A culture of justification

2.1          In Australia, existing and proposed laws are scrutinised for compatibility with fundamental rights and principles at a number of stages and by a number of different bodies and institutions. This chapter outlines some of these processes for testing compatibility, with a particular focus on scrutiny of draft legislation by parliamentary committees, and considers how the processes may be improved.

2.2          Scrutiny of laws for compatibility with fundamental rights may be seen as part of a ‘democratic culture of justification’—that is, a culture in which ‘every exercise of public power is expected to be justified by reference to reasons which are publicly available to be independently scrutinised for compatibility with society’s fundamental commitments’.[1]

2.3          Such scrutiny can provide a meaningful check on unjustified legislative intrusions on traditional rights and freedoms. There is also an important democratic rights value in good, transparent processes and debate about all laws, but particularly those laws that limit long-held and fundamental individual rights and freedoms.

2.4          Professor Janet Hiebert and others have written about processes of ‘legislative rights review’ and the ‘importance of confronting whether and how proposed legislation implicates rights adversely and engaging in reasoned judgment about whether the initiative should be amended or is nevertheless justified’.[2] This can happen throughout the legislative process:

From the early stages of bureaucratic policy development of identifying compatibility issues and advising on more compliant ways to achieve a legislative initiative, through to the Cabinet process of deciding whether to proceed with legislative bills, and ultimately in parliamentary deliberation about whether to approve legislation or put pressure on the government to make amendments.[3]

2.5          Scrutiny can also continue after a law is enacted. This chapter discusses the role and functions of some of the agencies and institutions that play a role in scrutinising existing laws for compatibility with fundamental rights.