Scrutiny of Legislation Conference 2024

Dr RAHMAN (Fong Lim): Madam Speaker, the Australian-New Zealand Scrutiny of Legislation Conference was held in the Parliament of Victoria in December 2024. Several members of the Legal and Constitutional Affairs Committee attended—those being me and the Members for Daly and Wanguri. We were accompanied by the Legislative Assembly Committee Secretary.

It was the intention of the Legal and Constitutional Affairs Committee to submit a formal committee report to the House during the February and March sittings, but unfortunately, owing to changes in Bill scrutiny reporting timeframes, it became impossible because there are, frankly, limitations in the Committees office, with the office being asked to do a lot of things on short notice.

I am pleased to note that there are recent additions to staffing in the Committees area. They are extremely welcome, and I am delighted to see some of them in Chamber right now. I am sure they will help us all in our work on committees.

Consequently, the Legal and Constitutional Affairs Committee members decided to avoid further delay in reporting back to the House, and instead speak to the matter today in adjournment to ensure we can draw some of the useful things we learned back to the House for the Assembly’s benefit. It is serendipitous, because there has been a lot of attention drawn towards matters of scrutiny in this place in recent times.

I seek leave to table four papers arising from that conference: the conference program; the combined jurisdictions report; a paper by Mr Alex Hickman, the Legal Advisory Officer from the WA Legislative Council; and a paper by the Hon Natasha MacLaren-Jones, Member of the Legislative Council, Chair of the Regulation Committee of the New South Wales legislative committees.

Leave granted.

Dr RAHMAN: On the first paper, the breadth of the program speaks to the fact that there is an awful lot to think about beyond nitpicking. A range of stakeholders from all parliaments across the country, as well as New Zealand, were represented. We looked at things like COVID-19 legislation, which came through aggressively, as many of you would remember; emergency legislation, what it is and what it is not; the role and purpose of scrutiny committees; the use of AI in scrutiny committees to pick up on little things, particularly with respect to subordinate and delegated legislation; statutory silence; Henry VIII powers, which everyone should know about; explanatory memoranda; animal rights; life cycle models to involve post-enactment legislative scrutiny; and real versus lip service to things like human rights and democratic processes.

There is a tonne of stuff I could talk about in relation to all of that, but I will leave it to all of you to read the documents and learn yourselves.

In sum, what would be clear to any MLA here who had the benefit of going to that conference is this: large parts of NT process for several terms of government are not following national best practice, let alone international best practice. There is something for us to learn in that.

If we go to the jurisdiction reports, which is the second document I tabled, the first thing you will note is that everyone who attended provided one, except us. That is for a number of reasons, one of which is administrative and practical, but at the same time, we cannot be the outlier jurisdiction in the country repeatedly; we just cannot. It is important that we have a seat at the table at these things and provide information.

In fairness, there was a change of government, so there was a narrow window of time in which to provide that report. There was a technical issue as well. However, we have not participated in a lot of these national or international fora for a number of years. We need to build bridges with the rest of the country and let them know what we are up to if we want to be assisted by them.

If you look at the jurisdiction reports you will learn a lot, and you will learn that activity in all states and territories varies wildly. Suffice to say, scrutiny plays a much more significant role in every other jurisdiction other than ours. That is not surprising considering we did not even have a scrutiny committee for the last four years. I am delighted we at least have one now.

Look at the Commonwealth; it has three scrutiny committees, essentially. If you look at the five-year statistics, you will find that it picks up a lot of problems with laws. That is the Commonwealth, with all its money and resources, and all its time to make good laws. Still, after all that, roughly 25% of all Senate Standing Committee for the Scrutiny of Delegated Legislation assessments find a problem, and more than 50% Senate Standing Committee for the Scrutiny of Bills assessments find problems. You do not want to pass laws with holes and problems in them. That is why Westminster systems around the world have scrutiny committees with a range of functions.

I will focus on only two of them that I want us to try to corral around, because they are positive things that would improve things for everyone in here in respect of all the laws we are making. The first one pertains to the third paper I tabled. It is a paper by Mr Alex Hickman, who is the Legal Advisory Officer from the WA Legislative Council. He has written a paper called ‘Explanatory Memorandums for Proposed Legislation in Australia: Are They Fulfilling Their Purpose?’ It is a good thing to read.

Here is the key thing to understand about it. A number of the jurisdiction reports I am talking about highlight the fact that there are challenges of both primary and subordinate legislation when explanatory statements and tabling notes are variable and sometimes, regrettably, have extremely poor quality.

The Northern Territory has a legislation handbook that provides some guidance, but the fact remains that some of our explanatory statements ain’t amazing either. If you compare some of our recent ones, Serial 18 versus Serial 13 of this year, you see that one is 127 words on one page and tells you nothing; the other is 14,000 words and 16 pages long. We have a problem there, right?

They are both much better than Serial 125 from 2024, which the Minister for Alcohol Policy was in charge of. Ironically it reads like somebody was drunk when they were drafting it because it contains the words, ‘consemotion’, ‘aemployee’, ‘complay’ and ‘coluse’, which I think are meant to be consumption of alcohol, employee, compliant and clause. It is laughable that we would have this level of mistakes in legislative documents.

Why does this matter? It matters because the judiciary relies on these documents alongside second reading speeches to interpret our laws and to understand the intent of why we are passing laws, but before we can even get to that stage it is difficult to scrutinise the Bill without the comprehensive explanatory documents that support it.

Andrew Hickman suggests that merely paraphrasing the Bill clauses is insufficient. We need background, context, rationale and identification of Henry VIII clauses, and what he suggests is the best-practice environment in the country is the Queensland Parliament. Maybe we could look at what they are doing in Queensland with explanatory memoranda as guidance in that regard.

I will not paraphrase the whole paper, but essentially this guy’s work is based on his PhD. He spent forever thinking about these issues, and his critique involves looking at Westminster systems everywhere as well as surveys of parliamentary staff across every parliament in the country. It teaches you a lot, including the fact that explanatory memorandums have only been used widely since the 1980s. Previously they were used only for complex Bills. It is important, as we recognised yesterday, with the passing of the Attorney-General’s omnibus Bill—unanimously on the voices, I might add—that we agree that laws and legal processes cannot remain static; we have to adapt to the times.

The final paper I submitted is called ‘Breaking New Ground: Expanding the Scrutiny Function of the New South Wales Legislative Council’s Regulations Committee’. It is drafted by the Liberal Upper House member, Hon Natasha Maclaren-Jones. It was based on the 2020 report that asked them to inquire into the making of delegated legislation, and it led to the creation of bipartisan support for the creation of a regulation committee chaired by the opposition with self-referral powers and expanded remit to look at all legislative instruments regardless of their form.

Further work was done in 2022, and the key thing I draw attention to is recommendation 9, which asked that a dedicated legal adviser be appointed to support the regulation committee in its technical scrutiny function. Suffice to say, there may be merit in this legislature also starting to consider the merits of having dedicated legal resources in-house, independent of the Office of the Parliamentary Counsel, to assist the Legislative Scrutiny Committee with its work but also the Legal and Constitutional Affairs Committee with its work— perhaps one that could even contribute towards guiding legislative drafting instructions when we are so required to undertake such tasks under the terms of inquiry terms of reference.

We are lucky, but quite vulnerable, when it comes to seeking guidance from external counsel when deliberating. If it was not for the assistance of Professor Ned Aughterson, a number of us would frankly be at a loose end in a lot of our committee deliberations.

In closing, I will reflect on a couple of sentiments. One was by Lynda Voltze, the long-serving New South Wales MLC and MLA Member for Auburn, who is widely respected for the fact that she has been in the game for so long. She has noted that scrutiny committees are only as robust as the democratic processes that surround them. She did so talking about the famous 1987 Fitzgerald Inquiry, which all of you should look at if you do not know about the about inevitable tendencies towards corruption unless you invest in scrutiny.

Finally, I would say in the words of the Hon Robert French, former Chief Justice of the High Court of Australia:

The importance of pre-enactment scrutiny… cannot be underestimated. It is obviously far better to address problems of unintended legislative overreach, doubtful expression or impact on basic rights and freedoms that the pre-enactment stage, than to rely on the mitigating effects of judicial interpretation.

I am pleased that this government has restored the scrutiny committee after it was removed by the last government. I encourage my fellow parliamentarians to reflect on these documents I have provided tonight to consider practical ways in which our jurisdiction might take more positive steps in the direction of strengthening our democratic governance.