Judith Adams (WA, Liberal Party) Share this | Link to this | Hansard source

I present a report and Alert Digest of the Standing Committee for the Scrutiny of Bills.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

I seek leave to incorporate a tabling statement in Hansard.

Leave granted.

The statement read as follows—

In tabling the Committee’s Alert Digest No. 6 of 2010 and its Sixth Report of 2010 I draw the Senate’s attention to the Committee’s comments on:

• the importance of explanatory memoranda; and
• the Paid Parental Leave Bill 2010.

In scrutinising the bills for Alert Digest No. 6 the Committee had occasion to comment on the quality of several of the explanatory memoranda accompanying the bills.

The Committee is concerned when there are items in bills which are not addressed in the explanatory memorandum accompanying the bill.

An explanatory memorandum is important in a number of different ways:

• to assist with the scrutiny of legislative proposals before they become law;
• more generally to assist those whose rights may be affected by a bill to understand the legislative proposal; and
• an explanatory memorandum can be needed by a court to interpret the legislation under section 15AB of the Acts Interpretation Act.

The Committee is itself directly aware that an explanatory memorandum is an essential aid to effective Parliamentary scrutiny (including by the Scrutiny of Bills Committee).

An explanatory memorandum is particularly useful when it contains important context and relevant policy information and outlines the intended operation of each provision.

In relation to the scrutiny process, a well-written explanatory memorandum can provide the foundation for avoiding adverse comment because whether or not a provision is of concern often depends on the context in each case. An explanatory memorandum can be used to demonstrate that a policy approach reflects an informed choice and is fully justified.

I am pleased to tell you that in Alert Digest No. 6 there are a number of examples of this. To note one instance, the Electoral Pre-Poll Voting Bill at Schedule 2, items 3 and 188 contains a wide delegation of power that could be of concern to the Scrutiny of Bills Committee if it constituted an inappropriate delegation of legislative power. In this case the use of the delegation was comprehensively explained in the explanatory memorandum and this alleviated any concerns the Committee might have otherwise had about the provision.

Unfortunately the opposite is also true. The Committee regularly encounters provisions that, from a scrutiny perspective, turn out to be appropriate, but the absence of an adequate explanation in the explanatory memorandum attracts the Committee’s attention. The Committee usually seeks further advice about each provision until the rationale for the provision is understood.

In Alert Digest No.6 the Scrutiny Committee notes that it is seeking advice on 2 bills in relation to deficiencies in the quality of the accompanying explanatory memoranda.

I also draw to the Senate’s attention the Committee’s comments in Alert Digest No. 6 on the Paid Parental Leave Bill 2010. From a scrutiny perspective this bill has attracted a number of adverse comments relating to various issues of concern, including:

• the determination of important matters by regulation;
• apparently severe penalties for some offences;
• the exclusion of merits review without justification; and
• possible undue trespass on personal rights and liberties.

More details about the Committee’s scrutiny of this bill, and others, is contained in Alert Digest No. 6 of 2010 and I commend the Committee’s Alert Digest No. 6 of 2010 and Sixth Report of 2010 to the Senate.

Question agreed to.