Parliamentary Rights Scrutiny and Counter-Terrorism Lawmaking in Australia

A framework for Evaluating Legislative Scrutiny in Modern Democracies

  • Sarah Moulds University of South Australia

Abstract

This paper evaluates the impact of pre and post-enactment scrutiny of Australia’s counter-terrorism laws enacted from 2001 until 2018.  Parliamentary scrutiny of rights-engaging laws is particularly critical in the Australian content, as Australia relies on a parliamentary model of rights protection at the federal level. The evaluation framework employed in this Paper considers a range of evidence to provide a holistic account of the impact of legislative scrutiny on the content, development and implementation of Australia’s counter-terrorism laws.  This includes consideration of the legislative impact of scrutiny on the content of the law, the role scrutiny plays in the public and parliamentary debate on the law, as well as the hidden impact scrutiny, may be having on policy development and legislative drafting.  The results are surprising.  This study finds that parliamentary rights scrutiny, particularly by parliamentary committees, has had a rights-enhancing (although rarely rights-remedying) impact on the counter-terrorism laws.  Further, this research finds that the hidden or behind-the-scenes impact of parliamentary scrutiny provides a particularly fertile ground for improving the rights-protecting capacity of the Australian legislative scrutiny system. These findings and the evaluation framework employed in this Paper have application and benefits for other jurisdictions seeking to understand and improve the quality of their legislative scrutiny regimes.

References

Aileen Kavanagh, ‘The Joint Committee on Human Rights: A Hybrid Breed of Constitutional Watchdog’ in Murray Hunt, Hayley Jane Hooper and Paul Yowell (eds), Parliaments and Human Rights: Redressing the Democratic Deficit (Hart Publishing, 2015).

Appleby, Gabrielle, ‘Horizontal Accountability: The Rights Protective Promise and Fragility of the Executive Integrity Institutions’ (2017) 23 Australian Journal of Human Rights.

Bruce Stone, ‘Size and Executive-Legislative Relations in Australian Parliaments’ (1998) 33(1) Australian Journal of Political Science.

David Beetham, The Legitimation of Power (Palgrave, 2002).

David Feldman, ‘Democracy, Law and Human Rights: Politics as Challenge and Opportunity’ in Murray Hunt et al (eds), Parliaments and Human Rights: Redressing the Democratic Deficit (Hart Publishing 2015).

David Monk, ‘A Framework for Evaluating the Performance of Committees in Westminster Parliaments’ (2010) 16 The Journal of Legislative Studies.

Dobson, Melina J. (2019) ‘The last forum of accountability? State secrecy, intelligence and freedom of information in the United Kingdom’ 21:2 The British Journal of Politics and International Relations.

Francis Fukuyama, ‘Why Is Democracy Performing So Poorly?’ (2015) 26(1) Journal of Democracy.

Immanuel Kant, Practical Philosophy (Mary J Gregored, Cambridge University Press, 1999).

Janet Hiebert, ‘Legislative Rights Review: Addressing the Gap Between Ideals and Constraints’ in Murray Hunt, Hayley Jane Cooper and Paul Yowell, Parliament and Human Rights: Redressing the Democratic Deficit (Hart Publishing 2015).

Jessie Blackbourrn, ‘Accountability, Counter-Terrorism and Civil Liberties’ (2018) 29(2) Kings Law Journal.

John E Finn ‘Sunset Clauses and Democratic Deliberation: Assessing the Significance of Sunset Provisions in Antiterrorism Legislation’ (2010) 48 Columbia Journal of Transnational Law.

Laura Grenfell and Julie Debeljak (eds) Law Making and Human Rights: Executive and Parliamentary Scrutiny across Australian Jurisdictions (Thompson Reuteurs, forthcoming).

Laura Grenfell and Sarah Moulds, ‘The Role of Committees in Rights Protection in Federal and State Parliaments in Australia’ (2018) 41(1) University of New South Wales Law Journal.

Michael C Tolley, ‘Parliamentary Scrutiny of Rights in the United Kingdom: Assessing the Work of the Joint Committee on Human Rights’ (2009) 44(1) Australian Journal of Political Science.

Murray Hunt, Hayley Jane Hooper and Paul Yowell (eds), Parliaments and Human Rights: Redressing the Democratic Deficit (Hart Publishing, 2015).

Phillip Larkin,Andrew Hindmoor and Andrew Kenyon, ‘Assessing the Influence of Select Committees in the UK: The Education and Skills Committee 1997–2005’ (2009) 15(1) Journal of Legislative Studies.

Richard Mulgan ‘The Australian Senate as a 'House of Review', (1996) 31(2) Australian Journal of Political Science.

Ron Levy and Grahame Orr, The Law of Deliberative Democracy (Routledge, 2016).

Supplementary Explanatory Memorandum, Australian Security Intelligence Organisation Amendment
Tom Campbell and Stephen Morris, ‘Human rights for democracies: a provisional assessment of the Australian Human Rights (Parliamentary Scrutiny) Act 2011’ (2015) 34(1) University of Queensland Law Journal.
Published
2019-12-05
How to Cite
MOULDS, Sarah. Parliamentary Rights Scrutiny and Counter-Terrorism Lawmaking in Australia. Journal of Southeast Asian Human Rights, [S.l.], v. 3, n. 2, p. 185-230, dec. 2019. ISSN 2599-2147. Available at: <https://jurnal.unej.ac.id/index.php/JSEAHR/article/view/13461>. Date accessed: 24 jan. 2020. doi: https://doi.org/10.19184/jseahr.v3i2.13461.
Section
Special Edition on Post-Legislative Scrutiny in Asia

Most read articles by the same author(s)

Obs.: This plugin requires at least one statistics/report plugin to be enabled. If your statistics plugins provide more than one metric then please also select a main metric on the admin's site settings page and/or on the journal manager's settings pages.