George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

At the request of Senator Robert Ray, I present the third report of 2007 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 3 of 2007, dated 21 March 2007.

Ordered that the report be printed.

I seek leave to move a motion in relation to the report.

Leave granted.

I move:

That the Senate take note of the report.

I seek leave to incorporate a tabling speech in Hansard.

Leave granted.

The statement read as follows—

In considering the bills that come before it, the Scrutiny of Bills Committee places considerable reliance on the explanatory material that accompanies each bill, in particular the explanatory memorandum.  If this material does not clearly explain the operation and impact of the legislative proposal under consideration then the work of both the committee and the Senate is made more difficult. 

In the Committee’s Third Report of 2007 both the Attorney General and the Minister for Justice and Customs agreed to amend the explanatory memoranda for the Bankruptcy Legislation Amendment (Debt Agreements) Bill 2007 and the Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2007 respectively, to address concerns raised by the Committee. On behalf of the Committee I would like to thank the Attorney General and the Minister for these commitments. 

However the Committee remains concerned that it has to regularly seek information from ministers that should be included in explanatory memoranda.  This includes information on delayed commencement provisions, despite the fact that the Office of Parliamentary Counsel Drafting Directions indicate that such provisions should be explained in the explanatory memoranda. The Committee also regularly seeks advice on issues such as retrospectivity, the rationale for absolute and strict liability offences, legislation by press release, the wide delegation of powers and the reversal of the onus of proof.

Examples are included in the Committee’s Third Report of 2007, whereby Ministers have provided explanations for retrospectivity, in the case of the ACIS Administration Amendment (Unearned Credit Liability) Bill 2007, and strict liability, in the case of the Aviation Transport Security Amendment (Additional Screening Measures) Bill 2007, that are acceptable to the Committee.  Had these explanations been included in the explanatory memoranda to these bills the Committee could have satisfied itself that these provisions did not trespass unduly on personal rights and liberties, without recourse to the Minister.

The Legislation Handbook developed by the Department of the Prime Minister and Cabinet states that explanatory memoranda:

“should not simply repeat the words of the bill or restate them in simpler language.  The notes should explain the purpose of the clause and relate it to other provisions in the bill, particularly where related clauses do not appear consecutively in a bill.  Examples of the intended effect of the clause, or the problem it is intended to overcome, may assist in its explanation.”

Despite this direction, the Committee regularly sees explanatory memoranda that simply regurgitate words from the bill or fail to explain the purpose of potentially significant trespasses on personal rights and liberties, such as the imposition of absolute or strict liability.

If legislation is to be accessible to and understood by the Committee, the Senate and the community, it is essential that those preparing explanatory material include clearer and more fulsome explanations of provisions than currently occurs.  The Committee urges Ministers to ensure that explanatory memoranda are put through a rigorous quality assurance process so that they can best meet their aim of assisting “members of Parliament, officials and the public to understand the objectives and detailed operation of the clauses of the bill.” (1999, Legislation Handbook)

Question agreed to.