Interim Report

Interim Report

23 November 2011

© Commonwealth of Australia 2011

View the report as a single document - (PDF 37KB)

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.

Interim report

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:

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:


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:

Technical amendments

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:

Committee Secretary
Senate Standing Committee for the Scrutiny of Bills
PO Box 6100
Parliament House
Canberra ACT 2600

Phone: +61 2 6277 3050
Fax: +61 2 6277 5881