South Australia: Ad Hoc and Unsystematic Rights Protection in Law Making

Grenfell, ‘South Australia: Ad Hoc and Unsystematic Rights Protection in Law Making’ in Debeljak and Grenfell (eds) Law Making and Human Rights: Executive and Parliamentary Scrutiny across Australian Jurisdictions (2020 Thomson Reuters) p 499-528

U. of Adelaide Law Research Paper No. 2020-125

35 Pages Posted: 27 Aug 2020

Date Written: August 24, 2020

Abstract

This chapter on South Australia shows that the state has no formal rights protection to guide policy and lawmakers in the executive and legislature. Unlike all other Australian jurisdictions, SA has not had any public inquiry into the need for more formalised rights protection. For Bills, the most consistent point of rights scrutiny is the SA Upper House, which has not been government controlled since 1975. This means that rights only enter the spotlight after a Bill is introduced. The quality of this Upper House scrutiny depends on the skills and time of Cross Benchers and the Opposition of the day, as well as parliamentary processes, such as Upper House Standing Orders, which allow for lengthy deliberation. The quality of rights scrutiny is also particularly reliant on stakeholders to regularly inform the Upper House of rights implications and, sometimes, to tirelessly campaign for these rights concerns to be addressed.
The chapter offers a case study of a cluster of SA Bills, introduced between 2013 and 2018, relating to children and youth. This case study is used to analyse what use the executive and legislature make of the UN Convention on the Rights of the Child. The chapter assesses the willingness of the SA government and Parliament to incorporate the CRC and its principles into relevant child protection laws, institutional framework laws and criminal laws affecting children and young people. The case study shows that in some instances of law-making, the CRC appears to be either sidelined or an afterthought, at times leading to retrofitting amendments in the Upper House after a concerted campaign by stakeholders.
The case study reveals that SA has no system in place whereby the executive systematically considers relevant human rights standards in policy development or legislative drafting. In the absence of a system of parliamentary rights scrutiny for all Bills by a parliamentary committee, this combination makes for haphazard consideration of human rights in the law-making process. Parliament’s position as the pre-eminent protector of human rights is undermined by this arguably chaotic approach.

Keywords: Human Rights, Children’s Rights, Human Rights Scrutiny ,Executive and Parliamentary Scrutiny, Law-making and Scrutiny, Law-making and Human Rights

JEL Classification: K10

Suggested Citation

Grenfell, Laura, South Australia: Ad Hoc and Unsystematic Rights Protection in Law Making (August 24, 2020). Grenfell, ‘South Australia: Ad Hoc and Unsystematic Rights Protection in Law Making’ in Debeljak and Grenfell (eds) Law Making and Human Rights: Executive and Parliamentary Scrutiny across Australian Jurisdictions (2020 Thomson Reuters) p 499-528, U. of Adelaide Law Research Paper No. 2020-125, Available at SSRN: https://ssrn.com/abstract=3679742

Laura Grenfell (Contact Author)

University of Adelaide

No 233 North Terrace, School of Commerce
Adelaide, South Australia 5005
Australia

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