CHAPTER 7
Communication
Introduction
7.1
In recent years the committee has developed a renewed interest in
improving its communication. The committee recognises that its expertise in
legislative scrutiny is likely to be useful to other participants in the
legislative process. It is therefore seeking to identify ways in which to make
this information more accessible and useful. The committee would like to create
as much opportunity as it can to have a preventive impact (for scrutiny concerns
to be avoided) and to reduce the necessity for a remedial impact (identifying
and fixing problems once proposed legislation has already been introduced). In
an effort to progress this goal, this chapter is dedicated to considering
options for the committee to expand on, and improve, its communication.
7.2
A number of executive publications, such as the Legislation Handbook
and the Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers, already exist to provide guidance for those
involved in the preparation of proposed legislation, amendments and supporting
documents. The Clerk of the Senate has noted:
The appearance of the committee’s views in these documents,
and in advice given by [relevant] agencies in developing legislation, marks an
important ongoing contribution to better standards in the drafting of
legislation and better explanation of the proposed operation of new and amended
laws.[1]
7.3
The committee welcomes the attention given to scrutiny matters in these
documents and proposes later in this chapter that it will provide additional resources
to those who would like further information and assistance about the technical
scrutiny of legislation.
Traditional communication methods
7.4
The committee has traditionally communicated through the publication of
its:
-
Alert Digests and Reports during each Senate
sitting week;
-
The Work of the Committee Report at the end of each Parliament;
and
-
inquiry reports tabled in the Senate at the conclusion of an
inquiry.
7.5
Notice of the tabling of the Alert Digest and Report is now
communicated each sitting week through Twitter, the documents are loaded onto
the committee's website once they have been tabled, and they are also sent to
various interested parties in hard copy. The format of these documents was
updated relatively recently and the committee is of the view that they remain a
useful contribution to understanding the committee's work. The Chair of the
Senate Community Affairs Legislation Committee, Senator Claire Moore, in a
submission to this inquiry, noted that:
The committee is grateful for the work of the Scrutiny of
Bills committee, which it believes is vitally important in ensuring effective
scrutiny of legislation and the protection of individuals' rights. It supports
the committee's two stage process of reporting, with the Alert Digests and
Reports, because this helps ensure Senators and committees are advised as early
as possible of issues that might warrant consideration during inquiries by
legislative and general purpose standing committees.[2]
7.6
The committee intends to retain its Alert Digests and Reports
as the primary vehicles for notifying the Senate and others of the committee's
assessment of legislative proposals against the scrutiny principles outlined in
standing order 24.
7.7
In addition to these documents which the committee publishes, the committee's
secretariat is regularly involved in providing material for educational events,
such as the Getting bills through the Senate seminars. The seminar is
designed to provide public servants who advise ministers in the Senate chamber
on the passage of bills a detailed understanding of the legislative process and
skills needed to monitor and facilitate the progress of bills through the
Parliament.
Recent innovations
Interaction with Senate legislative
committees
7.8
One of the recent steps the committee has taken is to increase
communication with Senate legislation committees. This interaction alerts the
legislation committee in a timely manner about issues raised by the committee
during a particular sitting week. This is especially helpful when a bill has
been referred to a legislative committee by the Senate Selection of Bills
Committee for inquiry and there is a tight reporting timeframe. The response
from Senate legislation committee secretariats to this approach has been very
positive.[3]
7.9
The practice was noted by the Clerk of the Senate who made a practical
suggestion for the committee to seek to arrange for the practice to become part
of the committee's operating framework:
I note the recent innovation of the committee in forwarding
its initial comments on bills to legislation committees examining those
bills. The committee may wish to formalise this arrangement by
seeking a change in standing order 24 (or standing order 25 covering the
legislation committees) to provide that the committee's comments on bills stand
referred to legislation committees inquiring into those bills. This is an issue
that could be referred to the Procedure Committee to follow up should the
committee see merit in it.[4]
7.10
The committee endorses this proposal from the Clerk of the Senate and
accordingly the committee recommends that this matter be referred to the
Procedure Committee for consideration.
Recommendation 13
7.11
That the Senate refers to the Procedure Committee the Scrutiny of Bills committee's
request that standing order 24 be amended to provide that the committee's
comments on bills stand referred to legislation committees inquiring into those
bills.
7.12
The committee notes that it also has informal, but effective,
communication channels with the Senate Regulations and Ordinances Committee
(discussed in Chapter 5, Framework bills) and it intends to extend this
approach to include the new scrutiny committee, the Parliamentary Joint
Committee on Human Rights.
Use of technology
Communication
7.13
The committee, through its secretariat, has been updating its use of
technology to improve its efficiency and communication. The key items that have
already been implemented in relation to communication are:
-
updating the website: additional information is being included on
the committee's homepage and some features are regularly updated (within
technology constraints). For example, the date of the committee's next
scheduled meeting is now available; and
-
the Senate's Twitter account is used to notify subscribers when
the committee's Alert Digests and Reports have been tabled each
sitting week and the message provides a link to access the documents online.
7.14
Utilising technology to improve the committee's communication is a
continual process and the committee plans to implement further ideas, both
shortly and into the future.
Internal database
7.15
Another recent innovation has been the establishment of an internal
database which captures the committee's comments on bills. Currently, comments
on all bills introduced into the Parliament from 2000 to the present have been
entered into the database, and it is being kept up-to-date. The database has
the capacity to be easily searched and records filtered according to the
information sought and it has become a very useful tool and resource for the
committee secretariat.
7.16
It is hoped that in the future the database can be made publicly
accessible so that it is available as a research tool to others. This may be
especially useful to those who are involved in developing and drafting
legislation. In the meantime, the database will facilitate the secretariat's
ability to create additional support and education resources for these
purposes. The database may also provide a foundation for the committee to
communicate the information traditionally contained in its Work of the Committee
report differently. Both of these items are discussed further below.
Next steps
7.17
The Clerk of the Senate has noted that:
After years of lamenting the failure of explanatory memoranda
to provide sufficient explanations of important matters of legal policy (and an
inquiry on the topic), the committee adopted the practice of requesting that
explanatory memoranda be revised to incorporate better explanations.[5]
7.18
This has led to an improvement in the quality of explanatory memoranda,
but only through remedial means.[6]
7.19
Earlier in this report the committee considered that an appropriate
further step on from requesting changes to explanatory memoranda is for it to
recommend textual amendments to bills on a case-by-case basis in response to
scrutiny concerns (see Chapter 3, Committee approach to its work). A
related issue, which has also been canvassed elsewhere is this report, is that
the committee is interested in increasing its preventative impact. One way to
assist those writing explanatory memoranda to meet the committee's expectations
is to provide information about the standards required. This is related to an
idea raised with the committee by the Clerk of the Senate, who observed that:
Another way in which the committee might enhance its
effectiveness would be to bring greater awareness to its concerns by publishing
its positions differently...Greater awareness might be gained by developing a
comprehensive document outlining the committee's priorities and principles.
Such a document could be updated regularly and published on the committee's web
pages, providing those who need it direct information about the committee's
expectations.
A model for this kind of publication exists in the regular
'work of the committee' reports of the Senate Committee of Privileges...Reports
are cumulative and provide an opportunity to assemble and comment on the
committee's 'case law'.[7]
7.20
The Administrative Review Council has a similar view (though restricted
to a specific topic) to the extent that it:
...considers that agencies may be assisted in developing
legislation and explanatory memoranda by clearer guidelines about what the
Committee considers appropriate in terms of review, including describing key
considerations and providing examples of best practice in explanatory
memoranda.[8]
7.21
The Clerk of the Senate also noted that an additional benefit of
compiling a comprehensive document is that it generates the opportunity for the
committee to review and reflect on its statements of principle and how they may
be improved:
Development and publication of such a document might also
give the committee an opportunity to consider the usefulness of its precedents
and whether they continue to be effective in reflecting the committee's approach
to each of its five principles. Should the committee decide to adjust its
stance on particular matters, either because of this inquiry or otherwise, a
comprehensive document of this nature would provide a useful means of raising
awareness of those changes.[9]
7.22
The committee fully endorses these suggestions and the related options
outlined in its 2011 interim report.[10]
The specific ideas the committee intends to implement are to:
-
create a checklist for drafters and others to use in the
development of legislation. The list will include issues the committee could
raise which breach any of the principles encapsulated in standing order 24;
-
enhancing online indexes with hyperlinks to the Digest and
Reports containing the committee's comments;[11]
-
publish short guides and a consolidated document of priorities
and principles to assist when drafting explanatory memorandums for bills, which
could include model clauses to demonstrate the scrutiny issues which need to be
considered and addressed; and
-
seek to include a link from the Parliament's home page for a bill
to any relevant Alert Digest or Report which comments on that
bill. This will readily indicate, and provide easy access to, any comments made
by the committee.
7.23
All of the documents mentioned above will be accessible from the
committee's homepage. The committee also intends to advise key stakeholders
when the documents become available and when they are updated.
7.24
In response to the committee's 2011 interim report, which refers to the
possibility of creating a checklist, Professor Bryan Horrigan provided a
supplementary submission. The committee agrees that depending on their content,
checklists can be useful, useless or counterproductive. In this context, the
view Professor Horrigan expresses is apposite when he observes that 'How the
checklists are framed and their ancillary explanation therefore matter.'[12]
In relation to this, the committee envisages that it will proceed cautiously
with the production of a checklist, concentrating on technical matters and
cataloguing issues that have been commented on by the committee in the past and
directing readers to further sources of information.
Recommendation 14
7.25
That the committee develop checklists, guidelines and other supporting documents
as appropriate and continues to implement improvements to its use of technology
in raising awareness of the committee's work.
Senator the
Hon Ian Macdonald
Chair
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