Parliamentary Scrutiny of Bills

Victor Perton MP

A continuing section of the paper: Parliamentary Protection of Rights in Victoria

Good parliamentary scrutiny regimes operate across Australia in respect of subordinate legislation. Until last year, Victoria was the only state which had a mechanism for subjecting primary legislation to parliamentary scrutiny on human rights criteria. In 1995, Queensland established similar mechanisms to join the regime which also operates in the Australian Senate and in the Australian Capital Territory Assembly.

The Victorian experience over four years has been an interesting one. Is it effective? The essence of this question is the extent to which the Parliament can control an executive which as a conscious or unconscious decision, through legislative or administrative means, unreasonably reduces or acquiesces to the reduction of the existing rights of the community or a part of the community.

The Birth of the Scrutiny of Acts and Regulations Committee

Parliamentary Scrutiny of Bills has been on the political agenda in Victoria since the mid 1980's. Its first appearance was closely connected with human rights and the protection of the individual.

It was recommended in a "Report on the Desirability or Otherwise of Legislation Defining and Protecting Human Rights" prepared by the now defunct Joint Parliamentary Legal and Constitutional Committee.

On page 125 of the Report, the Committee wrote:

The call for Parliamentary scrutiny of Bills was repeated in the Legal and Constitutional Committee's "Report upon the Constitution Act 1975" in 1990. In that Report on page 30, the Legal and Constitutional Committee stated:

Once again priority was given to the protection of human rights. A Bill to introduce such a committee was introduced into the Upper House but was never debated in the Legislative Assembly.

On November 17, 1992 after the election of the Liberal/National Coalition Government, a new Parliamentary Committee was created, charged with functions relating to subordinate legislation, but taking on board examination of Bills on grounds of the protection of existing rights, good constitutional and parliamentary practice. The Committee has 9 Members. There are four Liberal party members, four Labor party members and one National party member.

The Committee's power of review - protection of rights

The primary task of the Victorian Scrutiny of Acts and Regulations Committee is to scrutinise all Victorian legislation to ensure that "rights" are protected as far as possible in both primary and subordinate legislation. Its first 4 terms of reference are identical to those of the Senate Bills Committee. They may be found in Section 4D of the Parliamentary Committees Act 1968. For the purposes of this paper it is sufficient to consider those Terms set out under (a) only.

In respect of the protection of rights, the Committee derives its power of review from 4D(a)(I), ie; whether a Bill "trespasses unduly upon rights or freedoms". The first debate in the committee centred on the question `what is a right'. The Rawlsian approach above represents one modern formulation for the establishment of rights, on the other hand, John Stuart Mill said,

What, I believe, is an interesting feature of the committee's operations is that the rights which it has sought to protect are defined as broadly as possible. The Committee has utilised international instruments to assess the legislation of the Victorian Parliament against the best international standards.

In the Annual Report of the Scrutiny of Acts and Regulations Committee tabled in April 1994, I wrote an introduction which reflected the controversies on the committee's definition of rights. Since that time the views have been adopted by the committee:

In most parliamentary democracies, there is a tension between Parliamentary sovereignty and the desire of the Executive to press through its legislative and policy program. However, it is still true to say the essential element of the Westminster system is ministerial responsibility, individual and collective (Cabinet) to Parliament.

The question of Parliamentary control over the executive is by no means new. At least one king lost his head over the issue. In 1944, the Economist editorial stated:

Parliamentary Scrutiny means more than mere debate in Parliament. There are both formal and informal mechanisms for the Parliament to protect rights and control the will of the Executive. However, no analysis of the protection of rights would be complete without an examination of the mechanisms within the government party.

The practical workings of the Committee & the practical protection of rights

During 1993 the Committee considered 130 Bills in total. The Committee reported, made comment on or explained provisions of 71 or 54% of the Bills. During 1994 the Committee considered 126 Bills in total. The Committee reported, made comment on or explained provisions of 43 of those Bills.

As Bills are introduced, the Senior Legal Adviser prepares a summary of issues and analysis for consideration by the Committee. During Parliamentary Sessions, The Committee meets at least once a week. In normal circumstances, the draft report of the Committee is referred to the Minister for a response before the next meeting of the Committee. The Committee then considers the reply and additional material solicited from professional groups or submitted by interest group and individuals.

In respect of several controversial Bills, the quality of submissions from the public have been of exceptional quality. In an ideal world the Committee would prefer to have more time to consider the Bills. The reality is that time is very limited because of the pressure of the legislative programme and short adjournments of second reading debates. In the first year of operation of the committee, those short adjournments caused difficulty in the consultation process and brought conflict between the Committee, its Members and Government Ministers. In the second year of operation, better channels of communication and a better understanding of the Committee's operations by Ministers, advisers, public servants and parliamentary counsel has alleviated this problem. The adverse findings of the Committee have been reflected in the better drafting of subsequent legislation.

The views of the Committee are published in a weekly Alert Digest (which having a yellow cover nicknamed generally "Yellow Peril"). Members from all Parties have referred to the Digest in speeches on Bills on well over 150 occasions.

Inspired by the comments of a Senator at the tenth anniversary conference of the Senate Committee on the Scrutiny of Bills, the Committee has adopted the robust practice of holding public hearings in respect of certain Bills where public concern has been expressed. Interestingly enough, the Senate Committee held its first public hearing only last year which hearing was on the Auditor-General Bill. The Senate Committee is unlikely to hold many public hearings. According to its secretary, Mr Peter Crawford, there are three reasons for this:

  • There is usually not enough time for a public hearing. The reason for this is that the Committee will write to the Minister a second time if it is not satisfied by the Minister's response to an adverse comment on a bill. By the time the response is received the bill will usually have been passed by both Houses and been given assent. In order for there to be an opportunity for a public hearing, the Bill would need to be placed on the back burner by the government, due to opposition.
  • If the government introduces amendments to the Bill then there is no need to hold a public hearing.
  • If a policy matter is involved then the Senate may refer the matter to a legislative committee which based on its charter is able to look into the matter.

    The Committee first seeks written submissions, and based on these, invites participants to address the Committee orally in a hearing open to the public, the press, radio and television. Subsequent Alert Digests usually contain greater detail on those Bills as they include commentary received in the Hearings. Transcripts of evidence are also tabled.

    In order to cover all political opinion and in an effort to achieve consensus, the committee's judgements take three approaches. The first is a conclusion that a provision does infringe the terms of reference. The second approach in respect a provision which is arguable or may be the subject of countervailing public policy question is a `may infringe' conclusion. The third approach where political opinion is divided on the committee is a summary of the issues which draws Parliament's attention to the provision but forms no view. In 1994, the Committee continued to developed its analysis and approach. The Committee's work may be best understood by example.

    (a) Crimes Amendment Bill

    In respect of the Crimes Amendment Bill 1993, the public hearings of the Committee and its adverse findings on the basis of the international conventions relating to Civil and Political Rights and to the Rights of the Child, led to the withdrawal and redrafting of the legislation.

    (b)The Tertiary Education (Amendment) Bill

    The Committee was required to examine the question of "rights" on a substantive level in the context of the Tertiary Education (Amendment) Bill. The first issue was the question of the abolition of voluntary unionism. The Minister for Education stated that the principle underlying the decision was freedom of association. The Committee noted the Minister's comments and referred to the effect of the High Court case of Dietrich v The Queen 109 ALR 385. The Committee formed the view that the abolition of compulsory unionism increased rights in so far as it gives students the freedom to choose whether or not they wish to belong to a union organisation. The Committee also noticed that the University was still entitled to collect a fee.

    Of more difficulty for the Committee was the question of funding in relation to services and facilities of universities. Pursuant to subclause 4 of the new section 12F of the Bill, the definition of services excluded a number of university activities including debating, theatre, student newspapers, concerts and associated activities. The Committee was required to consider the status of these activities pursuant to section 4D(a)(i) of the Parliamentary Committees Act 1968. Did they amount to a "right"? The Committee received several submissions and wrote to the Minister. The relevant extracts were included in the Alert Digest. The Committee was not unanimous in its deliberations. In its conclusion the majority of the members preferred to leave the issue to the Parliament. The wording finally adopted was as follows: -

    "The Committee notes that the activities referred to earlier will continue but may be more dependent upon funding from those students who actively participate in them. There are arguments as to whether the changes to the Act constitute a loss of rights or are more akin to a loss of service, privilege or expectation. The Committee refers the matter to Parliament for debate to determine whether the changes constitute a loss of rights and if so whether the reduction of rights is undue."

    (c)The Australian Grand Prix Bill 1994

    The Australian Grand Prix Bill 1994 was introduced to set up a statutory authority and provide `major projects' powers to establish and run a car rice as part of the international grand prix circuit. The legislation was based upon state legislation from South Australia where the race had been run previously. The Committee expressed a number of concerns.

    The Committee held a Public Hearing in respect of the Grand Prix Bill. It heard evidence from all interested parties which, in general, confirmed the concerns of the Committee. The Committee expressed concerns about the protection of citizens from what may have been unintended ambiguity in the protection of the public from negligent acts by the Grand Prix Corporation and also the area which could be covered by ministerial orders. These two concerns were resolved by House Amendment and ministerial undertakings respectively.

    In its final report the conclusions formed by the Committee were not unanimous. In respect of the suspension of rights and interests pursuant to clause 30, the majority of the members reported that:

    As a result of the Committee's concerns the Minister introduced a House Amendment which gave businesses affected by the clause the right to claim compensation based on business performance in a normal trading situation. The Committee is of the view that such a detailed conclusion enables Ministers to better understand the reasons for the Committee's view whilst still fulfilling its obligations in respect of section 4D(a)(i). Similarly, the Committee made the following comments in respect of clause 36 which provided that any activity carried on by the Corporation within the declared area during the race period does not constitute a nuisance: -

    The Editorial of The Age, Thursday 6 October 1994 paid tribute to the independent minded analysis of the Committee on the Albert Park Bill.

    The Government relented and introduced appropriate provision to the extent of restoring the rights of businesses to seek compensation for trading losses and allowing anyone who suffers from negligence by the race organisers to sue. The Committee's success in this instance is a clear example of the way in which rights can be protected by the Parliament. Controversy continues with some local residents opposing the choice of venue but this does not detract from the Committee's work in the protection of rights.

    Melbourne City Link Bill

    A 1995 demonstration of the bipartisan approach of the Committee was found in its approach to a section 85 provision in the Melbourne City Link Bill as follows:

    ul> The Committee notes that similar provisions have been used previously several times in "major projects legislation" like the Casino Legislation and the MCG lights legislation. Under section 4D(b) of the Parliamentary Committees Act 1968, the Committee is required to examine each Section 85 provision on its merit and from a view as to whether the provision "is in all the circumstances desirable and appropriate". To some extent, the view which the Committee is asked to form involves policy considerations. There are policy differences between the parties in relation to this matter. The Committee members have agreed that the appropriate forum for the resolution of this policy dispute is the Parliament, not the Committee room. The Committee refers the question of whether the proposed provision is appropriate and desirable in all the circumstances to the Parliament to determine.

    Other Bills

    The Committee has had a number of successes. An early example was the Barley Marketing Bill 1993. This Bill was part of a two state legislative scheme. Like much older agricultural legislation, it was extremely intrusive. Reverse onus of proof, amazing entry and inspection powers were contained in the Bill. After adverse comment by the Committee, amendments were made (and communicated to the other participating state) to remove all the offending material. The best feature has been the wholesale rewriting of much of the agricultural statute book in accordance with modern understanding of civil rights.

    Most important of all, all assessments have indicated a substantial change to the drafting practices of Victorian Parliamentary Counsel and Government Departments. Criticisms of drafting practices by the Committee have led to change in subsequent legislation. Thus, it appears that the Committee is not having to repeatedly criticise identical provisions. It can continually refine its approach and adopt an ever more stringent standard.

    A 1994 assessment of the Committee's work undertaken by a Melbourne University intern, Ms Marie Henwood (who interviewed MPs, Public Servants, Journalists and other observors) included the following assessment:

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    updated 22 May 1996
    Victor Perton