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.
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.
(ii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers;
(iii) makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions; or
(iv) inappropriately delegates legislative power; or
(v) insufficiently subjects the exercise of legislative power to parliamentary scrutiny."
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:
Human rights have been generally argued to include civil and political rights and legal and political rights. There is much greater division on the status of socioeconomic and cultural rights.
At the first meeting of the Committee, the question "what is a right?" was raised and discussed. This discussion and subsequent interpretation was undertaken in the context of a committee made up of 9 individuals from 3 parties with differing philosophical positions. In the end, the Committee resolved to follow the Senate practice in so far as it was relevant and viable.
Support for the Committee's approach is found in the works of academics and philosophers.
The legislative charter of the Committee is broad. The word "rights" include natural rights and other moral rights established by the writings of the philosophers, jurists and churchmen. It most certainly includes the positive, empirical category of legal rights . rights whose existence is established by examining existing statutes, codes and decisions comprising the common law of Victoria. There are also internationally acknowledged human rights which can be found in the instruments of international and domestic law."
Whatever the rights, whatever our formulation, I believe the committee has had a remarkable effect on the ability of the Victorian Parliament to protect its community from the loss of rights and/or the infringement of those rights by government or otherwise.
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.
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:
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.
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."
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.
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.
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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