Senate Legislative and General Purpose Standing Committees
The First 20 Years 1970 - 1990

Table of Contents


The Committee and its Predecessors

Since the establishment of the Senate Standing Committees in 1970, matters presently covered by the Senate Standing Committee on Legal and Constitutional Affairs have fallen, formally, within the areas of interest of the following Committees:


Current Membership

The membership of the Senate Standing Committee on Legal and Constitutional Affairs in December 1990 was as follows:

A full listing of membership and Committee Chairpersons on the Senate Standing Committee on Legal and Constitutional Affairs and other related committees are listed in an attachment to this section. Other attachments to this section include lists of committee secretaries and reports tabled by the committees.


The Work of the Committees

Focusing as it does on questions of a legal and constitutional nature, the Committee's work has ranged widely over many subject areas, a sample of which are described below.


Family Law

A reference on family law matters was one of the Committee's earliest references, coming a bare two months after the Committee was set up. At the time, family law was an innovative field of Commonwealth law and therefore involved a consideration of constitutional issues. The inquiry was a major one and when the first version of the Family Law Bill was introduced in 1973, the Attorney-General referred to the prior work of the Committee, having been one of the Committee's members at the time of the reference. The first and second versions of the bill lapsed. The third version was referred to the Committee, and in October 1974 the Committee tabled its final report on both the clauses of the bill and on the general family law matters that had previously been referred. Among the significant recommendations was a recommendation to establish the Family Court. Nearly all of the Committee's recommendations, including that one, were given effect either by the bill as introduced or by amendments moved and carried in the Senate.


Constitutional Law

Constitutional matters are central to the Committee's work. They have formed the subject matter of inquiries in their own right and have arisen to be considered in the context of examination of Commonwealth legislation. In 'Retiring Age for Commonwealth Judges', tabled in October 1976, the Committee recommended, among other things, certain changes to the Constitution to prescribe a retirement age of seventy for High Court judges. The Australian Constitutional Convention subsequently adopted the Committee's recommendations and the Government later introduced the Constitution Alteration (Retirement of Judges) Bill 1977. The proposal for constitutional alteration was passed at a referendum in May 1977 and the Constitution was amended as had been recommended by the Committee.


Parliamentary Matters

It was this Committee which recommended that a parliamentary committee be set up to scrutinise legislation that was before the Parliament for transgression of fundamental civil liberties (see the Committee's 'Report on Scrutiny of Bills', and 'Report on Delegation of Parliamentary Authority', both tabled in November 1978). Although the Committee's proposal for a joint committee was rejected, the Senate Standing Committee for the Scrutiny of Bills was established in 1981, with terms of reference largely formulated by this Committee.


Criminal Law

Criminal law has not been a major concern for the Committee - most criminal law issues are matters for the states - but at least two of its reports have been milestones in the area. 'The Burden of Proof in Criminal Proceedings', tabled in November 1982, continues to influence research and reform in this area of law. It has been recognised as an excellent, non-partisan analysis of the issues by several leading journals, and the government responded to the Committee that its recommendations, and the principles underlying them, were and would continue to be influential in resolving problems on a case-by-case basis (Senate, Hansard, 22 October 1984, p. 2126). The report has also figured prominently in three major reviews of the legislation: in the (then) Human Rights Commission's review of Commonwealth criminal law (see its report no 5, Review of Crimes Act 1914 and Other Crimes Legislation of the Commonwealth, AGPS, Canberra, 1983); in a review in 1985 by the Legal and Constitutional Committee of the Parliament of Victoria, Report on the Burden of Proof in Criminal Cases; and in the Commonwealth's continuing review of aspects of Commonwealth criminal law, in which the Committee's work is part of the standing terms of reference.

The other major aspect of the Committee's work in criminal law is its inquiry into the National Crime Authority Bill 1983, introduced by the newly elected government in November 1983. The Committee's inquiry, which was conducted within five months, had a broad scope and was politically sensitive. Thirty-nine of the Committee's forty-one recommendations were adopted by the government, either wholly or in part, and the bill was substantially amended. Amendment of the bill to set up the Joint Parliamentary Committee on the National Crime Authority reflected a recommendation made in a dissenting report.


Administrative Law

The Committee's involvement in administrative law reflects the development of the Commonwealth legislative package known as the 'new administrative law' during the 1970s. The Committee's first major piece of work in this area was on the Freedom of Information Bill 1978 and aspects of the Archives Bill 1978. In that report, the Committee canvassed many of the conceptual issues in relation to freedom of information, and its implications for a Westminster-style system of government, in addition to examining the clauses of the bills. Many of the Committee's recommendations were accepted and a revised Freedom of Information Bill was introduced in the Senate in 1981. Some of the Committee's recommendations not accepted by the government were given effect in amendments agreed to by the Senate and in a later amending Act. Some years after the commencement of the Freedom of Information Act, the Committee reviewed the Act's operation and administration. In its report, tabled in December 1987, it made certain recommendations in relation to 'fine-tuning' the freedom of information scheme in the Commonwealth.

Further in respect of the new administrative law, the Committee has had a continuing relationship of some years duration with the Commonwealth Ombudsman. On several occasions the Committee has reviewed the functions of the Ombudsman's office by examining his annual reports to the Parliament and discussing with the Ombudsman in public session issues raised in those reports. Moreover, the Committee has a standing reference in relation to the Ombudsman's special reports to the parliament. So far, the Ombudsman has only made two such reports. The Ombudsman also made important submissions to the Committee in its review of the operation and administration of the Freedom of Information Act.



The Committee has spent much of its time reviewing legislation or legislative proposals. Often such matters have been referred to it in contentious circumstances, such as aspects of the War Crimes Amendment Bill 1987 (see its report tabled in February 1988), matters relating to the original tax file number proposals (October 1988), and the Administrative Decisions (Judicial Review) Amendment Bill 1987 (October 1987). On other occasions, the reason for the referral has been the novelty of the scheme proposed for example, by the Cash Transaction Reports Bill 1987 (April 1988). In addition, the Committee has had many bills referred to it under the Senate's system of referring bills to standing committees, instituted in 1990. In most cases, these references have involved public hearings with relevant experts, interest groups and the relevant minister and his/her advisers, following which the Committee reports back briefly to the Senate. The tight time frames for such referrals has meant that the Senate's legislative program is able to continue unimpeded.