3.1 Existing and proposed laws are scrutinised for compatibility with rights and principles, including the traditional rights and freedoms identified in the Terms of Reference for this Inquiry, at a number of stages and by a number of different agencies, 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.
3.2 Scrutiny of laws for compatibility with 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’.
3.3 Such scrutiny can provide a check on legislative interferences with rights. 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.
3.4 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’. 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.
3.5 Scrutiny can also continue after a law is enacted. This chapter discusses the role and functions of some of the agencies and institutions that scrutinise existing laws for compatibility with rights.
3.6 Policy makers are provided with assistance at the policy development and legislative drafting stages. Additionally, there is a long history of subjecting bills to scrutiny by parliamentary committees. Scrutiny may also continue after enactment where bodies such as the Australian Law Reform Commission (ALRC) and the Australian Human Rights Commission (AHRC) review legislation. Others such as the Independent National Security Legislation Monitor (INSLM) are tasked with undertaking reviews for specific areas warranting particular attention.
3.7 This chapter discusses a number of areas for further improvements in the processes that provide checks on legislative encroachments on rights. These include:
additional guidance and assistance for policy makers during the policy development and legislative drafting stages;
the quality of explanatory material and statements of compatibility, including the range of rights covered by each Committee, and the differences in the scrutiny applied;
the level of overlap between the work of the three parliamentary scrutiny committees;
the time available for scrutiny committees to conduct their scrutiny; and
the extent to which the Parliament considers scrutiny committee reports.
3.8 This chapter discusses a variety of approaches to implement such further improvement. In doing so, it draws upon analogous approaches in other jurisdictions, parliamentary inquiries and expert commentators.
Murray Hunt, ‘Introduction’ in Murray Hunt, Hayley Hooper and Paul Yowell (eds), Parliaments and Human Rights: Redressing the Democratic Deficit (Hart Publishing, 2015) 1, 15–16.
Janet Hiebert, ‘Legislative Rights Review: Addressing the Gap Between Ideals and Constraints’ in Murray Hunt, Hayley Hooper and Paul Yowell (eds), Parliaments and Human Rights: Redressing the Democratic Deficit (Hart Publishing, 2015) 39, 40. See also, Hunt, above n 1; David Kinley, Finding and Filling the Democratic Deficit in Human Rights in Murray Hunt, Hayley Hooper and Paul Yowell (eds) Parliaments and Human Rights: Redressing the Democratic Deficit (Hart Publishing, 2015) 29; John Uhr, ‘The Performance of Australian Legislatures in Protecting Rights’ in Adrienne Stone, Jeffrey Goldsworthy and Tom D Campbell (eds), Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia (Ashgate Publishing, Ltd., 2013).
Hiebert, above n 2, 40.
The Senate Standing Committee for the Scrutiny of Bills, Parliamentary Joint Committee on Human Rights and Senate Standing Committee on Regulations and Ordinances are required to scrutinise Commonwealth laws for encroachments on rights.