Diverse Australian Landscapes of Law Making and Human Rights: Contextualising Law Making and Human Rights

Debeljak and Grenfell, ‘Diverse Australian Landscapes of Law Making and Human Rights: Contextualising Law Making and Human Rights’ in Debeljak and Grenfell (eds) Law Making and Human Rights: Executive and Parliamentary Scrutiny across Australian Jurisdictions (2020 Thomson Reuters) p 1-28

U. of Adelaide Law Research Paper No. 2020-128

31 Pages Posted: 27 Aug 2020

See all articles by Laura Grenfell

Laura Grenfell

University of Adelaide

Julie Debeljak

Monash University - Faculty of Law

Date Written: August 24, 2020

Abstract

This chapter introduces the diverse Australian landscape of rights scrutiny in the law-making process. It sets out the different sets of standards and various mechanisms relied upon by parliaments across Australian jurisdictions when undertaking rights-scrutiny of proposed laws, and identifies a variety of factors that impact on the effectiveness of such rights-scrutiny, and the degree of sensitivity of law-making to human rights guarantees or principles. It considers the purposes of rights-scrutiny as articulated and contextualised across the Australian jurisdictions.

The chapter focuses on the process of law-making and on Parliament as both legislative scrutineer and law-maker. It also focuses on the executive – the fact of executive dominance over parliament means it is necessary to focus squarely on the executive and its engagement with parliament in relation to human rights and law making.

The chapter concentrates on ‘upstream’ human rights scrutiny in the law-making process. This includes ‘pre-introduction scrutiny’ that takes place before a bill is introduced to parliament, and which occurs behind closed doors when policy is developed and legislation is drafted. It also includes ‘post-introduction scrutiny’ that takes place once a Bill is tabled in parliament, and which is transparent because it is conducted by a scrutiny body and/or on the floor of Parliament and it is recorded in Hansard. This upstream scrutiny contrasts with ‘downstream scrutiny’, which is sometimes referred to as ‘post-enactment scrutiny’.

When policy developers and law-makers undertake rights-scrutiny, this serves the twin purposes of increasing the transparency of, and accountability for, the right-consequences of their decisions. Moreover, these rights-scrutiny mechanisms can and should develop a culture of justification through their scrutiny processes, particularly by forcing the executive to offer a public justification for any impacts of policy and legislative proposals on rights. Developing a culture of justification that bolsters transparency and accountability is particularly pertinent in many Australian jurisdictions where governmental and political structures and practices pull in the opposite direction – that is, where strong party discipline, a bipartisan approach on a political issue, and/or executive dominance especially in a unicameral parliament mean that such rights implications are not the subject of expansive debate and deliberation on the floor of parliament. Ultimately, this chapter contextualises the 24 substantive chapters that follow in the edited collection, offering guidance on the major themes developed in those chapters and a precis of each chapter.

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

JEL Classification: K10

Suggested Citation

Grenfell, Laura and Debeljak, Julie, Diverse Australian Landscapes of Law Making and Human Rights: Contextualising Law Making and Human Rights (August 24, 2020). Debeljak and Grenfell, ‘Diverse Australian Landscapes of Law Making and Human Rights: Contextualising Law Making and Human Rights’ in Debeljak and Grenfell (eds) Law Making and Human Rights: Executive and Parliamentary Scrutiny across Australian Jurisdictions (2020 Thomson Reuters) p 1-28, U. of Adelaide Law Research Paper No. 2020-128, Available at SSRN: https://ssrn.com/abstract=3679751

Laura Grenfell (Contact Author)

University of Adelaide

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

Julie Debeljak

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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