Committees of influence: evaluating the role and impact of parliamentary committees

Dr Sarah Moulds^*

Committees of influence: evaluating the role and impact of parliamentary committees (PDF 490KB)

Around the world, parliamentary democracies are facing a daunting mix of challenges, including an implosion of trust among citizens in democratic institutions, disruption of traditional political processes and the need to respond to increasingly complex policy questions. As Flew argues, the rise of populism around the world points to 'more general crisis of trust in social institutions and in the project of globalisation that has prevailed in Western liberal democracies'¹ Despite great advances in communication technologies, the distance between elected representatives and the electorate seems to be greater than ever before.² Party politics, as traditionally understood, also appears to be fragmenting as electorates across the world increasingly look to 'outsiders' or independents as alternatives to organised political parties when casting their vote.³ In response to these challenges parliaments have begun to experiment with new ways of engaging with the communities they represent, and new ways of obtaining expert advice on complex policy issues, with varied levels of success. In the Australian context, this has given rise to the use of direct democracy techniques such as citizens' juries, online questionnaires, social media and postal surveys to gauge the views of the community, and reliance upon expert advisors or committees to help inform policy or legislative agendas.⁴

Adding to this turbulent social and political context, in response to the complex and potentially devastating threat posed by COVID-19, parliaments around the world have transferred unprecedented powers to executive governments and their agencies, often with the full support of the communities they represent.⁵ This includes imposing travel bans preventing citizens from leaving the country, empowering health officials to direct and detain people, providing police with unprecedented discretion to implement and enforce fines and authorising ministers to make significant changes to existing laws and services without requiring parliamentary approval.⁶ By any measure, this constitutes an extraordinary transfer of power away from the parliament towards the executive with clear impacts on individual rights and representative democracy. These laws were passed within days, sometimes hours, with limited safeguards and a heavy reliance on sunsetting provisions, some of which are dependent on the pandemic being officially called to an end.⁷ From within this rush of emergency law-making and institutional power transfer, parliamentary committees emerged as a focal point for democratic scrutiny of governments' legal responses to COVID-19, particularly in Westminster-inspired parliaments including those in Australia, New Zealand and the United Kingdom.⁸

This combination of factors makes looking carefully at the current role parliamentary committees play within the Australian Parliament – and their potential to influence the content of laws and policies, the way laws are made and the way the parliament engages with the public – particularly important.

In this paper I aim to highlight the importance of evaluating the impact of parliamentary committees on law-making in Australia and offer a pathway forward in the form of a tiered evaluation framework that is designed to guard against some of the short comings identified by other scholars in this field. I will briefly look at 3 case studies – the COVID-19 response, counter-terrorism law-making and marriage equality reform (each covered in detail elsewhere in my research)⁹ – to explore the existing role parliamentary committees play in improving the quality of federal law-making and community engagement with parliament.

Why should we care about parliamentary committees?

Parliamentary committees both reflect and feed into the key values underpinning our parliamentary culture, including values associated with rule of law, accountability and relationships between the governors and the governed. Parliamentary committees also give practical effect to key aspects of our parliamentary democracy. They provide a forum for all parliamentarians to play a role in the legislative process and generate reports containing information about the purpose, effectiveness and impact of proposed and existing laws and policies.¹⁰ They also provide a forum for experts and members of the community to share their views on a proposed policy or law and raise matters critical to the lives and rights of Australians.

Parliamentary committees can undertake a number of specific functions,¹¹ ranging from scrutinising government expenditure (such as the Senate Estimates process undertaken within the Australian Parliament), reviewing procedural rules and practices or conducting thematic inquiries into significant public policy issues referred to them by parliament. This paper focuses on the legislative scrutiny role of parliamentary committees—that is, the task of reviewing an existing or proposed law (sometimes against prescribed criteria) and reporting back to parliament with findings or recommendations. In this legislative scrutiny role, parliamentary committees analyse proposed laws and policies and produce vital, independent information about their purpose and effectiveness and provide a forum for experts and members of the community to share their views on a proposed law. In this way, parliamentary committees have both deliberative attributes (such as facilitating forums for the public to engage in the law-making process) and authoritative attributes (such as the power to recommend reforms to proposed laws or policies).¹²

Whether specifically assigned a rights-protecting role (such as the Parliamentary Joint Committee on Human Rights (PJCHR)),¹³ or performing a broader inquiry function (such as the Senate Legal and Constitutional Affairs References Committee),¹⁴ parliamentary committees are also a key aspect of Australia's parliamentary model of rights protection.¹⁵ Within this model, parliamentary committees 'sound the alarm' about laws that might impact on individual rights and provide the forum for interested members of the community to express their views on how parliament should respond. Many committees also provide a source of concrete recommendations for legislative or policy change that can have the effect of improving the rights-compliance of proposed federal laws.¹⁶

When engaging in an analysis of this type, it is important not to overstate the role parliamentary committees play in the law-making process in Australia. Often the recommendations of inquiry-based committees are rejected or ignored by the government of the day,¹⁷ and sometimes the scrutiny committee reports are issued too late to be of any direct influence on parliamentary debate on the bill.¹⁸ However, as the counter-terrorism and marriage equality examples show, when considered over time, the role these committees play in collecting, presenting, and analysing different views on the merits of proposed changes to the law can be significant. This makes studying the impact of parliamentary committees particularly relevant to contemporary debates surrounding the quality of parliamentary law-making and public engagement with and trust in political and legal institutions.

Why is the work of parliamentary committees hard to evaluate?

The complex and dynamic nature of parliamentary committees and other legislative scrutiny bodies means evaluating their performance is not always straightforward.¹⁹ Many scholars have grappled with these challenges when seeking to evaluate the performance of parliamentary committees in a range of different areas.²⁰ The evaluation framework applied in this research aims to address these challenges.

The 4 key steps of the evaluation framework employed are summarised below:

• Step 1: setting out the institutional context in which the scrutiny takes place
• Step 2: identifying the role, functions and objectives of the scrutiny body
• Step 3: identifying key participants²¹ and determining legitimacy²²
• Step 4: measuring the impact of the scrutiny system.

Step 4 is the most intensive and detailed step in the evaluation framework. It aims to determine what impact a particular component of the scrutiny system is having on the development and content of the law. It includes consideration of the following 3 'tiers' of impact:²³

• legislative impact (whether the scrutiny undertaken has directly changed the content of a law);
• public impact (whether the work of the scrutiny has influenced or been considered in public or parliamentary debate on a bill, or in subsequent commentary or review of an Act); and
• hidden impact (whether those at the coalface of developing and drafting counter-terrorism laws turn their mind to the work of legislative scrutiny bodies when undertaking their tasks).²⁴

The tiered evaluation process in practice

It is possible to see the tiered evaluation framework in practice by investigating the impact of the parliamentary committee system on a selection of counter-terrorism laws introduced between 2001 to 2018²⁵ and amendments to the Marriage Act 1961 (Cth) between 2004 to 2017²⁶ and, by looking at the early indications of the work of parliamentary committees in scrutinising Australia's federal response to the COVID-19 pandemic.²⁷ As discussed further in part 3, these 2 case studies provide an opportunity to reflect upon the different roles individual committees play within the broader committee system and how some of these committees²⁸ seek to engage with the Australian community.

1. Participation and legitimacy

My research has found that rates and diversity of participants in formal parliamentary scrutiny can be an important indicator of effectiveness and impact.²⁹ This is because a diverse range of participants in inquiries into proposed or existing laws provides 'an opportunity for proponents of divergent views to find common ground'³⁰ or, as Dalla-Pozza has explained, for parliamentarians to make good on their promise to 'strike the right balance' between safeguarding security and preserving individual liberty when enacting counter-terrorism laws.³¹ Good examples of scrutiny bodies with these strengths are the Senate Legal and Constitutional Affairs Legislation Committee (the LCA Legislation committee), the Senate Legal and Constitutional Affairs References Committee (the LCA References committee) and the House Standing Committee on Social Policy and Legal Affairs (the House committee).³² These inquiry-based committees have a high overall participation rate, engaging a broad range of parliamentarians, public servants and submission-makers.³³ For example, in 2 counter-terrorism bill inquiries, the LCA committees attracted over 400 submissions and heard from well over 20 witnesses.³⁴ This relatively high participation rate was dwarfed by the rates of participation experienced by the House committee³⁵ in its inquiry into 2 cross-party marriage equality bills in 2012,³⁶ which received 276,437 responses to its online survey, including 213,524 general comments and 86,991 comments on the legal and technical aspects of the bills.³⁷ Never before had the parliament provided a deliberative forum of this scale or attracted so many responses from interested members of the community.³⁸ Unlike some other parliamentary committees, both the LCA committees and the House committee were able to attract participation from a broader cross section of the community, rather than rely on 'the usual suspects' (such groups or individuals who are already aware of the bill's existence, or who are contacted by politicians or their staff, or by the committee secretariat).³⁹

This suggests that high rates of participation are indicators of effectiveness when it comes to parliamentary committees. However, committees that focus on preserving and strengthening relationships with a smaller, less diverse group of decision-makers can also have a strong influence and impact on the content of federal laws, particularly when those relationships are with government agencies or expert advisers. This is illustrated by the influential nature of the recommendations made by the specialist Parliamentary Joint Committee on Intelligence and Security (the Intelligence committee),⁴⁰ which works closely with staff from law enforcement and intelligence agencies when inquiring into proposed or existing national security laws.⁴¹

This reveals an important tension in the role and impact of different types of parliamentary committees. On the one hand, the ability to attract and reflect upon a diverse range of perspectives when inquiring into a particular law has positive deliberative implications for the capacity of the committee system to improve the overall quality of the law-making process, and to identify rights, concerns or other problems with the content and implementation of the law. On the other hand, other attributes, such as specialist skills and trusted relationships with the executive, can also lead to a consistently strong legislative impact, which can also have important, positive results.

2. Legislative impact

One of the most surprising findings arising from these 2 case studies is the significant legislative impact different components of the committee system were able to have on the content of federal laws. In the context of the counter-terrorism case study, many of the recommendations for legislative change made by parliamentary committees were implemented in full by the parliament in the form of amendments to the bill or Act.⁴² In addition, the types of changes recommended by these committees were generally rights-enhancing. In other words, at least in the counter-terrorism context, legislative scrutiny resulted in improvements in terms of the compliance with human rights standards. This is not to say that legislative scrutiny removed or remedied the full range of rights concerns associated with counter-terrorism laws (many rights concerns remained despite this scrutiny) — but the legislative changes made as a result of scrutiny were significant and positive from a rights perspective. For example, this research suggests that the work of parliamentary committees directly contributed to amendments that:

• narrowed the scope of a number of key definitions used in the counter-terrorism legislative framework, including the definition of 'terrorist act'⁴³
• removed absolute liability and reverse onus of proof provisions from the terrorist act related offence⁴⁴
• inserted defences within the terrorist act offences for the provision of humanitarian aid⁴⁵
• ensured the power to proscribe terrorist organisations is subject to parliamentary review⁴⁶
• subjected each new law enforcement and intelligence agency power to a raft of detailed reporting requirements and oversight by independent statutory officers⁴⁷
• ensured persons detained under a questioning and detention warrant have access to legal representation, are protected against self-incrimination and have access to judicial review of detention at regular intervals⁴⁸
• ensured that pre-charge detention of people thought to have information relevant to terrorist investigations is subject to judicial oversight and maximum time limits⁴⁹
• re-instated the court's discretion to ensure that a person receives a fair trial when certain national security information is handled in 'closed court', and limited the potential to exclude relevant information from the defendant in counter-terrorism trials⁵⁰
• ensured people subject to control orders and preventative detention orders can understand and challenge the material relied upon to make the order and limited the regime to adults only⁵¹
• narrowed the circumstances in which a dual national can have their citizenship 'renounced' by doing something terrorist-related overseas, including by narrowing the range of conduct that can trigger the provisions; and making it clear that the laws cannot be applied to children under 14.⁵²

These findings are surprising because they challenge the orthodox view that governments generally resist making changes to legislation that they have already publicly committed to and introduced into parliament.⁵³ Interestingly, the strength of this legislative impact varied from committee to committee. For example, the Intelligence committee was a particularly strong performer when it came to translating recommendations into legislative change (achieving a 100% strike rate during the period from 2013-2018) and improving the rights compliance of the law.⁵⁴ The committees with broader mandates and more open membership, such as the LCA committees, had a less consistent legislative impact but were particularly active in the early period of counter-terrorism law-making, generating popular and influential public inquiries that had important, rights-enhancing legislative outcomes.⁵⁵ These observations are also apposite in the context of the marriage equality reforms, where there is also evidence that different parliamentary committees working together over time had a strong legislative impact. When taken together, these findings suggest that when multiple components of the scrutiny system work together to scrutinise and review an existing or proposed law, a more significant legislative impact is felt.⁵⁶

3. Public impact

For the purpose of the evaluation framework used in this research, 'public impact' refers to the impact of parliamentary committee work on the way laws are debated in the parliament and the community. Looking for this type of impact is particularly important for understanding how parliamentary committees contribute to the deliberative relationship between law-makers and the broader Australian community. This is because parliamentary committees can help establish a 'culture of scrutiny' by providing a forum for parliamentarians to share their views on a proposed or existing law, including pointing out what they consider to be the negative or unintended consequences of the proposed law. This can help identify any unintended or unjustified implications arising from a proposed law, and generate new, less rights-intrusive, legislative or policy options. Parliamentary committees can also help parliamentarians to weigh competing arguments or different policy options,⁵⁷ either through the public process conducted by the inquiry-based committees, or through the consideration of written analysis provided by the technical scrutiny committees.

The strong public impact of the parliamentary committee system is particularly evident in the marriage equality case study, which demonstrates the potential capacity for parliamentary committees to provide a meaningful deliberative forum for community debate on contested rights issues that is subsequently reflected in (or reflects) the broader parliamentary and community debate on these matters.⁵⁸

By attracting and engaging with these types of submission-makers, parliamentary committees can provide both a platform for these organisations to express their views and a source of information from which to launch future advocacy campaigns. This in turn can have an influence on how the relevant policy issues are debated in the media and provide incentives for parliamentarians to improve the deliberative quality of the law-making process. For example, the next year, Senator Hanson-Young introduced a similar bill (the 2010 bill), which was again referred to the LCA Legislation committee for inquiry and report.⁵⁹ The Committee received approximately 79,200 submissions: approximately 46,400 submissions in support of the 2010 bill, and approximately 32,800 submissions opposed.⁶⁰ The sheer volume of submissions received (regardless of the existence of 'form letter' style submissions) made this inquiry a powerful indicator of a shift in public support in favour of marriage equality.⁶¹

In addition to providing a forum for citizens to share their views directly with parliamentarians, the numerous public hearings held in Sydney and Melbourne⁶² provided an important opportunity for the media to hear directly from individuals with experiences of discrimination on the grounds of sexual orientation,⁶³ as well as those with strong views on the need to preserve marriage as a heterosexual institution.⁶⁴ These personal stories would also play an important role in advancing the case for legislative change in the lead up to the 2017 reforms.⁶⁵

The inquiry process also allowed for legal experts and rights advocates – both proponents and opponents of marriage equality – to articulate their arguments with reference to evidence and the experiences of other jurisdictions.⁶⁶ This proved to be particularly significant for the development of concrete legislative proposals designed to address both the growing public demand for marriage equality, with concerns associated with the impact of reform on religious rights and freedoms.⁶⁷ These issues became the defining features of the future marriage equality debate and influenced the shape and content of the legislative amendments passed in 2017.

The Senate Select Committee on COVID-19's (COVID-19 committee) approach to public engagement has also displayed some of the same characteristics, as well as demonstrating the potential for parliamentary committees to embrace innovative ways of connecting with the Australian community. From its inception in March 2020, the COVID-19 committee has used its inquiry-related functions to rigorously examine government officials and other experts and been active in sharing its work with the community, including through social media platforms, which has helped to generate sustained media and public interest in its work.⁶⁸

As of April 2021, the opposition-chaired, non-government-controlled committee has received 544 written submissions, held 42 public hearings (conducted in person and via video link and other related technologies), and handled hundreds of questions taken on notice by government agencies. Even before the committee issued a written report,⁶⁹ it influenced the shape of key legislation (for example the legislation providing the legal framework for the COVIDSafeApp and the JobKeeper and JobSeeker support programs)⁷⁰ and played a central role in the public debate on the efficacy of key government responses to the pandemic.⁷¹

Although not tasked with applying a prescribed human rights analysis to this issue, the COVID-19 committee provided a forum for legal and technical experts and the community more broadly to consider whether the COVIDSafeApp is necessary having regard to the nature of the threat posed by COVID-19 and the impact of the App on personal privacy, and whether the App constitutes a proportionate way to respond to the COVID-19 virus. These questions demanded consideration of the scientific evidence relating to the prevalence of the COVID-19 virus within the Australian community, effectiveness and efficiencies of pre-existing contract tracing mechanisms and the effectiveness and efficiency of the App itself. Consideration was also given to the impact of the App on the rights of vulnerable members of the community, such as women experiencing domestic violence, for whom a breach of privacy could have devastating consequences for themselves and their families.⁷²

The work of the COVID-19 committee, the PJCHR and the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills committee), provided political foundation for the introduction of legislative provisions addressing the use, sharing and storage of information obtained via the App in the form of the Privacy Amendment (Public Health Contact Information) Act 2020, and is an example of the benefits of Australia's 'ad hoc', multi-committee approach to human rights scrutiny. However, this ad hoc approach to rights scrutiny of executive action can also give rise to significant shortcomings when it comes to providing robust rights protection, as can be seen by the Australian Government's heavy use⁷³ of delegated powers conferred on it by pre-existing public health emergency legislation that have been largely exempted from parliamentary committee scrutiny.⁷⁴ These provisions also attracted the attention of the Scrutiny of Bills committee when it considered the Australian Government's Coronavirus Economic Response Package Omnibus Bill 2020, calling on the proponents to provide advice regarding the use of 'Henry VIII clauses'.⁷⁵ As is often the case when it comes to scrutiny of emergency law-making, this Scrutiny Digest report came weeks after the Coronavirus Economic Response Package Omnibus Bill 2020 (Cth) had been enacted into law, too late to give rise to any direct legislative amendments. This example highlights the clear limits of the Australian ad hoc approach to scrutinising the rights impacts of proposed laws, that relies heavily on a system of committees being empowered to work together to scrutinise key aspects of executive law-making.

4. Hidden impact

In addition to looking for 'legislative' and 'public' impact, the evaluation framework is designed to gather information from those working 'behind the scenes' in the law-making process.⁷⁶ This type of impact is described as 'hidden' as it often occurs prior to a bill or amendment being introduced into parliament and concerns the activities of public servants and parliamentary counsel, outside of the public gaze.⁷⁷

Investigations into the hidden impact of legislative scrutiny on Australia's counter-terrorism laws suggest that committees with high participation rates are in the minds of those responsible for developing and implementing legislation, and prudent proponents of bills will adopt strategies to anticipate or avoid public criticism by such bodies. In this way, the inquiry-based parliamentary committees (like the LCA committee) can have a strong 'hidden impact' on the development of laws. The 'technical scrutiny' committees,⁷⁸ (such as the Scrutiny of Bills committee) may also generate a strong hidden impact, not because of their capacity to generate public interest, but rather because the 'technical scrutiny' criteria these bodies apply is entrenched in the practices of public servants and parliamentary counsel. For example, written handbooks and other materials designed to assist parliamentary counsel and public servants to develop and draft proposed laws and amendments contain frequent references to the work of the 'technical' scrutiny bodies (such as the Scrutiny of Bills committee) and some of these documents, in particular the Legislation Handbook, Drafting Directions, and A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers translate the abstract principles underpinning the scrutiny bodies' mandates into practical checklists to be applied during particular stages of the legislation development process. In this way, these documents may help create a 'culture of rights compliance' within the public service. Over time, they also give rise to the shared view that the scrutiny criteria applied by these bodies reflect 'best practice' when it comes to developing laws.

Understanding these different forms of 'hidden impact' helps uncover new opportunities to improve the effectiveness and impact of the scrutiny system, in addition to exposing some of the system's key challenges and weaknesses.

The interview material also reveals that the rights-enhancing hidden impact of parliamentary committees remains vulnerable to a number of dynamic factors, including the degree to which the policy officers are able to present alternative policy and legislative options to the minister for consideration and the expertise and experience of the policy officers and parliamentary counsel involved in the development and drafting of the bill. When taken together, these findings suggest that understanding the hidden impact of the parliamentary committee system should be of central interest to anyone interested in understanding the overall impact of the parliamentary committee system on the quality of federal law-making in Australia.

Key findings and recommendations

While reiterating the salient warnings discussed above about the challenges associated with evaluating the work of parliamentary committees and attributing specific impacts to dynamic and politically influenced institutions, this research provides the opportunity to reflect the reforms (or investments in existing practices) that could maximize the potential for parliamentary committees to positively influence law-making and parliamentary public engagement in Australia. As documented in greater detail in Committees of Influence,⁷⁹ there are a range of common factors that may be determinative when it comes to the capacity of a parliamentary committee to have an impact on law-making. These common factors include:

• The deliberative capacity of the committee⁸⁰—such as the extent to which the committee is able to facilitate accessible remote or online forums and inquires to engage meaningfully with experts, community organisations and individuals, as well as its potential to provide a 'safe space' for members to change their mind in the face of compelling evidence.
• The political characteristics of the committee⁸¹—such as whether the committee has a government or non-government majority, the political seniority of its members and expertise of its secretariat staff, whether it comprises of members from both Houses, or whether its mandate is considered to be highly politicised or not.
• The relationship between the committee and relevant executive agencies⁸²—including the committee's access to relevant government information or capacity to hold 'private briefings' and track record of developing practical recommendations that can be readily implemented by government.
• Whether the committee is tasked with a 'policy scrutiny' or 'technical scrutiny' function⁸³—such as whether the committee is tasked with undertaking compliance related activity by assessing proposals against a prescribed list of criteria, or whether the committee is given broad scope to examine the policy merits of the law or to evaluate its effective implementation and hold public inquiries and examine witnesses.
• Whether the committee exists within a sophisticated system of committees or operates on an ad-hoc basis.⁸⁴
• Timing of the issue of committee reports and recommendations⁸⁵—including whether the committee's reports, recommendations or findings are able to be tabled or published prior to the enactment of the proposed law or before the cessation of any relevant disallowance period or sunsetting provision.

Building on these overall findings, the research that has informed this paper contains a list of practical reform suggestions for individual committees within the federal committee system, and for the system as whole.⁸⁶ While it is beyond the scope of this paper to repeat each of those recommendations here, it is useful to summarise in general terms the changes that could be made to similar committee systems in Australia. These suggestions share many aspects in common with previous reform recommendations made by those working directly within the Australian parliamentary committee system.⁸⁷

Improve communication between committees and key participants by:	Documenting and reporting on the government response to and legislative implementation of the committees' recommendations, for example through annual reports and more instantaneous platforms including social media and direct email through a subscription alert service.
	Improving communication between committees and those responsible for developing and drafting legislative proposals. This could involve committee secretariat staff liaising with public servants to develop subject-specific guidance notes and drafting directions.
	Developing and delivering specific training to assist in the facilitation of respectful, deliberative public hearings, that could include strategies to promote a culture of respect and support for a diverse range of witnesses and processes to update and expand 'invited submission-maker' lists.
	Requiring government responses to all Legislation committee reports before the conclusion of second reading debate on the bill, and to all Reference committee reports within 6 months of tabling (for example, by amending the relevant standing orders).
Increase committee resources and address high workloads to ensure timely tabling of reports by:	Providing additional funding for the general staffing pool that services parliamentary committees. The amount of additional funding should be determined following a work analysis to determine the nature and level of secretariat support necessary for future demands on the committee system.
	Encouraging the use of responsive staffing practices, such as shared secretariats and flexible staffing pools, which enable parliamentary staff to move between committees in response to changing workloads.
	Encouraging the appointment of high-quality, politically independent, part-time specialist advisors to support parliamentary committees over a fixed period, or for particularly complex or lengthy inquiries.
	Encouraging the use of departmental or agency secondee arrangements to support parliamentary committees over a fixed period, or for particularly complex or lengthy inquiries.
	Supporting parliamentarians in their involvement in parliamentary committees, including through improving training programs for parliamentarians' staff, and profiling high-quality contributions from individual committee members.
	Promoting parliamentary committees as part of the policy and legislative development process amongst the broader public service, including by pointing out the efficiency gains to be made by anticipating and addressing parliamentary scrutiny issues at the pre-introduction stage.
Document committees' contribution to establishing a common rights-scrutiny culture within the parliament by:	Investing in research to track the rights language used in parliamentary debates and parliamentary committee reports across a wide range of subject areas to evaluate the level of acceptance of the rights and scrutiny principles listed.
	Encouraging individual committees to more clearly and specifically document the impact they have on the development and debate of proposed new laws, particularly those committees with specific rights-scrutiny mandates.
	Facilitating workshops and forums to discuss, document and debate the contribution of parliamentary committees to law-making in Australia.

Opportunities for parliamentary committees to improve the relationship between parliament and the people

My research also suggests that parliamentary committees might be particularly well-placed to improve the relationship between parliament and the people by providing a meaningful deliberative forum for new sources of information to be evaluated and explored. In particular, my research suggests that parliamentary committees can enhance the deliberative quality of the legislative scrutiny process by:

Enhance the deliberative quality of the inquiry process by:	Formalising and actively building upon existing databases of potential submission-makers and processes for selecting witnesses for public inquiries to guard against unconscious bias or preference for 'usual suspects'.
	Investing in online materials and secretariat staff capacity to support submission-makers and witnesses, particularly new witnesses, for example by providing regular workshops for regular and new submission-makers and witnesses and a modest hardship fund to support non-government witnesses travelling from regional or remote locations to attend public hearings in person.
	Embracing the use of online surveys, social media distribution of information and targeted polling on issues relevant to parliamentary committee work as a beneficial supplement to conventional written submission and public hearing processes. These techniques should be supported by qualitative research into their impact on decision-making by parliamentary committee members.
	Investing in reliable video communication technologies in capital cities and regional centres to facilitate remote access public hearings. This could be supported by the interim use of video conferencing facilities provided by 'host' organisations, such as local councils or public libraries.

These changes would enhance the parliamentary committee systems' capacity to engage in deliberative law-making with flow on benefits of the overall health of our democracy.

What is deliberative law-making?

The idea of 'deliberative decision-making' requires that decision-makers have access to accurate and relevant information, consider a diversity of voices and different positions, reflect on the information received, and reach conclusions on the basis of evidence.⁸⁸ When applied to law-making, it requires law-makers to go beyond the idea of 'trading off' values or interests of one group against another, and instead engage in an active search for a common ground between different values or interests.⁸⁹ This in turn sees decision-makers engaging in reflection and sometimes, changing their mind.⁹⁰

The parliamentary experience of the marriage equality reforms suggests that the parliamentary committee system has the capacity to facilitate the occurrence of this type of law-making. There are 3 indications of this. First, the process supported deliberative decision-making by providing a central, independent collection point for a range of views, expert opinions and comparative data about the social and legal implications of reform in this area. It also provided a forum for parties to exchange views, present arguments and evidence in order to convince decision-makers of the merits of their claims.⁹¹ Secondly, the early committee inquiry processes paved the way for the development of future legislative and policy solutions to the marriage equality issue by documenting and summarising tens of thousands of submissions in an accessible format for the parliament to reflect upon when considering reform in this area.⁹² These committee inquiry processes also provided a practical forum for parliamentarians to evaluate the merits of the different positions presented with reference to supporting evidence, and reflect upon previously held views in light of new information.⁹³ Thirdly, the deliberative features of committee decision-making allowed the parliamentary committee system to explore rights and policy issues beyond binary positions. The case studies suggest that when parliamentary committees listen to competing views and reflect on the rights and interests of a broad cross-section of the community, they can identify common ground and provide a safe space for key decision-makers to change their minds about a policy or law.

This can be contrasted with the experience of the postal survey which framed the policy debate on marriage equality in binary terms and asked the Australian community to 'pick a side' rather than 'tell their story' when it comes to marriage equality. By narrowing the policy choices down to essential 'yes' or 'no' questions, these mechanisms provide far more limited opportunities for decision-makers to state reasons or demonstrate reflection, and if relied upon exclusively to resolve complex issues of social policy, can hamper efforts to develop nuanced responses or to provide meaningful protection for minority rights.⁹⁴ Under this approach, advocacy groups and media outlets have incentives to frame the policy issue in clear binary terms, attracting support for their preferred option by sensationalising the risks of the alternative or overstating the benefits of their position.

While the adoption of a binary approach to rights issues or contested social policy can also occur within any political environment, including within parliamentary committees, elected representatives generally play an important role in mediating the most extreme voices within the community, either through self-reflection on the interests of their electorate, or by commitment to policy positions or values ascribed by their respective political parties. Even when parliamentarians reflect the views of the popular or a powerful majority, they have political incentives to frame their views in inclusive or conciliatory terms in order not to isolate sections of their own electorate or their own political party who may disagree with their position.

These advantages of parliamentary committees over direct democracy mechanisms should not be read as implying that public surveys or online polls have no place in representative democracies.⁹⁵ As Baker has observed, the issue is not whether plebiscites, postal surveys or opinion polls are 'superior to (and should therefore perhaps replace) representative democracy', but rather 'whether direct democracy is a beneficial supplement to representative lawmaking processes.⁹⁶ This suggests that rather than avoiding direct democracy mechanisms altogether, Australian law-makers should look to incorporate these mechanisms into the existing parliamentary committee system where appropriate. This would have the dual benefit of improving the quality and accuracy of information available to parliamentary committees and ameliorating some of the key concerns levelled at direct democracy mechanisms, particularly when applied to complex policy issues or minority rights.

Parliamentary public engagement and the International Parliamentary Engagement Network

The above findings and recommendations are reflected in the recent outcomes of a sustained international focus on improving the quality of parliamentary public engagement led by the International Parliamentary Engagement Network (IPEN)⁹⁷ which held an international workshop on this topic on 26 March 2021. The workshop commenced with an 'Australian hub' which included input from experts around the region.⁹⁸ The hub began with an exploration of the 'big picture' topics, including the question of why public engagement is important to modern parliamentary democracies, who should be responsible for doing the engagement work and how the needs of different 'publics' might be met. The hub also explored the different commitments and responsibilities of parliamentary staff when it comes to engaging with the public.

Officials from a range of Australian jurisdictions, including the Australian Senate and the Parliament of New South Wales, gave insights to the challenges faced by parliamentarians when developing engagement strategies and navigating relationships. The Australian hub ended with discussions about 'outside the box thinking' to help engage those 'publics' previously underrepresented or ignored in public engagement strategies, such as young people and First Nations people in Australia. The key findings from this discussion can be summarised as follows:

1. Improving parliamentary public engagement is not an option but a necessity for modern democracies like Australia. Australian parliamentarians should make this a key priority, particularly when it comes to our young people, our First Nations people and other vulnerable groups.
2. Deliberative theories and ideas should not be misunderstood as 'asking everyone all the time' but rather ensuring quality encounters, time for meaningful dialogues and exchanges and openness to changing positions. This is a challenge for some highly politicised environments like parliaments, but there are reasons for hope (for example, citizens assemblies, mini-publics, work of Millennium Kids). There is also need for deep national reflection on whose voices are missing in our parliamentary landscapes, particularly when it comes to First Nations peoples.
3. There is not one 'public' but many 'publics' and each public demands careful consideration when considering engagement strategies and methods. For example, First Nations peoples must have the opportunity not just to 'be heard' in response to parliamentary activity but to have an active voice in the way the Australian Parliament works, how it engages with First Nations peoples, how it exercises legal and political sovereignty over First Nations peoples.
4. Evaluating engagement strategies and looking for impact beyond the immediate 'success' or 'failure' of a particular technique or inquiry is critical to ensuring we accurately capture the resources required to do things better in the future, and to make the case for more investment in the right engagement activities.
5. Within parliamentary committees there is often a sense of rigid constraints on processes and procedure (for example, conventional ways to do things) and stepping outside of these constraints can attract criticisms and concerns for parliamentary staff about impartiality and independence. However, there is a pressing need to move beyond conventional modes of engagement to reach the public/s that have been ignored or excluded from these processes. Developing separate teams of experts and clear strategies and toolkits can support parliamentary staff to develop appropriate strategies in these areas.
6. 'Thinking outside the box' is part of the solution: parliament should go out to the people instead of the people having to come into parliament. Empowering different public/s to initiate their own forms of engagement – to set the agenda, define the terms of reference, identify the key players – may also help to overcome existing barriers to effective and diverse public engagement.

The Australian 'hub' of the workshop was followed by a European hub, introduced by Cristina Leston-Bandeira (University of Leeds) and Elise Uberoi (UK House of Commons), the co-founders of IPEN. The Europe hub was supported by live scribing from Laura Evans of Nifty Fox Creative, who produced visual summaries of each of the 3 sessions in the hub, culminating in a graphic-illustrated international 'Toolkit' for parliamentary public engagement, summarised by the image below.

It is hoped that this international conversation on the value, role and methods of parliamentary public engagement will continue to inform and inspire practitioners within Australia and support research collaborations across jurisdictions to improve the relationship between parliaments and the publics they represent. As this paper shows, parliamentary committees do – and will continue – to play a central role in this most fundamental of democratic relationships.

Conclusion

This paper has described the importance of evaluating the impact of the parliamentary committee system on the quality of parliamentary law-making in Australia, as well as highlighting the challenges associated with seeking to evaluate a dynamic institution such as a parliamentary committee. By adopting a tiered approach to identifying and evaluating 'impact', this research aims to address the challenges identified during previous studies of parliamentary committees, whilst at the same time providing new, more holistic insights into how different components of the committee system work together, and what is occurring 'behind the scenes' when it comes to legislative scrutiny at the federal level.

The case studies explored in my research demonstrate the evaluation framework in action and uncover the contribution the parliamentary committee system has made to the content and process of counter-terrorism law-making, and to the marriage equality reforms. The case studies reveal that it was parliamentary committees working together as a system that played an important role in securing the political commitment and identifying the legal options needed to advance the marriage equality reforms and made a significant contribution to improving the rights compliance of Australia's counter-terrorism regime. The case studies also suggest that that parliamentary committees may hold many advantages over other mechanisms for resolving contested issues of social policy and minority rights. This is because parliamentary committees have the characteristics of constraint that are needed to enable deliberative decision-making and a nuanced consideration of competing rights and interests to take place. Parliamentary committees can also temper and moderate the findings of direct democracy mechanisms such as postal surveys and plebiscites by utilising the information gained from such exercises to test, challenge or question other evidence and considerations as part of a broader deliberative process. They also provide a 'safe space' for parliamentarians to adjust or even shift their public position on a bill or amendment.

For these reasons, the work of parliamentary committees holds important lessons for those interested in improving Australia's parliamentary model of rights protection, and for those interested in improving the quality of law-making at the federal level. It suggests that there may be some 'unsung heroes' in our current parliamentary landscape that have the potential to provide the foundations for innovative and new ways for rights issues and other contested areas of social policy to be explored and resolved in the future.