Future Directions for Engaging with Human Rights in Law- Making

Abstract

This chapter reflects on the critical need to better understand how the executive and legislature engage with rights in their policy development and law-making roles, exploring the main themes that emerge from the earlier 24 substantive chapters in the collection. Across all Australian jurisdictions, the executive and parliament have the greatest responsibility for generating and buttressing a democratic culture of justification whereby decision-makers are transparent about, accountable for and justify the rights-impacts of their public decisions at the time that they are developing policy and enacting law – whether that is because a jurisdiction does not have a formal rights instruments that includes judicial protection and promotion of rights (leaving responsibility for rights solely in the domain of the executive and parliament), or because a jurisdiction has a statutory rights instruments which preserves parliamentary sovereignty (leaving responsibility for rights primarily with the executive and legislature).

This chapter reflects on how parliaments position themselves as human rights protectors despite being stymied by executive dominance. These dynamics have significant consequences for the transparency of and accountability for the rights implications of policy development and law-making, and influences the existence and robustness of any culture of justification. The chapter then undertakes a cross-jurisdictional analysis of one element of parliamentary rights scrutiny – the criteria chosen by each parliament against which to scrutinize – confirming that ‘one size does not fit all’, and suggesting that each parliament must curate their own rights guarantees while learning from each other’s experiences.

The chapter outlines how upstream and downstream processes of law-making engage with rights, setting out key insights into the practice across Australian jurisdictions in terms of pre-introduction scrutiny, post-introduction scrutiny and post-enactment scrutiny. This analysis is also informed by the practice in New Zealand and the United Kingdom. Whilst it might be expected that jurisdictions with statutorily-mandated executive and parliamentary human rights scrutiny (‘statute-driven jurisdictions’) fare better than jurisdictions without such obligations, there is a vast difference in practice across the statute-driven jurisdictions. There are lessons to be learned among Australia’s statute-driven jurisdictions, and across the statute- and non-statute-driven jurisdictions in both directions.

This chapter identifies how the executive and legislative arms of government in Australia can do better in engaging with human rights in their policy development and law-making roles. ‘Better’ involves being more transparent about how policy and laws are conceived, drafted, justified and enacted; being more accountable for the human rights consequences of policies developed and legislation proposed; and creating and fostering a culture of justification for decisions that impact on human rights.

Keywords: Human Rights, Human Rights Instruments, Charters of Rights, Bills of Rights, Human Rights Scrutiny, Executive and Parliamentary Scrutiny, Law-making and Scrutiny, Law-making and Human Rights

JEL Classification: K30