to this inquiry and to move from place to place.
(4) The committee be authorised to access the records and papers of the 2010 inquiry into its future role and direction.
Context for the inquiry
1.2 In early 2010, in anticipation of its 30th anniversary in November this year, the committee considered that it would be timely to conduct an inquiry into its future role and direction to review its work and the terms of reference in Standing Order 24. The committee has not encountered any difficulties that have significantly hindered its work and it does not hold any grave concerns about the operation of Standing Order 24. However, after 30 years it considered that it would be worth revisiting the framework for the scrutiny of bills to ensure that the committee is well placed to continue to work effectively for many years into the future.
1.3 Soon after the first inquiry commenced in 2010 the Legal and Constitutional Affairs Legislation Committee commenced an inquiry into bills which propose the establishment of a Parliamentary Joint Committee on Human Rights. As these bills had some relevance to the work of the Scrutiny of Bills Committee the committee deferred its inquiry. The inquiry lapsed when the new Parliament commenced and the current inquiry was then sought and referred by the Senate.
1.4 This interim report provides a broad summary of the issues the committee is examining. It is important to the committee that it has the opportunity to review the terms of reference thoroughly. Given this, and as a result of recent changes in the committee's membership, the committee recommends that the Senate agrees that it will present its final report and recommendations by 30 April 2012.
Recommendation: That the committee present its final report to the Senate by 30 April 2012.
Themes in evidence
1.5 To date, the Committee has received 36 submissions to its first inquiry and 21 submissions to the current inquiry. In addition to the information gleaned from submissions, the committee is drawing on its own experience to identify issues for further consideration.
1.6 The major themes of interest to the committee, which it intends exploring further, are:
The committee's approach to its work
1.7 The committee's long-standing approach to its work is to adopt a highly technical approach to the scrutiny of bills and over the years the committee has articulated a wide range of scrutiny principles that have arisen under the principles encapsulated in Standing Order 24. The committee's approach usually involves focusing primarily on the technical scrutiny issues: the detail of the policy of any particular bill is relevant only to the extent that it provides context for each provision.
1.8 An issue has been raised as to whether the committee should extend this 'traditional approach' so that it looks more closely at issues of policy as relevant to undertaking the work outlined in Standing Order 24 and whether the committee should offer a stronger view about potentially unsuitable provisions.
1.9 The committee agrees that it is relevant to consider its approach to its work; the scope of Standing Order 24 in this respect; and the issue of whether to extend its 'traditional approach' of focusing purely on technical scrutiny to include some policy consideration. In doing so, issues of relevance include:
- the ways in which the committee's work has evolved since it commenced (for example, the committee's comments are now more direct when commenting on possible aspects of concern from a scrutiny perspective than when the committee first commenced);
- the fact that, currently, the committee's suggestions for addressing scrutiny issues of concern are often adopted; and
- that the committee has always had the scope to consider policy issues and, indeed, on occasions it has cautiously explored the policy of some major scrutiny areas (such as its 2004 inquiry into search and seizure powers, which was then used to form the basis of the government's Guide to framing Commonwealth offences, penalties and enforcement powers).
1.10 The issue of the committee's approach to its work will be explored in further detail in its final report.
Framework bills and national scheme legislation
1.11 The apparent increase in the number of framework bills and bills seeking to implement national schemes is also of interest to the committee as these type of bills frequently give rise to scrutiny issues of concern.
1.12 Framework bills are those that rely heavily on delegated legislation for the substantive policy content. The committee's position is that it prefers that important information is included in the primary legislation unless there is a principled reason for including it in delegated legislation. It seems to the committee that it could be useful to articulate guidelines to assist those involved with this type of approach to avoid potential scrutiny issues of concern, and the committee intends to consider this topic further.
1.13 National scheme legislation refers to those bills that seek to implement uniform legislation across all jurisdictions and which, through the mechanisms used to implement the schemes, can in practice inhibit the likelihood that Parliaments will amend the content of the bills from the terms in which they were introduced. These schemes are frequently the product of agreement between relevant ministers at national fora (such as the Council of Australian Governments and the Standing Committee of Attorneys General etc.) and the scope of the proposed national scheme is usually documented in an intergovernmental agreement. It appears to the committee that it could be useful for it to provide its technical scrutiny advice before final versions of these bills are settled and it would like to explore this issue in more detail.
Committee powers and sanctions
1.14 The committee is considering a range of possible amendments to Standing Order 24 relating to its powers and the scope of its work. These include whether:
- the committee should have a minimum time in which to consider bills e.g. debate is deferred (as for bills referred to standing committees for inquiry and report);
- permanent inquiry powers are desirable and whether the committee should hold more inquiries on matters of principle;
- there is a need for stronger powers or sanctions relating to the committee's work;
- the committee should suggest amendments to bills, including what impact this might have on the committee's ability for its comments to be timely;
- the committee should bring any lack of response from Ministers to the attention of the Senate;
- the standing orders should require the committee to send its comments to other committees; and
- there should be a requirement for a statement of compliance with Standing Order 24 to be included in explanatory memoranda.
1.15 The committee wishes to increase awareness of its work and to provide practical assistance to those involved in the development of legislation in complying with the principles outlined in Standing Order 24. The committee has a number of ideas in relation to the communication of its work and ways of increasing support to ministers and departments to assist them in understanding and meeting the committee's expectations. These ideas include:
- developing a scrutiny of bills checklist;
- preparing more detailed guides to the committee's work;
- updating the committee's website; and
- increasing access to the committee's work (such as providing links to its work from the relevant bill homepage).
1.16 The committee is also reviewing some possible technical amendments to Standing Order 24 including whether it should refer to 'provisions of bills' as well as to bills themselves, and whether the committee change its name to 'Scrutiny of Bills and Acts' and some other items.
1.17 The committee acknowledges and thanks all those who have assisted with the inquiry to date by making submissions and providing additional information.
1.18 The committee welcomes further contact and the provision of any views or information in light of this interim report.
Senator Mitch Fifield
For further information, contact:
Senate Standing Committee for the Scrutiny of Bills
PO Box 6100
Canberra ACT 2600