PARLIAMENTARY PROTECTION OF RIGHTS IN THE STATE OF VICTORIA
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.
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
0. I shall now state in a provisional form the two principles of justice.. First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and offices open to all.
0. John Rawls, A Theory of Justice (1971)
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.
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.
Legislative Breach of Rights
Continued from Parliamentary Protection of Rights in Victoria
Ideally, legislation prepared for and presented to parliament would not reduce rights. In a liberal democracy like Australia there is very little difference between the parties in the desire to protect human rights.
However, there will be occasions when the drafting of legislation inadvertently reduces rights of individuals. There will be others when the Executive concludes that the general public interest requires a reduction in some rights.. On other occasions conflicts of rights occur.
In Victoria, in 1993, the practice of permitting an unsworn statement, not subject to cross-examination, by a criminal defendant was abolished by statute. The abolition of the right was argued to be in the interest of female complainants in sexual assault cases. Persuasive and widespread anecdotal evidence held that the right was being used by defendants to slur complainants without any countervailing cross-examination of the defendant. The abolition of this right was argued to be necessary to provide better protection for complainants.
However, the original purpose of the right was to prevent the oppression of poorly educated defendants by skilled prosecutors who could extract concessions damaging to the defence case. At the time it was my view that defendants with poor English, Aboriginals (who are culturally attuned to giving `yes' answers) and people on the lower range of normal intelligence still may have needed the protection. On the Scrutiny of Acts and Regulations Committee I was supported by one Labor Member. In the end, the Bill received near unanimous support in the Parliament and the community. I lost, the majority won. This sort of balance is not one that judges are any better equipped to make. Even if they were so equipped, isn't this sort of balancing of rights a decision for the people through their Parliament?
When we give judges these powers absurd results can arise. Under the Charter of Rights in Canada there have been several astounding decisions.
The tobacco advertising case. RJR-MacDonald Inc. V. Canada. The Court split on whether the federal government could regulate the advertising and sale of tobacco products. The 5-4 majority held that free speech was violated and this was not a reasonable limit on this right. In Canada, the Court decides first if a right has been infringed and then later whether the infringement is justified. The object of the legislation was to address concerns that tobacco advertising leads to increased consumption. The legislation prohibited all advertising and promotion of tobacco products. The majority decided that the legislation was not justified because the government had not provided any evidence about why a total ban on advertising was required. It recognized the objective was important but thought that the legislation should be carefully designed. The majority was bothered by the fact that the government had not provided any evidence about why less restrictive mans of accomplishing its objective were not available (for example a ban on a particular manner of advertising such as lifestyle advertisements, rather than a ban on all forms of advertising). The absurd aspect of this decision, in my opinion, is that the Court gave protection to the ability of tobacco companies to "advertise" and that this was given a higher priority than the government's objective of curbing new consumption, particularly for the young and impressionable. Further, if the court believed the government should have led evidence, why didn't it do so?
In a case out of Manitoba, (I need to check the citation), the Court decided that freedom of expression includes the right to solicit for prostitution purposes. It did decide that legislation restricting where rostitutes could solicit was, in the end, justified.
In an ideal world, provisions of new laws which conflict with civil rights principles would be detected in the processes of the executive arm of government. Indeed, this appears to be the Canadian model whereby there is no distinct Parliamentary process for determining breaches of rights. An office of the Ministry of Justice is dedicated to this task. I have had the opportunity to meet the officers in Ottawa.
Last year I commenced a project to determine whether there is any difference in the quality of legislation emanating from the Canadian process as compared with the Victorian model, I am unable to say with any certainty as to whether there is any substantial difference. The Canadians have a mixed attitude as to the benefits gained from the Charter of Rights. However they are unanimous in their view that the Charter of Rights could not be removed from the Canadian constitutional system
What scrutiny occurs before a Bill reaches the Parliament?
While there are many good scholarly works on the formal parliamentary processes for the making of laws, relatively little attention is paid to the processes at work before a bill reaches the Parliament. In the Victorian system, the main policy players are the Minister, Cabinet, Coalition Room, Coalition Bills Committee and Parliamentary Counsel. While most of these players are known to the public, the Coalition Room and the Bills Committee are the least understood players. The Coalition Room, made up of all parliamentary memebr4s of the Liberal and National Parties has the final decision on whether a Bill goes forward from the Executive Branch to the Parliament. The Coalition Bills Committees (there is one for every ministry) is made up of the Minister and around eight backbench Members of the Coalition Room who have a special expertise of interest in the policy decisions of the Ministry which require primary legislation.
0. 1. The first phase is the initiation phase. The ideas for legislative reform may come from a myriad of sources: the minister, advisors, departmental initiative, political party conferences, political party policy committees, professional organisations, responses to judicial decisions, and ordinary citizens.
0. In this phase, in the Victorian coalition government, a draft legislative proposal may actually go the relevant Bills Committee first. This is particularly the case in respect of major proposals likely to get bipartisan support and, sometimes, in the case of bills which might be divisive.
0. 2. The next phase is the Approval in Principle by Cabinet. Generally, a Minister will produce a proposal to Cabinet which may include draft legislation or drafting instructions.
0. 3. On approval by Cabinet, a Minister reports the draft Bill to the Coalition Room for referral to the relevant Bills Committee. Other members of the Coalition are entitled to attend but not vote at the Bills Committee meeting considering the dr5aft Bill. The Bills Committee may scrutinise the legislation in great detail and may invite submissions from interest groups affected. It is at this point, that the government MPs have the greatest opportunity to examine draft statutory provisions to determine whether they breach rights.
4. After the Bills Committee has considered the Bill and made its recommendations, Cabinet reconsiders the matter together with the recommendations of the Bills Committee. Following Cabinet approval, the Bill returns to the Coalition Room for full debate. The debate at this point will normally go to the most contentious matters and policy matters which may require a balancing of rights will often be strongly debated at this point.
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.
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:
0. "This Committee believes that an immediately obvious task which should fall to the Committee which is to deal with matters of human rights would be the Scrutiny of all Bills introduced into either House of the Parliament. The Object of this scrutiny would be to enable the Committee to report to the Parliament upon the question of whether such Bills unduly trespassed upon the rights and freedoms...."
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:
0. "The Committee believes that, in the event that it is charged with the scrutiny of Bills in relation to their impact upon the jurisdiction of the Supreme Court, it should also be required to scrutinise those Bills on the same grounds as those derived from the Senate Scrutiny of Bills Committee and adapted in the Committee's previous report on human rights."
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.
. "(a)to consider any Bill introduced into a House of Parliament and to report to the Parliament as to whether the Bill, by express words or otherwise -
0. (I) trespasses unduly upon rights or freedoms; or
0. (ii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers;
0. (iii) makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions; or
0. (iv) inappropriately delegates legislative power; or
0. (v) insufficiently subjects the exercise of legislative power to parliamentary scrutiny."
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,
0. `To have a right is to have something which society ought to defend one in the possession of. If the objector goes on to ask why it ought, I can give him no other reason than general utility.'
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:
0. Section 4D(a) of the Parliamentary Committees Act, introduced by the Premier, uses the words the rights and freedoms of the individual. The use of the word "rights" and not the words "human rights' followed the Federal Senate model.
0. 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.
0. 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.
0. Support for the Committee's approach is found in the works of academics and philosophers.
0. " It could be suggested that the only proper use of the word rights is in relation to the fights which are recognised by the legal system of a state. Thinking of this kind is behind the view that human rights relate only to the relationship between the individual and the state, not to relations between individuals, and between individuals and corporations. There could be advantage in confining the word "rights" to relationships between individuals and the state, but common usage simply would not allow..(this)."
0. 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."
0. 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.
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:
. `the real domestic problem of Parliament is to find means of making much better use of its time so that it can, without holding up the process of government, simultaneously approve and criticise legislation, pass government policy under continuous review, watch over the public interest, and protect the rights of individuals and minorities...(it) will abandon its central duty if it allows any of the essential controls over Executive action to pass out of its hands simply for lack of working efficiency, or ingenuity in its organisation.'
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.
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."
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:
0. "Clause 30 may contravene section 4D(a)(i) in that the rights and interests of any person in relation to the declared area are suspended for the race period. However the Committee also notes that those tenants whose rights are suspended may conduct businesses in accordance with conditions approved by the Corporation in consultation with the Committee of Management and that there may be opportunities for greater remuneration for a business conducted in the vicinity of the Grand Prix. The loss of rights of persons who conduct businesses in the declared area may be ameliorated if clause 42 does not apply to them."
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: -
0. "The Committee is of the view that this provision may contravene section 4D(a)(i) of the Parliamentary Committees Act 1968 in that at common law, noise and fumes may amount to nuisance. There is therefore a loss of existing rights. The Committee notes that this provision mirrors section 25(3) of the South Australian Formula One Grand Prix Act 1984. The Committee also notes that the race period is limited to seven days per year. The Committee is also aware that there are competing environmental effects studies which differ on the impact of race noise during the race period."
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.
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.
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:
As a joint house bipartisan committee, its reference includes scrutiny of both primary and subordinate legislation against a set of civil libertarian and constitutional criteria. The breadth of its mandate and the controversial nature of some of its recommendations means that in the space of only two years it has carved out a sizeable niche of media and parliamentary attention. Yet while its more critical reports may have, at times, raised hostility among some government members, it appears to have had a very constructive impact on legislation. Initial impressions recorded from various groups in the political process, including parliamentarians, journalists, department officials and interest groups were generally favourable to the committee and its operation. There is certainly room for improvement in the committee's process of deliberation and reporting. But, given the time and partisan constraints applied to such a forum, it appears to have fulfilled its functions and had a significant impact on the parliamentary process.
Section 85 of the Victorian Constitution
Victor Perton MP
A continuing section of the paper: Parliamentary Protection of Rights in Victoria
In May 1995, the Committee produced its first discussion paper on the operation of Section 85 of the Victorian Constitution Act 1975. This a complicated issue which merits the close examination undertaken in the discussion paper which may be downloaded by clicking here.
Section 85 of the Victorian constitution has been a hot political issue over the last 3 years. The Committee is required under Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968 to examine each Section 85 provision and assess whether it is appropriate and desirable in all the circumstances. Its task is to assess whether the use of a particular provision is appropriate and desirable in the circumstances. In most cases, the Committee has found that the use of the provisions is appropriate and desirable in the individual circumstances of the Bill.
In its discussion paper, the Committee made the point that both Liberal and Labor Governments have used the practice of inserting Section 85 provisions into Bills. In some cases, the use is trivial, in others, the use may be of serious concern. The Section 85 provisions which provoke debate in Victoria are typical of provisions used in legislation in every State in Australia as well as the federal jurisdiction.
The fact that the provisions are used frequently does not necessarily make them desirable. However, clearly there are cases where restrictions in the access to the courts is in the public interest, for example, in the introduction of an Administrative Appeals Tribunal to which litigants must go before approaching a court.
The issue arose as a result of the unusual drafting of the Constitution Act 1975. Its purpose was to re-enact the law relating to the Constitution of Victoria in one comprehensive piece of legislation. In addition to consolidating the existing law, particular provisions of the Supreme Court Act 1958 were repealed and re-enacted into the Constitution Act 1975. The Constitution Act 1975 accorded constitutional status and protection to the Supreme Court of Victoria for the first time in its history. That protection of the Supreme Court was afforded by the entrenchment procedure set out in the Act. The Entrenchment Procedure In simple terms, the essential feature of the entrenchment procedure was that a Bill which contained a provision which in any way sought to change the operation of s.85, the provision of the Constitution Act 1975 conferring jurisdiction upon the Supreme Court, required passage through both Houses of Parliament by absolute majorities. Any Bill which did not comply with the Act would simply be rendered void.
The entrenchment procedure in respect of the jurisdiction of the Supreme Court is unique to Victoria. No other State has any such procedure. No reason was given for its insertion into the legislation at the time of its introduction. Nor was any attention drawn to the nature of the changes in respect of the protection of the Supreme Court. The reasons for its accidental birth, whether technical or otherwise are perhaps best known to the Parliamentary Counsel who drafted the legislation at the time. The reasons for the introduction of the Section 85 provisions in the first instance remain of interest to those involved with its present day implementation.
Parliament's Role in Delegated Legislation
Victor Perton MP
A continuing section of a paper: Parliamentary Protection of Rights in Victoria
Parliament has power to delegate its law making ability. In most cases power is delegated to the Governor in Council. However, there is an increasing proliferation of codes of conduct, determinations, and directives made by a host of other bodies including statutory authorities, statutory officers, public servants, Judges and tribunals. This is a matter of increasing concern for Parliaments around the world.
In 1989, in opening the second conference of Delegated Legislation Committees, the Governor General, The Honourable Bill Hayden said, 'Delegated legislation, subordinate legislation, the powers given to the Executive and the Public Service to make regulations, are an extremely important part of modern administration and lawmaking. Indeed, it has become increasingly so for at least the last century, touching upon all our lives.'
To maintain control over the delegated lawmaking process, and oversee it, scrutiny committees have been established in every Australian Parliament and Territory Assembly. In Victoria, under the Subordinate Legislation Act, the Scrutiny of Acts and Regulations Committee has the task of scrutinising statutory rules. It inherited a fine set of precedents from the now defunct Legal and Constitutional Committee.
The workload of the committee is heavy. Therefore, the committee has established a Subordinate Legislation Subcommittee to undertake the work required to examine subordinate instruments coming under its purview. Invariably, the Committee ratifies reports and recommendations of the subcommittee.
The two principal objects of the subcommittee are to:
0. 1.Safeguard the community against any abuses or inappropriate uses of regulation-making power. This is done in the recognition that regulations, like any legislation, may adversely affect the rights, liberties, duties and liabilities of citizens; and 2.To ensure that the regulations under its supervision do not exceed the powers given to the Executive and to ensure that they conform with the spirit, intent, purposes and wording of the Acts passed by Parliament.
Under the Subordinate Legislation Act, the committee's duties and scrutiny commence only after regulations are made and in operation. The subcommittee has 18 parliamentary sitting days from the date regulations are tabled in Parliament in which to review the rules. Explanatory documents, Regulatory Impact Statements (RIS), submissions and other relevant documents must be sent to the subcommittee by Departments and Agencies.
Rules that clearly satisfy all grounds for review are immediately approved by the subcommittee. If the subcommittee believes a regulation may contravene any of the scrutiny criteria, I write to the responsible Minister detailing the subcommittee's concerns. In almost every case, problems with regulations are resolved as a direct result of negotiations between Ministers and the subcommittee, alleviating the need for the committee to exercise its power to recommend disallowance. I should note that with only a handful of exceptions in the last decade, the recommendations of the committee are accepted by Parliament.
Sometimes, the subcommittee invites departmental officers to appear before it in order to provide information about complex statutory rules. On other occasions, the subcommittee has asked for an explanation as to the best way to rectify flawed regulations.
An example of this type of consultation involved representatives from the Department of Conservation and Environment and the Parks Regulations 1992.
The original provision provided for:
0. 12.Games and activities
A person must not in a park -
(a)roll or throw a stone, missile or other substance; or
(b)play a game or take part in any activity which is likely to cause inconvenience, danger, disturbance or annoyance to other persons.
Penalty: 5 penalty units.
0. Conceivably, a child throwing a beachball at Wilson's Promontory could have been guilty of an offence. After discussions and approval by the Minister, the Hon Mark Birrell, a new regulation was made to:-
12. Games and activities
A person must not in a park throw a stone or missile, play a game or take part in any activity which is likely to cause danger, disturbance or annoyance to other persons.
Regulatory Impact Statements
Victor Perton MP
A continuing section of a paper: Parliamentary Protection of Rights in Victoria
The regulatory impact statement is a radical feature of the Victorian scheme. Legislation has been introduced at the Federal level to inadequately take up part of this structure in respect of regulations affecting business. The process is designed to ensure that proper analysis and justification of regulatory proposals occurs and that the public is consulted during the development of significant proposals.
Basically, if a rule imposes any burden on any sector of the community, a RIS is required unless a specific exemption applies. Many regulations are exempted from the RIS process, either because they impose no burden, or because they fall within one of the 5 specific exemptions provided by the guidelines. This does not exempt regulations from the scrutiny of the subcommittee. About 10-15% of all regulations are prepared with a RIS.
When a RIS is required, Schedule 3 to the Subordinate Legislation Act prescribes the matters which must be included. These are mandatory, and enforceable by the courts. From judicial comments in the 1986 case of Philip Morris v State of Victoria  VR 825, it appears that failure to comply may mean that the regulations are invalid.
The Act requires 4 things of an RIS:
0. 1. A statement of the objectives of the proposed statutory rule.
. 2.Identification of the alternative means of meeting those objectives. Note: This requirement presupposes that the threshold question of whether or not there should be regulations has already been made.
0. Example: Fees regulations in the case of an Act which includes a requirement for prescribed fees. The discussion of alternatives, as required by clause 2, will include canvassing the policy options such as full or partial cost recovery, or whether nominal fees are chosen. Discussion of the Departmental activities to be paid for by the fees should occur. For the purposes of clause 2 it is not appropriate to state simply that the Act requires to prescribe fees. This does not fulfil the requirements of clause 2.
0. 3. A cost benefit analysis - of both social and economic costs and benefits.
0. 4.A summary of the alternatives to making regulations, and why they were considered inappropriate. Note: This is the clause which requires explanation of that threshold question as to whether regulations were required, or whether some other instrument such as a voluntary code, or administrative guidelines, would have been sufficient.
0. Example: The fees regulations above. In such a situation, it may be appropriate to explain that regulations are required by the Act, and that alternatives do not exist.
If a document does not provide this, the subcommittee will usually write to the relevant Minister seeking further information or clarification. As a general rule, the more important the regulations, or the more intrusive the provisions, the greater the explanation and justification required in a RIS. Subcommittee reports and recommendations for disallowance have so far arisen only in cases of flagrant disregard for the Schedule 3 requirements, e.g. where none of them are met, yet the regulations have a significant impact on rights or liberties, or deals with important matters
These reports dealt with matters as disparate as the display of health warnings on cigarette packets, fees and penalties set by Local Government Regulations and regulations which detailed the rights of water authorities upon the creation of easements and reserves on new subdivisions of land. In all of these cases the RIS failed to identify alternative means of meeting the objectives of the regulations and neglected to provide any cost benefit analysis of the regulations.
From its extensive experience examining every regulation made in this state, the subcommittee can quite easily assure you that the RIS process has led to better (and perhaps fewer) regulations for Victorians. Our model is gradually being followed by the other States and Territories and has become a model for international reform.
My personal view is that the RIS process strengthens our democracy. Whilst there are many avenues for the citizen and organisations to lobby in respect of Bills in the Parliament, the RIS process offers the only genuine public input into the regulatory process. The process is seen as more important today than ever before because many more substantive issues are being left by Acts to be realised in subordinate legislation. This makes the need for public justification of regulatory proposals much greater, because they are not debated in the public arena, that is, the Parliament.
Law Reform - The Equal Opportunity Act
Continued from Parliamentary Protection of Rights in Victoria
The Equal Opportunity Act
In 1993, The Scrutiny of Acts and Regulations Committee was given the task of reviewing the Victorian Equal Opportunity Act 1984. The Committee produced an Interim Report in October 1993 and a Final Report in November 1993. Some of the Committee's recommendations in that Report included:
0. that the Act provide that age be included as a prohibited ground of discrimination; that the Act prohibit discrimination against a person on the ground of a person's lawful sexual orientation/sexuality; that the Act explicitly prohibit discrimination of the ground of pregnancy; that the Act prohibit discrimination of the ground of family responsibilities;
More controversially, the Committee recommended the restructure of the office of the Equal Opportunity Commission. This was designed to establish a better management structure and a more publicly accountable structure. This was implemented by legislation in 1993. My view is that the restructure was appropriate. The new commission is well led and well-staffed. The Federal Government has demonstrated its confidence by continuing and extending its delegations under federal anti-discrimination law.
The Government enacted the Equal Opportunity Act 1995. This Act adopts many of the Committee's recommendations. The Act prohibits discrimination which is based on various attributes, including any of the following attributes: age, lawful sexual activity, pregnancy, and status of parent or carer. A recent journal article discusses the Committee's review of the earlier Act, and the subsequent adoption of many of the Committee's recommendations: ÔEqual Opportunity Act 1995' Litigation Lawyer (24) July 1995, 35 - 44.
The Subordinate Legislation Act
The Committee also reviewed the Subordinate Legislation Act 1962 and reported on it in November 1993. The Government has affirmed the Committee's role and work by introducing a new Subordinate Legislation Bill in November 1994. The new Act, which came into force on 1 January 1995, is based largely on the Committee's recommendation and draft Bill. The Government's positive response to the Committee's work augers well for the future.
Continued from a paper: Parliamentary Protection of Rights in Victoria
Although some of the Committee's findings are not unanimous, an excellent feature of the committee's work is that of its bipartisan approach. The Committee members genuinely work hard to ensure that all the issues are adequately discussed and all views taken into account.
This bipartisanship is especially commendable when, in the words of the now retired Senator Austin Lewis, 'party political discipline in politics today is stricter and more remorseless than at any other time is this country's political history. '
Although at times this bipartisan approach causes personal political grief for all the members of the Committee, both Liberal and Labor alike, I do think the community is better served at the end of the day. The nine members of the Committee have been able to remove political partisanship from their deliberations in order to really make the thing work!
The Committee has already been the object of substantial studies by two university students. Greg Norton, who prepared a progress report on the Committee's activities to June 1993, wrote:
0. "Another major difficulty the Committee faces is that it is neither one thing nor the other. It is neither an overtly political committee (e.g. intra-party Bills Committee) nor a body composed of neutral outsiders. .... Although the Attorney-General, Jan Wade, has been a continual advocate for the Committee, the (Treasurer) Hon. Alan Stockdale's sentiments that "if the comments by the honourable member for Werribee [Ken Coghill] are representative of the views of the Committee, I for one think the Committee ought to be disbanded", and his belief that "the Committee is pushing its charter to a point that will make governments unworkable".
Subsequently, the Committee's position has continued to be strengthened. In a recent debate between the Attorney and the Shadow Attorney, the only agreement was that the Committee was doing `a fantastic job.' In February 1995, the Premier applauded our law reform work and ordered Ministers to cooperate with the Committee in its review of redundant and badly drafted legislation on a portfolio by portfolio method.
Overall, the enthusiasm of the community to make submissions, the coverage given to the Committee in the press and substantial support from commentators makes the Committee's continued life appear assured.
Rights Issues Involving The Victorian Police
Continued from a paper: Parliamentary Protection of Rights in Victoria
I wish to briefly discuss rights issues in Victoria insofar as they relate to police conduct. In any society, there will be times when the police or authorities will act in a way which infringes the rights of citizens. As the President of the International Commission of Jurists, Mr Justice Michael Kirby, has said recently, the test of a society is the way in which it responds to these matters. A society concerned with the protection of civil rights must ensure that such infringements must be investigated and steps must be taken to ensure that appropriate compensation is made and that steps are taken to try to prevent such things happening again.
In Victoria, primary responsibility for regulating the police falls to the Police Commissioner who acts through an internal investigations branch. Although this body generally acts well, there is the natural suspicion that it's Ceaser investigating Ceaser.
An additional safeguard is in the office of the Ombudsman. By way of background the Office of the Ombudsman was established under the Ombudsman Act 1973. The function of the Ombudsman is to investigate complaints concerning administrative actions taken in Government departments, Statutory bodies or by Officers and employees of municipal councils. The Deputy Ombudsman (Police Complaints) receives complaints made by the public against members of the police force, investigates complaints and oversees and monitors the investigation by police of complaints.
Police Conduct in Victoria
In 1994 there was great public outrage over three matters. They involved three matters: fatal police shootings in confrontations generally involving the mentally ill; police conduct at a demonstration at the Richmond school site (where a suburban High School was being converted to a state girls' school); and, the Tasty Nightclub raid when police raided a gay nightclub and stripsearched almost all patrons in a search for drugs.
In my view, Victoria passes the test set by Mr Justice Kirby. Not only has the Ombudsman reported, but the entire police force is to be retrained to try to ensure that the problems do not-re-occur. Such measures provide some evidence for the proposition that there is some effective protection of rights in existence. Let me look at these matters in greater detail.
Reviews of Police Shootings
Following fatal shootings over several years, the Government and the Victoria Police arranged four different reviews of police shootings. These reviews have been completed and the Victoria Police have set up new operational procedures which stress the safety of police members, of members of the public, and of offenders or suspects.
Project Beacon was set up under Assistant Commissioner Ray Shuey to provide a revised set of training and operating principles for every police member and to develop Force policies. This reflects a refocussing of police attitudes to the current Victoria Police standard that `the success of an operation will be primarily judged by the extent to which the use of force is avoided or minimised.'
Over a period of six months all operational police who need to carry firearms will be retrained. The five-day Operational Safety and Tactics Training Course of five days includes assessing the risks involved in a situation, deciding how to manage these risks, and using conflict resolution skills and defensive tactics to manage the situation. Trainees are assessed in the areas of theory, attitude and the use of defensive tactics and firearms; at the end of the training only qualified and trained members will be permitted to carry a firearm. Further training will be given to these police every six months.
The high level of financial and staff resources committed to this training by the Victoria Police is a measure of the Government's commitment to this project.
In situations where offenders and suspects are armed or suspected of being armed and on conducting forced entry searches, police will, as far as possible, give a high priority to a planned "cordon and containment" approach where the potential for violent confrontations is high.
In authorising the issue of warrants for forced entry searches, police officers now must be satisfied that a thorough risk assessment has been conducted to determine whether the offender of suspect is likely to be armed, the safest option for action is chosen, and the execution of the warrant is properly planned with due regard to the safety of all involved.
A Task Force composed of Frank Honan, an independent and impartial Chair, Dame Margaret Guilfoyle as an eminent person who represents community interests, and Bruce Swanton, a Criminologist who was the Project Director of Task Force was established to monitor the implementation of various recommendations on police shootings. Most of the recommendations have been implemented. Every operational member has participated in training on how to manage and handle persons either known to be mentally ill or whose behaviour would lead an average person to believe that the person was mentally ill. The training was designed after input from the Department of Health and Community Services and from consultants. This training was fully implemented in the first half of last year. Additional training is provided on an ongoing basis, that is Ôas required'. These initiatives have been seen by the Training Department of Victoria Police as resulting in a change in the general attitude of operational members so that they will be more gentle in their handling of these sensitive matters.
The Protocol for use by police and Psychiatric Services staff in their dealings with mentally ill was finalised and published in September 1995.
These new initiatives aim to ensure there is a proper balance between the rights of community safety and the need to avoid violence where possible. Police have recently resolved several difficult and potentially dangerous situations peacefully.
Deputy Ombudsman's Report on Richmond and East Melbourne Demonstrations
Following a baton charge which was televised around the world, the government and the deputy ombudsman had implemented enquiries.
Before the Deputy Ombudsman's Report on the Richmond and East Melbourne demonstrations had been tabled in Parliament, the Victoria Police had already implemented a review of the techniques used in crowd control and at demonstrations. These changes included:
0. upgrading the level of senior offers present at demonstrations;
0. requiring that the operational commander authorise any use of force against passive demonstrators;
0. requiring all commissioned officers attend a series of workshops on decision-making in today's social environment and on understanding community expectations;
0. discontinuing the use of pressure points above the shoulder;
0. revising instructions to police on dealing with demonstrators and public disorder, and
. requiring district commander to make social environment and risk assessments at the time of planning such actions.
Commerce Club - The Tasty Nightclub
As Mr Justice Kirby said on this matter, an encouraging aspect was the condemnation the next day, not only by the President of the Council for Civil Liberties, but the Premier himself.
Following the Deputy Ombudsman's Report on the Commerce Club raid which found wrongful conduct on the part of some of the police, the Victoria Police has prepared revised and radically changed instructions for searching people. These instructions were prepared following consultation with a number of community groups including the respresentatives of the gay community. They include detailed instructions to ensure the respect, dignity and privacy of the individual.
Conclusion to this section:
Victoria, like the rest of the country, must continue to assess itself and the conduct of its officials against the most stringent human rights standards. It must be open to outside scrutiny. The examples I have given demonstrate a sensitivity to doing the right thing! From the Premier down there is an instinctive support for civil rights which is common across the nation.
Continued from a paper: Parliamentary Protection of Rights in Victoria
The Scrutiny of Acts and Regulations Committee does constitute a model for making the Parliament more effective in protecting the rights of Australiana. It has offered a mechanism whereby every regulation and bill of the Victorian legislative process is assesses against the most stringent international standards.
In a Parliament dominated by the government parties, it has achieved change in bills lying in the Parliament. Even more importantly, it has led to changes in drafting practices common not only in Victoria but interstate.