Friday 25th March 2011

PO Box 5142

Attention: Senate Standing Committee for the Scrutiny of Bills

Re: Enquiry Into Standing Terms of Reference of Senate Standing Committee for the Scrutiny of Bills

Dear Mesdames et Messieurs,

I write in support of a reforming the standing terms of reference of the Senate Standing Committee for the Scrutiny of
Bills in order to promote the aim of quality not quantity for the parliament’s legislative output.

The major strategic problem that government faces in Australia is poor quality legislation. In summary, to achieve the
ideal republic where citizens enjoy the best possible outcome, we must eschew voluminous legislation full of
inordinate detail, but instead address social questions using the opposite approach of tersely drafted and cleverly
drafted acts of parliament that apply grammatical principles of organisation to addressing a social problem by
determining a question by statutory provision only where it is established that the legislation will improve things.

Other reasons why a governmental approach to addressing a social question can fail are when it is not found possible
to recruit public servants with the right attitudes and charities to administer the said programme properly, such as with
the recent pink batts fiasco and the ongoing problem of teachers refusing to teach, must be distinguished from
inherently stupid policies guaranteed not to work and ineffective policies that use government resources wastefully
because badly designed. We have found through experience that unfettered laissez faire leads to depressions, but
what do we do when the public servants recruited to administer the minimal but effective regulation agreed necessary
target the regulation as though they were nationalising and micro-managing whole industry sectors?

Often that a piece of legislation encapsulates an inherently stupid policy, or that a piece of legislation encapsulates an
ineffective badly designed policy, can be determined by scrutinising the legislation. However, if like the income tax act
and regulations, or the social security acts and regulations, any such policy that uses tens of thousands of pages of
statute law for such social problems must because of the loopholes and ongoing patching to correct drafting errors
ipso facto therefore must be said to encapsulate a badly designed policy simply proven because of the volume of
legislative provisions.

The damage done to the body politic by the Barwick High Court must be reversed if there is to be any hope of the
parliament making Australia into the ideal republic. The constitution should be changed to make it ultra vires for the
parliament to pass an act more than 100 pages, with only a few limited exceptions. Regulation should be put in the
regulations. Also, the number of regulations concurrently in force that any particular act can have should be limited to
100 regulations. The abuse of the legal process to appeal matters of administrative discretion must end. The
constitution should provide that matters of law can be appealed to the courts and matters of administrative discretion
to the relevant minister or the cabinet. The government should establish parliamentary committees to oversee a
consolidation run through the statute book to reduce the total number of pages of all acts of parliament still in force to
the total number of pages that all such acts had in 1971.

Give reformists their due: when and if a reform is proposed that offers general benefit to the ordinary people of
Australia, the policy is properly thought out, suitable public servants are recruited who believe in the policy, and the
policy is implemented in an act of parliament with as few pages as are absolutely necessary, i.e. definitely less than
100 pages, let it pass. However the farce of hasty ill considered policies that get reversed after the next election must
end.

I ask that this contribution to this issue be considered by the members of parliament on the Committee.

Yours Sincerely,

Andrew Oliver (copy with signature to follow by post.)

1.0 Outcomes

Different people involved in politics support different outcomes.

I can imagine several outcomes that might be supported by members of the committee:-
 (i) Consumer sovereignty where consumers do good business with retailers and professionals to mutual
benefit. This end is related to the many means that most conservatives and liberals advocate.
(ii) The greater glory of god, a tradition with associated values that religious conservatives believe in.
(iii) Natural justice, an end associated with natural rights believed in by right wing liberals.
(iv) Social justice, an end associated with a broader view of human rights believed in by left liberals.
(v) Equal outcomes, an educational end advocated by left wing educationists.
(vi) Equality for women, as advocated by feminists.
(vii) The rights of the lower species, as advocated by deep green environmentalists.
(viii) Equality of the races, now generally conceded in theory but typically breached in practice.

And so on and so forth. I recognise that the Green Party are much more moderate than the most extreme deep
greens, but here am trying to distinguish outcomes related to a rights based framework from values based public
policy where liberty is not always licence and some questions are thought to be best addressed by statute law.

2.0 Essentially Bankrupt Neo Liberal Approaches

Trying to interpret all questions in terms of rights, or in terms of rights and obligations, and ignoring the situational logic
of a social question in society at large and the wider world and ignoring physics and chemistry may lead to a silly
policy. Some public policies were established for good reason, and should be examined closely and in a considered
way before change is decided upon.

Many politicians advocate competition. I cannot see why so many advocate this mere means rather than related
outcomes.

With left liberals the same problem occurs. Some human rights charters if one analyses each sentence might seem to
incorporate hundreds of competing rights. But how to organise or decide the precedence of these hundreds of
competing rights?

3.0 The Rights Of Future Generations

Take climate change, now well established as slowly occurring and leading to major problems in fifty to a few hundred
years. What to do in terms of a rights framework? Allocate seats for representatives of those in the future? Build
time machines - if possible - and go and arrange elections in the future and send back members of parliament?

I’d say that climate change needs a science based policy not a rights based policy. And a sound science based
policy. Energy efficiency regulation and water efficiency regulation will prove absolutely necessary here. The first
task is finding a way of recruiting public servants with the right attitudes and charities.

3.0 Regulatory Detail And Statutory Enactment

My opinion is that regulation should be put into the regulations. I note that the Regulations and Ordinances Standing
Committee has a standing term of reference 23 (3) (d) “that it does not contain matter more appropriate for
parliamentary enactment.”

Likewise the Standing Committee for the Scrutiny of Bills should have a standing term of reference 24 (1) (a) (vi) to
the effect “that it does not contain matter being unnecessary detail more appropriate to regulatory enactment by the
Executive Council.”

4.0 Human Rights or Natural Rights?

The terms of reference of this enquiry use the phrase human rights. Whilst I do think that some political and process
rights need constitutional protection by the High Court, in order that political freedom enable the marketplace for ideas
to work in the hope that Australia might become an ideal republic the best of outcomes for the ordinary people, I fear
that to solely focus on human rights to the exclusion of other considerations will lead to human rights for the rich and
the new class, who have the resources to litigate their rights, and nothing for the poor and ordinary people.
5.0 Administrative Powers And Administrative Discretion

Take immigration as an example. The Americans have concluded that immigrants who want to move to America so
far outnumber the number that can be easily absorbed and there are so many with either no documentation or no
special ground that they raffle green cards every year. (Unless it’s changed recently?) How to determine by court
process an immigrant’s or refugee’s claim when there is so often no documentary evidence here in Australia and only
what the applicant says? Whilst there may be grounds for having a review process and an appeal process to the
Minister, this seems to me to be a perfect example of administrative discretion where what one wants to do is recruit
public servants of good character and appropriate charities to make the decisions.

Administrative discretion is administrative discretion. Often it is neither wise nor practical to over define it. However, it
is essential to make sure that those who hold it have good character.

6.0 Delegation Of Legislative Powers

I remember in 1979 and 1980 when I was involved in student politics at the University of Melbourne that for many
years it had been held that there was a general delegation of legislative powers over university affairs to the University
Council. Because of controversial decisions by the Student Representative Council, litigation had occurred that
overturned the precedent, leading to partial chaos. Remember that in 1980 of the forty odd S.R.C. members there
were half a dozen odd Liberal Club students and half a dozen odd National Civic Council students as well as all the
Trotskyist students, Marxist students, A.L.P. students and assorted independents of various kinds. The plurality of
representation of the ordinary students there as well as a number of right wing professors involved in the Academic
Board and the University Council meant that right wing ordinary students found benefit from having their interests
looked after. Nowadays - unfortunately - right wing ordinary people sometimes find political expression in more
racialist ways. The lessons of the 1930’s and 1940’s seem to be being forgotten.

If the plurality of views in the decision making forums that legislative powers are delegated to does not admit of
representation of the interests of the poor and ordinary people, then the delegation may prove inappropriate.

My memory is that the Melbourne University S.R.C. even had the power to fine students for some forms of ill
discipline, though only an unused relic of a power in 1979, and one thinks get the said fine collected by the university
authorities, or, if an ex-student, by the police.

The multi-racial cosmopolitanism we would like to aspire to existed in pre 1914 Vienna and pre 1914 Berlin, though
with strong class discrimination. The events of the past few years in Australia suggest that racist white teachers and
racist white social security clerks do not serve the interests of poor ordinary Aboriginals in Australia. If only some of
the stated concern for racial equality were practised by those the government employ to provide services. But often
the administrative discretion of local public servants with delegated authority over certain matters does not seem to be
being used to carry out stated government policy.

7.0 Consolidation Of The Statute Book

My opinion is that most pieces of legislation are either badly bungled - like Work Choices - or just waste paper.

The committee should recommend to the Senate that it establish a Legislative Statute Book Consolidation Committee,
to oversee the consolidation of the entire Statute Book into no more paper pages than the Statute Book had in 1971.

The gigantic waste recycling operation of longer and longer pieces of legislation, more and more ineffective because
of loopholes and drafting errors, must end. I would submit that the committee should decide to pursue real outcomes
by supporting the method of tersely drafted and cleverly drafted acts of parliament that apply grammatical principles of
organisation to addressing a social problem in determining a question by statutory provision.

Some public policy questions such as climate change are best addressed by a non-rights framework.

And, along the way, till said consolidation be completed, why not make sure that proposed acts full of inordinate
details are sent back for re-drafting.

8.0 Conclusion

I ask that the committee consider the above in its deliberations.