Urgent Law-Making and the Human Rights (Parliamentary Scrutiny) Act
in Julie Debeljak and Laura Grenfell (eds), Law Making and Human Rights (Thomson Reuters, 2020) 647
Posted: 10 Apr 2020
Date Written: 2020
The first tranche of Australian anti-terror legislation was passed in the mid-2000s. Deliberation by the Commonwealth Parliament was often abridged by the government’s claims that the amendments were ‘urgent’. It is therefore unsurprising that the legislature was unable to pay sufficient attention to the amendments’ human rights consequences.
Last year, Parliament enacted another tranche of anti-terror legislation. Urgency was again employed in an attempt to truncate parliamentary deliberation. Unlike the first tranche, the 2014 legislation was introduced into Parliament after the entry into force of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (‘HRPS Act’), which seeks to entrench legislative rights deliberation at the Commonwealth level. Since the HRPS Act’s enactment there has been little scholarship on its effect. Seeking to fill this gap, this chapter considers whether the 2014 legislation demonstrates that the HRPS Act has improved rights-based scrutiny, or whether not much has changed from a decade ago.
An examination of the passage of these two waves of anti-terror legislation yields the conclusion that the HRPS Act was ineffective in embedding proportionate legislative rights deliberation in respect of the 2014 legislation. Certain areas where reform may be necessary to improve the HRPS Act’s effectiveness will be addressed. Structural weaknesses of an exclusive parliamentary model that are particularly problematic in an urgent lawmaking context will be explored, while concluding that judicial review may be better tailored to address these pathologies.
Keywords: human rights, parliamentary scrutiny, urgent law-making, political constitutionalism, anti-terror law
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