Parliamentary scrutiny processes

3.21     Parliamentary debate is the ultimate forum for the scrutiny of, and judgments about, encroachments on rights. However, in order to ensure the Parliament is well-informed in conducting such debates, a number of scrutiny committees specifically consider whether Commonwealth laws encroach upon rights. This process began with the Regulations and Ordinances Committee, established in 1932, to review delegated legislation.[26] The scrutiny function was expanded with the introduction of the Scrutiny of Bills Committee in 1981. Both Committees have a longstanding history of conducting a technical scrutiny function, without specifically assessing the policy merits of a particular provision.[27] In 2011, the Human Rights Committee was established to consider a set of human rights specifically tied to Australia’s international human rights obligations.

3.22     Additionally, the Parliamentary Joint Committee on Intelligence and Security (Intelligence Committee), Parliamentary Joint Committee on Law Enforcement (Law Enforcement Committee) and the Senate Standing Committee on Legal and Constitutional Affairs[28] (Legal and Constitutional Affairs Committee) review legislation which may have an impact on rights, including in relation to migration, counter-terrorism and national security legislation.

Senate Standing Committee on Regulations and Ordinances

3.23     The Regulations and Ordinances Committee was established in 1932. It is comprised of six Senators. It is required to review and, if necessary, report on whether disallowable instruments:[29]

  • are in accordance with the applicable statute;

  • unduly trespass on personal rights and liberties;[30]

  • unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal;[31] or

  • contain matters more appropriate for parliamentary enactment.[32]

3.24     The Committee is supported by a secretariat and a legal adviser.[33] The legal adviser reviews all disallowable instruments against the Committee’s scrutiny principles, and provides a report on compliance.[34]

3.25     Legislative instruments must be registered, and then tabled before both Houses of Parliament within 6 days of registration. Copies of the instruments are sent to the legal adviser, who provides the Committee with a report on compliance with the Committee’s scrutiny principles.

3.26     Where an instrument raises a concern with respect to the matters being tested, the Regulations and Ordinances Committee usually writes to the relevant rule-maker[35] for further explanation, or to seek an undertaking for specific action to resolve the concern.[36] This process is usually completed within 15 sitting days of the instrument being tabled, to allow the Committee to seek disallowance of an instrument if its concerns are not allayed.

3.27     Where the scrutiny process is not completed, the Regulations and Ordinances Committee may move a notice of motion for disallowance in order to provide it with sufficient time to complete its review, and retain its power to seek disallowance if concerns about compliance with its scrutiny principles are not addressed.[37] The power to seek disallowance is a powerful tool, which acts as a discipline on rule-makers. The Senate has adopted all disallowance motions recommended by the Regulations and Ordinances Committee.[38]

Senate Standing Committee for the Scrutiny of Bills

3.28     The Scrutiny of Bills Committee was established in 1981, with its functions at first carried out by the Legal and Constitutional Affairs Committee.[39] In May 1982, the Scrutiny of Bills Committee was constituted as a separate Committee, and in 1987 as a Standing Committee of the Senate.[40] The scrutiny principles applied by the Committee are drawn from those of the Regulations and Ordinances Committee, and require it to consider whether Bills or Acts:

  • 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.[41]

3.29     The Committee is comprised of six Senators, and is supported by a secretariat made up of a secretary, principal research officer and legislative research officer. The Committee is also supported by a legal adviser,[42] who reviews all Bills against the scrutiny principles, and provides a report on whether and how the principles are breached. Based on this advice, the Committee publishes, on each Wednesday of a Parliamentary sitting week, an Alert Digest containing an outline of each of the Bills introduced in the previous sitting week, along with any comments in relation to a particular Bill.

3.30     If concerns are raised in the Digest, the Committee writes to the Minister responsible for the Bill, inviting a response to its concerns, and sometimes suggesting an amendment. The Minister’s response may include a revised version of a section of legislation or explanatory memorandum, or may better explain why the Bill has appeared in its current form. If the response does not allay the Committee’s concerns, it will draw the provisions in question to the Senate’s attention through its Report, and leave it to the Senate to determine the appropriateness of the relevant encroachment on rights and freedoms in the Bill.

3.31     The Committee’s concerns, the Minister’s responses and the Committee’s conclusions are published in a Report. Since February 2015, the Committee also publishes a newsletter highlighting key scrutiny issues. It focuses on ‘information that may be useful when Bills are debated’.[43]

Parliamentary Joint Committee on Human Rights

3.32     The Human Rights Committee was established under s 4 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (Parliamentary Scrutiny Act). It must examine all Bills and legislative instruments (including exempt instruments) that come before either House of Parliament for compatibility with human rights, and report to both Houses on that issue.[44] The Human Rights Committee is an extension of existing parliamentary rights review mechanisms, and is explicitly focused on international human rights instruments.

3.33     The Parliamentary Scrutiny Act defines human rights as those rights and freedoms declared in the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESR),[45] as well as a number of other international instruments relating to rights in the ICCPR and ICESR.[46]

3.34     The Committee is comprised of 10 members, drawn from the Senate and the House of Representatives,[47] and is supported by a legal adviser and secretariat, which includes two human rights lawyers.[48] If the Committee is not initially satisfied with the human rights compatibility of a Bill, it will write to the relevant Minister seeking further detail. The Committee also has the power to request a briefing, call for written submissions, hold public hearings and call for witnesses.[49]

3.35     On each Tuesday of a Parliamentary sitting week, the Committee publishes a report commenting on provisions raising human rights concerns, or where insufficient information has been provided to allow it to undertake an analysis. The Committee also comments on responses received to comments it has made in earlier reports.

3.36     The Committee seeks to determine ‘whether any identified limitation of a human right is justifiable’[50] by reference to a proportionality analysis.[51]

Senate Standing Committee on Legal and Constitutional Affairs

3.37     The Senate Legal and Constitutional Affairs Committee (Legal and Constitutional Affairs Committee) is one of eight legislative and general purpose Standing Committees first established in 1970. Each Committee is allocated a group of departments and agencies to oversee.[52] The Legal and Constitutional Affairs Committee oversees the Attorney-General’s Department and Department of Immigration and Border Protection.[53] It scrutinises a number of laws which have a significant impact on rights, such as migration law, and counter-terrorism and national security legislation.

3.38     These Committees are appointed under Senate Standing Order 25 at the commencement of each Parliament,[54] and are comprised of a pair of sub-committees, the Legislation sub-committee, which deals with Bills,[55] estimates processes and oversees departmental performance, and the References sub-committee, which deals with references from the Senate.[56]

3.39     In reviewing Bills, the Legislation and References Committee is required to take into account comments made by the Scrutiny of Bills Committee.[57] Consideration of the Bill on the floor of the Parliament is suspended while a legislative or general purpose Committee is scrutinising a Bill.[58] As a result, the Constitutional and Legal Affairs Committee must consider encroachments on rights to the extent that the Scrutiny of Bills Committee raises these issues in its reports. As discussed above, the Scrutiny of Bills Committee is specifically required to review Bills to determine whether they trespass on personal rights and liberties.

3.40     Each of the legislative and general purpose committees (including the Legal and Constitutional Affairs Committee) has six Senators.[59] The Committees have the power to appoint persons with specialist knowledge.[60]

Parliamentary Joint Committee on Intelligence and Security

3.41     The Parliamentary Joint Committee on Intelligence and Security (Intelligence Committee) was established in 2001, under s 28 of the Intelligence Services Act 2001 (Cth) (Intelligence Services Act). It has eleven members.[61] Five members are drawn from the Senate and six from the House of Representatives.[62]

3.42     The Intelligence Committee is required to review any matter relating to Australia’s intelligence and security agencies that is referred to it by the Attorney-General or a resolution of either House of Parliament.[63] This includes reviewing Bills relating to national security that come before the Parliament. The Committee may also request the Attorney-General to refer a matter to it.[64] Some examples of Bills the Intelligence Committee has reviewed since January 2014 include the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014(Cth), Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth), and the National Security Legislation Amendment Bill (No. 1) 2014 (Cth).

3.43     The Intelligence Committee also has a role in post-implementation review. It is required, under s 29 of the Intelligence Services Act, to review the operation, effectiveness and implications of the following provisions by 7 March 2018: [65]

  • Australian Security Intelligence Organisation Act 1979 (Cth): pt III div 3;

  • Crimes Act 1914 (Cth): pt 1AA div 3A;

  • Criminal Code: divs 104 and 105;[66] and

  • Criminal Code: ss 119.2 and 119.3.

3.44     The Intelligence Committee is required to review pt 5-1A of the Telecommunications (Interception and Access) Act 1979 (Cth) (Interception and Access Act) by 13 April 2020. Additionally, where a Bill seeks to amend provisions in the Interception and Access Act that would expand the scope of data retention powers, that Bill must be referred to the Intelligence Committee for review.[67]

3.45     The Intelligence Committee is also required to monitor and review the performance of the Australian Federal Police’s functions under pt 5.3 of the Criminal Code.[68]

3.46     While the Intelligence Services Act does not expressly require that the Intelligence Committee consider rights as part of its review of Bills, in practice the Committee considers whether the Bill provides adequate safeguards and accountability mechanisms.[69] These are matters that are relevant to whether encroachments on rights are justified.[70] The Intelligence Committee has the power to conduct private hearings,[71] which may allow it to conduct a more thorough evidence-based review of justifications for encroachments on rights based on national security concerns, as it can hear and take into account sensitive matters of national security that cannot be made public.

Parliamentary Joint Committee on Law Enforcement

3.47     The Parliamentary Joint Committee on Law Enforcement (Law Enforcement Committee) was established in December 2013, and is comprised of ten members.[72] Five members are drawn from the House of Representatives and five from the Senate.[73]

3.48     The Law Enforcement Committee is concerned mostly with the activities of the Australian Crime Commission (ACC) and the Australian Federal Police (AFP). It is required, among other things, to examine trends and changes in criminal activities, practices and methods and report on changes it thinks desirable to the structure, functions, powers and procedures of the ACC and AFP.[74] It is also required to oversee the operation of pt 2–6 and s 20A of the Proceeds of Crime Act 2002 (Cth).[75]

3.49     The Law Enforcement Committee is not expressly required to consider rights as part of its review. However, its oversight functions are designed to monitor the implementation and operation of legislative frameworks which may encroach upon rights.[76]