CHAPTER 2
History and outline of the work of the Scrutiny of Bills Committee
Background
Establishment of the committee
2.2
The Standing Committee for the Scrutiny of Bills (the committee) was
established on 19 November 1981, by resolution of the Senate[1].
For the first six months of its operation, the committee shared the membership
of the Constitutional and Legal Affairs Committee. On 25 May 1982, the Senate
resolved to establish a separate membership for the committee.
2.3
During the first six years of its operation, the committee existed by
virtue of a Senate resolution and, later, a Senate Sessional Order. This
approach required that the committee be re-established at the commencement of
each new Parliament. However, on 17 March 1987, with the adoption of a new
Senate Standing Order,[2]
the committee became a permanent feature of the Senate committee system.[3]
Committee membership
2.4
The committee consists of six members, three of whom are members of the
government party, nominated by the Leader of the Government in the Senate; and
three of whom are members of non-government parties, nominated by the Leader of
the Opposition in the Senate or by any minority parties or independent
Senators.
2.5
The Chair of the committee is a member of the opposition party appointed
on the nomination of the Leader of the Opposition in the Senate, meaning that
the Government does not have a majority of members on the committee. The Chair
may from time to time appoint a member of the committee to be Deputy Chair. The
Chair, or Deputy Chair when acting as Chair, has a casting vote when votes on a
question before the committee are equally divided.
Role and operation of the committee
2.6
The current role of the committee is to examine and assess proposed
primary legislation against a set of specific accountability standards which
are set out in the committee's terms of reference. The public interest is
served by the committee’s work as it assists Parliament to consider whether all
legislation meets minimum administrative law standards. In particular, the
committee’s scrutiny work broadly focuses on:
-
protecting individual rights and liberties;
-
keeping the government accountable;
-
maintaining administrative fairness and openness; and
-
upholding parliamentary propriety.
2.7
The committee's terms of reference are set out in standing order 24 and
require the committee 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:
(i)
trespass unduly on personal rights and liberties;
(ii)
make rights, liberties or obligations unduly dependent upon
insufficiently defined administrative powers;
(iii)
make rights, liberties or obligations unduly dependent upon
non-reviewable decisions;
(iv)
inappropriately delegate legislative powers; or
(v)
insufficiently subject the exercise of legislative power to
parliamentary scrutiny.
2.8
When the committee identifies a potential problem with a bill, it alerts
the Senate (by tabling its Alert Digest each sitting week) and follows
the matter up with the responsible minister. Having received and considered the
Minister's response, the committee then reports again to the Senate (by tabling
its Report each sitting week). The Committee's initial ("traditional")
approach was that it did not recommend particular action on a bill but simply
raised issues for the Senate's consideration. It was open to the government to
respond to issues raised, and individual senators could take up concerns raised
by the Committee and draft amendments accordingly. How the committee's approach
to its work has since evolved is discussed in Chapter 3, The Committee's
approach to its work.
2.9
During the 39th Parliament, the committee secretariat also
began systematically examining parliamentary amendments to bills. Amendments
agreed to by either the House of Representatives or the Senate, as recorded in
the Votes and Proceedings of the House of Representatives and the Journals
of the Senate, are also evaluated and, where appropriate, drawn to the
Senate's attention.
2.10
The committee takes a strictly non-partisan, apolitical and consensual
approach to its work, which has a significant influence on the capacity of the
committee to meet its objectives. Such an approach is possible because the
committee's usual practice is not to focus upon policy intent but to undertake
a focused examination of legislation in light of standing order 24.
The committee's legal adviser
2.11
Due to the technical nature of the committee's work, the committee
employs a legal adviser to assist with the scrutiny of legislation. Associate
Professor Leighton McDonald from the ANU College of Law of the Australian
National University is currently the committee's legal adviser.
Committee's publications
Alert Digest
2.12
The Alert Digest is the document which first alerts senators to
the committee's comments about bills and amendments. It contains a brief
outline of each bill introduced in the previous sitting week together with any
comments the committee wishes to make about a particular bill. The Alert
Digest also includes comments concerning any amendments and notifies
Senators of any information offences; standing appropriations and national
scheme legislation in the publication. The committee finalises each Digest
at its regular meeting on a Wednesday of each Senate sitting week and it is
tabled in the Senate on the Wednesday afternoon or the Thursday morning of that
sitting week.
Report
2.13
Correspondence received from a Minister, Member or Senator responding to
a concern raised in an Alert Digest is considered by the Committee at
its regular meeting every sitting week. The response and the relevant Alert
Digest extracts are included in the committee's Report and are
tabled either on the Wednesday afternoon or the Thursday morning of each
sitting week.
2.14
The committee wishes to place on the record its thanks to Ministers,
Parliamentary Secretaries, Members, and Senators for their cooperation and
goodwill shown over the years in responding to the committee's concerns.
Responding to the committee provides important material which the committee
needs for the effective performance of its duties. This issue is discussed
further in Chapter 4, Powers and Sanctions.
Other reports
2.15
On occasions the committee produces reports on matters which have been
referred to it by the Senate. In addition to this inquiry, an example is the Report
into Entry, Search and Seizure Provisions in Commonwealth Legislation,
tabled on 4 December 2006.
2.16
Since October 1993, the committee has also produced The Work of the
Committee Report which provides an account of the operation of the
committee during a particular parliamentary period. The report includes
examples of issues that have arisen under each of the five criteria against
which the committee tests legislation. This document is discussed further in Chapter
7, Communication.
Publication on the internet
2.17
The committee's website is updated immediately following the tabling of
the committee's Alert Digest and Report in the Senate each
sitting week. These publications are at available https://www.aph.gov.au/Senate/committee/scrutiny/index.htm to anyone interested in the work of the
committee, such as ministerial or departmental staff.
2.18
When an inquiry is referred to the committee by the Senate it is loaded
onto the committee's website. A webpage is established where all relevant
information concerning the inquiry is loaded. During the course of the inquiry,
further information such as submissions, hearing programs and the report are
progressively loaded onto the site.
Committee's monitoring role
2.19
At various stages since its inception the committee has, within its
terms of reference, added depth to its role by monitoring and reporting on the
following:
Monitoring of penalty provisions
for 'information' offences
2.20
During the 38th Parliament the committee tabled its Eighth
Report of 1998 which reported on the appropriate basis for penalty
provisions where legislation created offences involving the giving or
withholding of information. This matter was referred to the committee following
debate in the Senate about the appropriateness of specifying a penalty of
imprisonment for failing to provide information to the Productivity Commission.[4]
2.21
In the Eighth Report of 1998, the committee recommended that the
Attorney‑General develop more detailed criteria to ensure that the
penalties imposed for such offences were more consistent, more appropriate, and
made greater use of a wider range of non-custodial penalties. On 14 December
1998, the Minister for Justice and Customs responded to the committee, advising
that the issue of penalties for offences of this type would be dealt with
progressively as part of the development of the Commonwealth Criminal Code.
2.22
Since the publication of this report the committee has continued to
identify penalties imposed for these offences and details them in its Alert
Digests.
Monitoring of national scheme
legislation
2.23
During the 39th Parliament the committee began monitoring and
reporting in its Alert Digest on the introduction of Commonwealth bills
which proposed to give effect to national schemes of legislation (i.e.
legislation which is uniform, or substantially uniform, and has an application
in more than one Australian jurisdiction). National scheme (uniform)
legislation is discussed in more detail in Chapter 6, Uniform legislation.
Monitoring of standing
appropriations
2.24
Following the publication of the committee's Fourteenth Report of
2005, which examined accountability and standing appropriations, the
committee determined that as part of its standard procedures it would draw the
attention of senators' to the presence in bills of standing appropriations. The
committee does so under the principles (1)(a)(iv) and (1)(a)(v) of its terms of
reference.
Workload of the committee
Scrutiny of legislation
2.25
From 2001 to 2011 the committee considered a total of 2524 bills and
commented on 1144 or 45.3 per cent of these bills. During the same period 574
bills or 22.7 per cent all bills were amended. Of the amended bills the
committee commented on 125 amendments or 21.8 per cent of these.
2.26
Figure 1 below provides a yearly overview from 2001 to 2011 of all bills
and amendments considered, and of these, the number on which the committee made
a specific comment.
Figure 1
Comments on bills per principle
under Standing Order 24(1)(a)
2.27
As noted earlier, the committee examines all bills which come before the
Parliament against five principles under Standing Order 24(1)(a). Figure 2
below provides a breakdown, by principle, on comments made by the committee on
bills introduced from 2000 to 2011 inclusive.
Figure 2
Source: Compiled from Alert Digests 2000 – 2011.
Inquiries conducted
2.28
Although the main function of the committee is to scrutinise
legislation, another key aspect of the committee's work, which supplements its
primary scrutiny role, is the ability to conduct inquiries into matters of
importance. The committee has over the years conducted several inquires, which
include:
-
The Appropriate Basis for Penalty Provisions in Legislation
Comparable to the Productivity Commission Bill 1996 – report tabled on 25
June 1998;
-
Inquiry into Entry and Search Provisions in Commonwealth
Legislation – reports tabled on 6 April 2000 and 4 December 2006;
-
Inquiry into absolute and strict liability offences in
Commonwealth Legislation – report tabled 26 June 2002; and
-
The Quality of Explanatory Memoranda Accompanying Bills –
report tabled 24 March 2004.
2.29
The Government has recognised the importance of these inquiries by
providing responses to four reports and adopting several of the committee's
recommendations. For example, in the 2006 inquiry into Entry and Search
Provisions in Commonwealth Legislation the committee made 14
recommendations, the Government accepted 10 recommendations fully and two in
part. As a consequence of the recommendations in the report, amendments were
made to the Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers. The amendments addressed many of the areas specified in
the report.
Effectiveness of the committee
2.30
The committee's effectiveness can be broadly evaluated in several
different ways, and the committee believes it is having a positive effect in
each. The various indicators include:
-
the number of bills and amendments commented on, and the ministerial
responses received (quantitatively);
-
the frequency of explanatory memoranda and bills being amended as
a result of the committee's comments (remedial impact);
-
having an impact on future legislation, whereby the committee
raises awareness of scrutiny issues by bringing matters to the attention of
Ministers or departments (preventative effect); and
-
by the committee's views on certain issues and topics being
included in documents which departmental instructing officers and legislative
drafters are obliged to consider (educational impact). For example, the Legislation
Handbook (issued by the Department of Prime Minister and Cabinet); the
Office of Parliamentary Counsel's Drafting Directions; and A Guide to
Framing Commonwealth Offences, Civil Penalties and Enforcement Powers
(first issued by the Minister for Justice and Customs in 2004).
2.31
In support of the impact the committee's work has in shaping future
compliance with minimum standards for legislation, the Clerk of the Senate observes
that:
Arguably, however, the committee's most effective work has
been in influencing approaches to, and standards in, the drafting of
legislation and the provision of supporting documentation (such as, explanatory
memoranda). Although some of the committee's work in this area might be
characterised as formulaic, there is a risk that, if the committee stepped away
from this work, it would not take long for drafting standards to reflect the
absence of a watch dog.[5]
2.32
In addition, people who have experienced the committee's work in
different ways have made comments indicating the importance of the committee
and its effectiveness. Mr Andrew Murray, a former senator and committee member,
stated that the effectiveness of the committee is attested to as 'four in every
ten bills is still attracting Committee comment, three decades after its
inception'.[6]
Mr Murray also commented that:
...some ministers now value the Senate Scrutiny Committee as
a safeguard – as a means to help keep their own Departments up to the mark.[7]
2.33
In its submission the Rule of Law Institute of Australia's (RoLIA)
stated that it 'has been a very strong supporter and interested observer of the
Scrutiny of Bills Committee, so much so that we have issued a media press
release congratulating them on their work in ensuring that our laws uphold the
rule of law'.[8]
In RoLIA's press release of 8 March 2008 it commented that it:
...applauds Senate Standing Committee for the Scrutiny of
Bills on its assiduous reporting of potential breaches of important rule of law
principles, bringing them to the attention of the Senate and relevant
Ministers.[9]
2.34
Other comments made to the committee in the course of this inquiry
include:
-
the Queensland Law Society noted that it 'considers the committee
performs an invaluable role in objectively reviewing new bills';[10]
-
the Law Council of Australia stated that it 'greatly values the
scrutiny function currently undertaken by the Committee';[11]
and
-
Professor Cheryl Saunders argued that '...the Scrutiny of Bills
Committee has been the main catalyst for acceptance of the principle that
proposed legislation should meet certain basic standards that might broadly be
equated with the rule of law.[12]
2.35
However, it is also clear from submissions that there is a view that
there is scope for the committee to improve its efficacy. This is primarily
apparent from the extent and nature of the suggestions for amendments to the
committee's terms of reference, to its approach to its work, and to its other
processes.
Comment
2.36
Since its inception 30 years ago, the committee believes that it has
played a valuable and vital role in the scrutiny of legislation in the
Parliament. The committee has included the positive comments to this effect in
the above paragraphs in order to demonstrate that key stakeholders believe that
it is working effectively on the basis of its current terms of reference. In
assessing bills against the principles outlined in standing order 24 and
reaching a position about compliance with them, the committee is of the view
that its strictly non-partisan approach to its work enables it to work
effectively and productively.
2.37
However, as is evident from the fact of this inquiry, the committee is
also committed to actively reflecting on its current circumstances (terms of
reference and powers) and its philosophy (approach to its work and other
processes it adopts). The committee is seeking to identify whether change is
needed to modify or supplement the existing terms of reference and to
continually review and reinvigorate its philosophy and processes to ensure that
it remains relevant and valuable.
2.38
The combination of general support for the committee's work and an
interest in improving its ability to scrutinise bills successfully underpin
this consideration of the committee's future role and direction. In particular,
the committee has examined the general scope of its work, its approach to its
work and the technical detail of its terms of reference. The committee’s
conclusions about changes which are intended to assist it to remain effective
and appropriate in years to come are outlined in the remainder of this report.
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