PARLIAMENTARY PROTECTION OF RIGHTS IN THE STATE OF VICTORIA

Victor Perton MP
    Chairman 1992-96
    Victorian Parliamentary Committee for the Scrutiny of Acts and Regulations
    Liberal Party's Nominee for Chairman
    Victorian Parliamentary Law Reform Committee

A Paper based on a lecture delivered at Melbourne University
May, 1996

Synopsis

The paper examines the developments in the State of Victoria (Australia) in relation to human rights protections. Victoria (and Australia) has no Bill of Rights. There are many mechanisms for the protection of human rights. The parliamentary scrutiny of bills is one such model.

Another paper on the Victorian model prepared by a Melbourne University student, Marie Henwood, in 1994 may be downloaded by clicking here.

Contents

Introduction
Executive Scrutiny
What scrutiny occurs before a Bill reaches the Parliament?
Parliamentary Scrutiny of Bills
The Birth of the Scrutiny of Acts and Regulations Committee
The Tertiary Education (Amendment) Bill
The Australian Grand Prix Bill 1994
Parliament's Role in Delegated Legislation
Regulatory Impact Statements
Law Reform - The Equal Opportunity Act
Bipartisanship
Rights Issues Involving The Victorian Police
Conclusion

Introduction

On the day that Labor Senator Barney Cooney heard that I was appointed Chairman of the Scrutiny of Acts and Regulations Committee, he rang to offer me both his heartfelt congratulations and equally heartfelt commiserations - and I'm sure it was with the best of intentions that he told me to expect a fiery existence in my position of Chairman of this innovative committee. Having recently completed my term in the position, I can now report that it is a well-entrenched and well-regarded institution which has received praise even from some who have received its censure.

The theme of this paper relates to parliament's protection of rights through scrutiny of primary and secondary legislative proposals. This scrutiny ensures that legislation complies with international human rights norms and good constitutional and administrative criteria. In this area, building on a 30 year history, the Victorian Parliament has become an international leader. The Scrutiny of Acts and Regulations Committee (SARC) was born of the debate on a bill of rights for Victoria. Parliamentary scrutiny is not necessarily an alternative to an entrenched bill of rights. However, whether or not we have a bill of rights, parliamentary scrutiny is a necessity.

Too many analysts and proponents for a Bill of Rights look at the possible benefits of an entrenched bill of rights without examining the enormous costs, not least the enormous cost of litigating a new bill. Even worse, many of those espousing a bill of rights do so without adequate knowledge of the existing mechanisms.

Of course, better understanding of those mechanisms and some confidence in their efficacy may increase confidence in the political system. Members of Parliament are held in relatively low esteem but, then again, so are lawyers. But a greater understanding of the bipartisan way in which parliamentarians can work in all-party committees will also assist the public and lobby groups in their efforts to improve or alter statutes and/or government action.

Victoria

Before I commence an analysis of the mechanisms in place in relation to legislative scrutiny, I should indicate that as to the general protection and enforcement of rights, I start from the presumption that Victoria is pretty much the same as the rest of Australia. In some respects it comes out a lot better.

As in the rest of the country, indeed in the rest of the world, there will be violations of rights. A test which was articulated at the now-closed Mietta's Restuarant in Melbourne in 1995 by Mr Justice Kirby (High Court Justice and President of the International Commission of Jurists), is not whether a breach of civil/human rights occurs (breaches will occur in any society as officials exceed their proper authority) but whether there are adequate mechanisms to deal with those violations and set up structures to ensure that violations are not repeated. In the case of Victoria, this is certainly the case.

Formal mechanisms for complaints exist through the Ombudsman, the Equal Opportunity Commission, the Health Services Commissioner, various tribunals, the courts and other institutions.

Many tens of thousands of rights violations are dealt with in an informal way by Members of Parliament. Diverse complaints relating to social welfare entitlements, prosecutions, immigration matters are resolved by Members of Parliament corresponding with the responsible Minister or department. These complaints may include problems with private enterprise. Often MPs act as informal mediators in private disputes.


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updated 22 May 1996
Victor Perton
victorp@vicnet.net.au