Wednesday, 15 October 2008
Scrutiny of Bills Committee; Report
On behalf of the Chair, Senator Coonan, I present the 11th report of 2008 of the Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 11 of 2008.
Ordered that the report be printed.
That the Senate take note of the report.
I seek leave to incorporate a tabling statement in Hansard.
The statement read as follows—
In tabling the Committee’s Alert Digest No. 11 of 2008, I would like to draw the Senate’s attention to several provisions in the National Measurement Amendment Bill 2008.
The provisions, which can be found at item 65 of Schedule 1, create offences of strict criminal liability.
The Committee will generally draw to Senators’ attention provisions which create strict liability offences. Where a bill creates such offences, the Committee considers that the reasons for their imposition should be clearly set out in the explanatory memorandum which accompanies the bill.
The Committee is satisfied that a general explanation for the majority of the proposed strict liability offences in this bill is provided in the explanatory memorandum. The Committee is particularly pleased to note that the explanatory memorandum specifically states that the Committee’s Seventeenth Report of 2000 and Sixth Report of 2002 were considered in the course of framing the strict liability offences in the bill.
However, the Committee would like to point to two proposed offences of strict liability which it considers unusual.
Proposed new subsections 18MH(5) and 18MI(4) create offences of strict criminal liability if, respectively:
- a person refuses or fails to comply with a requirement to answer questions or produce books, records or documents requested by an inspector under subsections 18MH(2) or (3); or
- a person refuses or fails to comply with a requirement to provide an English translation of a book, record or document under subsection 18MI(2).
Proposed new subsections 18MH(4) and 18MI(3) create the same offences, but make them subject to the prosecution proving that the alleged offender intended to commit the offence.
The Committee is not aware of any previous example in legislation of a refusal or failure to provide information to an official being an offence of strict liability, thereby rendering the offender’s intentions irrelevant.
The Committee notes that the only explanation given in the explanatory memorandum (apart from the general explanation of the reasons for strict liability in the bill) is that:
- ‘Proposed subsection 18MH(4) provides that a person commits an offence if he or she refuses or fails to comply with a requirement under subsections 18MH(2) or (3), for which the penalty is 200 penalty units (currently $22,000). Proposed subsection 18MH(5) creates an equivalent strict liability offence, with a penalty of 40 penalty units (currently $4,400). Both provisions are intended to deter people from refusing or failing to comply with the section.’
The explanatory memorandum offers an analogous explanation in relation to proposed subsections 18MI(3) and 18MI(4).
The Committee considers that, despite the general explanation of the reasons for strict liability in the bill, these particular provisions come within that general comment only insofar as the penalty for the strict liability offence is much less than for the fault-based offence.
As a result, the Committee has had to seek advice from the Minister about the reasons for these provisions. The Committee considers that the explanatory memorandum does not include sufficient information to allow the Committee to make a decision about whether the imposition of strict liability appears reasonable in the circumstances.
Pending that advice, I draw these provisions to the attention of Senators, as they may be considered to trespass unduly on personal rights and liberties.
I commend the Committee’s Alert Digest No. 11 of 2008 and Eleventh Report of 2008 to the Senate.
I want to speak briefly to the motion as this year has been an important one for the Scrutiny of Bills Committee, no less due to the fact that we will see shortly the retirement of Emeritus Professor Jim Davis. Professor Davis is due to leave the committee at the end of the year and, as I have recently completed my term as chair of that committee, I wanted to place on record the committee’s appreciation of the great work that Professor Davis has done.
Emeritus Professor Jim Davis has been the committee’s longest serving legal advisor, having been involved with the committee since 1983. His tenure was interrupted only by a 13-month leave of absence, during which time the committee was assisted by the late Emeritus Professor Douglas Whalan, also from the ANU law faculty. Of course Professor Davis himself came from the ANU law faculty. In 1968 he started there and he retired in 2001. On retirement he was appointed an Emeritus Professor of the university and a visiting fellow in the faculty. He teaches in the areas of contract, tort and the conflict of laws in the faculty’s postgraduate program. He was also the legal adviser to the Standing Committee for Regulations and Ordinances from 1997 to 2000.
I thought to contact Senator Andrew Murray, who was a very long-serving member of the committee, and seek his comments in relation to Professor Davis because he had been on the committee for a very long time with Professor Davis. He gave a very insightful view of Professor Davis and asked me to relay it to the Senate. Senator Murray indicated that it was a great privilege to do this and that the time he had served with Professor Davis was about 12 years, so that gives you some idea of the association. He said:
Jim was learned, funny, independent, modest, insightful and principled. His weekly summations of key points for the committee to consider were always accepted as worthy and inevitably accurate inputs by every senator and from every chair even when, or perhaps because, they were often accompanied by pungent asides and the merits of those guilty of legislative sins. I am honoured to have known such a man and to have served with him.
I think that is an accurate assessment of Professor Davis, who always provided a rather dry humour in his assessment of the various bills that the Senate committee was looking at. In fact, there were a number of areas that he zealously guarded. Of course you have to look at the Scrutiny of Bills Committee’s terms of reference to remember how important the work is in relation to the scrutiny of Senate legislation. When we look at those terms of reference we see that legislation is not to:
- trespass unduly on personal rights and liberties;
- make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;
- make rights, liberties or obligations unduly dependent upon non-reviewable decisions;
- inappropriately delegate legislative powers; or
- insufficiently subject the exercise of legislative power to parliamentary scrutiny.
That was something which Professor Davis looked at very closely and he was, without fear or favour, absolutely accurate in the advice he gave to the committee, no matter who was under consideration by virtue of the minister concerned or the government of the day. He was one for looking at explanatory memorandum, whether they were of assistance to the Senate and outlined the reasons for strict liability and whether the penalties imposed in the bill was appropriate under Commonwealth guidelines or not.
On behalf of the committee, I want to say to Professor Davis that we are deeply grateful for the great work that you provided the committee and, through that, to the Senate and also for the great service to the people of Australia. This is what makes our democracy so great and so strong. It is with a Senate committee such as the Scrutiny of Bills Committee that we can protect the essential liberties and rights of people. With the advice that Professor Davis gave, the committee was able to carry out its job in a manner that was much more effective.
I also thank the staff who helped. Cheryl Wilson, the secretary, retired this year and went to work for the Department of Health and Ageing. I thank Cheryl for her work. I also thank Margaret Lindeman, who has been the administrative officer since January 1995, for her ongoing work. I was on the Scrutiny of Bills Committee back in 1994 and I remember when Professor Davis and Margaret Lindeman came along to join the staff later. That continuity has been so good for the committee. On a more personal note, I want to thank those senators serving on the committee—Senators Bishop, Cameron, Collins, Siewert and Troeth—for the assistance they gave me when I was chairman and the great work they have done. The Senate Scrutiny of Bills Committee is indeed a committee which is essential to the good work of the Senate but it is often perhaps overlooked and certainly in the public domain would not be widely known. It is with those remarks that I acknowledge the great work that Professor Davis has done.
Question agreed to.