The rights-protecting role and impact of Commonwealth Parliamentary Committees: the case of Australia’s counter-terrorism laws

Abstract

Uniquely in the Western world, Australia relies on an ‘exclusively parliamentary’ model of rights protection at the federal level, which relies heavily on Parliament rather than the courts to protect and promote rights. Central to this model of rights protection is the system of parliamentary committees that inquire into and scrutinise proposed laws. This thesis tests the limits of the parliamentary model of rights protection, using a case study that includes 12 counter-terrorism-related Acts. In particular, this thesis explores whether parliamentary committees have had a rights-enhancing impact on these laws and whether the rights-enhancing impact of parliamentary committees can be improved. The methodology employed in this research considers a range of evidence to provide a holistic account of the impact of the parliamentary committee system on the case study Acts. This includes consideration of the legislative impact of parliamentary committees on the content of the Acts, evidenced by legislative amendments attributed to the work of committees in parliamentary debates or Explanatory Memoranda. This research also considers the role parliamentary committees play in the public and parliamentary debate on the case study Acts, for example by considering references to individual committees in Hansard debates and media articles. In addition, this research investigates the hidden impact parliamentary committees may be having on policy development and legislative drafting, considering both documentary materials such as guidelines and manuals, as well as material obtained from interviews with key participants in the law-making process. This material is then considered against the backdrop of a broader analysis of the multiple stages of rights review that occur within the Australian Parliament, in the context of counter-terrorism law making at the federal level. This thesis finds that parliamentary committees have had a rights-enhancing (although rarely rights-remedying) impact on the case study Acts, and that the nature of this impact varies across the different committees studied. Further, this thesis finds that the hidden or behind-the-scenes impact of parliamentary committees on the development of proposed laws provides a particularly fertile ground for improving the rights-protecting capacity of the committee system. Most significantly, this thesis finds that the rights-enhancing impact of parliamentary committees is most strongly felt when individual parliamentary committees work together as a system. This has important implications for the types of reforms that should be pursued to improve the rights-protecting capacity of the Australian Parliament This thesis concludes by offering a range of practical recommendations designed to improve the rights-enhancing capacity of the parliamentary committee system, while also solidifying the system’s respected and valued place with the Australian Parliament. These system-wide recommendations are complemented by proposed committee-specific changes that aim to build upon the strengths of individual committees and maximise the potential for multiple committees to work collaboratively. When taken together, this research shows that the parliamentary committee system is worth investing in as a way to improve the current parliamentary model of rights protection, and when exploring alternative models of rights protection at the federal level.