Papers on Parliament No. 71 footnotes

Australian political opinion: from the 2019 election to COVID-19

^*This paper was presented as part of the Senate Lecture Series on 12 February 2021. For results from the 2022 federal election, see Sarah Cameron, Ian McAllister, Simon Jackson, Jill Sheppard, The 2022 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2022.
¹ Sarah Cameron and Ian McAllister, Trends in Australian Political Opinion: Results from the Australian Election Study 1987–2022, Australian National University, Canberra, 2022; Ian McAllister, The Australian Voter: Fifty Years of Change, University of New South Wales Press, Sydney, 2011.
² Ian McAllister, Jill Sheppard, Clive Bean, Rachel Gibson, Toni Makkai, Sarah Cameron, Australian Election Study 2019 [computer file], December 2019.
³ Sarah Cameron and Ian McAllister, 'Policies and performance in the 2019 Australian federal election', Australian Journal of Political Science, vol. 55, issue 3, 2020, pp. 239–256.
⁴ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 7.
⁵ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 7.
⁶ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 8.
⁷ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 8.
⁸ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, pp. 8–9.
⁹ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 8.
¹⁰ Timothy Hellwig and Ian McAllister, 'The impact of economic assets on party choice in Australia', Journal of Elections, Public Opinion and Parties, vol. 28, issue 4, 2018, pp. 516–534.
¹¹ Australian Institute of Health and Welfare, Home ownership and housing tenure, 5 April 2023 (accessed 8 May 2023).
¹² Ian McAllister, Jill Sheppard, Clive Bean, Rachel Gibson, Toni Makkai, Sarah Cameron, Australian Election Study 2019 [computer file], December 2019.
¹³ Ian, McAllister and Toni Makkai, 'The decline and rise of class voting? From occupation to culture in Australia', Journal of Sociology, vol. 55, issue 3, 2018, pp. 426–445.
¹⁴ Australian Bureau of Statistics, Housing Occupancy and Costs, 25 May 2022 (accessed 8 May 2023).
¹⁵ Timothy Hellwig and Ian McAllister, 'Party Positions, Asset Ownership and Economic Voting', Political Studies, vol. 67, issue 4, pp. 912–931.
¹⁶ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 12.
¹⁷ Ian McAllister, 'The Personalization of Politics in Australia', Party Politics, vol. 21, issue 3, pp. 337–345; Stephen Quinlan and Ian McAllister, 'Leader or Party? Quantifying and Testing Behavioral Personalization 1996-2017', Party Politics, vol. 28, issue 1, 2021.
¹⁸ Dieter Ohr and Henrik Oscarsson, 'Leader Traits, Leader Image, and Vote Choice', in Kees Aarts, André Blais and Hermann Schmitt (eds), Political Leaders and Democratic Elections, Oxford University Press, Oxford, 2013.
¹⁹ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 12.
²⁰ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 11.
²¹ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 13; Ian McAllister, ANU Poll 2013: Electoral Reform, ADA Dataverse, V1, 2019.
²² Matt Wade, 'We have two Australias': Election results show a growing divide within the nation', Sydney Morning Herald, 25 May 2019.
²³ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 17.
²⁴ Organisation for Economic Co-Operation and Development (OECD), LFS by sex and age – indicators, 2021 (accessed 8 May 2023); Sarah Cameron and Ian McAllister, Australian Election Study Interactive Data, edited by Australian Election Study, 2020.
²⁵ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 17.
²⁶ Joy McCann, and Janet Wilson, 'Representation of women in Australian parliaments 2014', Research Paper, Parliamentary Library, Canberra, 9 July 201, p. 46.
²⁷ Katrine Beauregard, 'Partisanship and the gender gap: support for gender quotas in Australia', Australian Journal of Political Science, vol. 53, issue 3, 2018, pp. 290–319.
²⁸ Jane Norman, 'Women still underrepresented in Parliament after 2019 federal election', ABC News, 27 May 2019.
²⁹ Simone Abendschön and Stephanie Steinmetz, 'The Gender Gap in Voting Revisited: Women's Party Preferences in a European Context', Social Politics: International Studies in Gender, State & Society, vol. 21, issue 2, 2014, pp. 315-344.
³⁰ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 18.
³¹ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 18.
³² Roger Jones, David Gow, Ian McAllister, Australian Election Study 1996 [computer file], June 1996; Clive Bean, David Gow, Ian McAllister, Australian Election Study 1998 [computer file], January 1999; Clive Bean, David Gow, Ian McAllister, Australian Election Study 2001 [computer file], April 2002; Clive Bean, Ian McAllister, Rachel Gibson, David Gow, Australian Election Study 2004 [computer file], March 2005; Clive Bean, Ian McAllister, David Gow, Australian Election Study 2007 [computer file], May 2008; Ian McAllister, Clive Bean, Rachel Gibson, Juliet Pietsch, Australian Election Study 2010 [computer file], May 2011; Ian McAllister, Juliet Pietsch, Clive Bean, Rachel Gibson, Australian Election Study 2013 [computer file], January 2014; Ian McAllister, Juliet Pietsch, Clive Bean, Rachel Gibson, Toni Makkai, Australian Election Study 2016 [computer file], February 2017; Ian McAllister, Jill Sheppard, Clive Bean, Rachel Gibson, Toni Makkai, Sarah Cameron, Australian Election Study 2019 [computer file], December 2019 (Australian Election Study 1996–2019).
³³ Adam Morton, 'The climate change election: where do the parties stand on the environment?', The Guardian, 12 May 2019.
³⁴ Ian McAllister, Roger Jones, David Gow, Australian Election Study 1990 [computer file], November 1990; Roger, Jones, Ian McAllister, David Denemark, David, Gow, Australian Election Study 1993 [computer file], August 1993; and Australian Election Study 1996–2019 (refer to footnote 33).
³⁵ Laura Tingle and Laura Francis, 'Quiet Australians evaluate Scott Morrison's Government six months after election victory', ABC News, 14 November 2019.
³⁶ Ian McAllister and Toni Makkai, 'The decline and rise of class voting? From occupation to culture in Australia', Journal of Sociology, vol. 55, issue 3, 2018, pp. 426–445; Timothy Hellwig and Ian McAllister, 'The Impact of Economic Assets on Party Choice in Australia', Journal of Elections, Public Opinion and Parties, vol. 28, issue 4, 2018, pp. 516–534.
³⁷ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 20.
³⁸ Ian McAllister and Toni Makkai, 'The decline and rise of class voting? From occupation to culture in Australia', Journal of Sociology, vol. 55, issue 3, 2018, pp. 426–445; Timothy Hellwig and Ian McAllister, 'The impact of economic assets on party choice in Australia', Journal of Elections, Public Opinion and Parties, vol. 28, issue 4, 2018, pp. 516–534.
³⁹ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 19.
⁴⁰ Sarah Cameron, and Ian McAllister, Trends in Australian Political Opinion: Results from the Australian Election Study 1987–2019, Canberra, Australian National University, 2019, p. 18.
⁴¹ Sarah Cameron, and Ian McAllister, Trends in Australian Political Opinion: Results from the Australian Election Study 1987–2019, Canberra, Australian National University, 2019, p. 28.
⁴² Sarah Cameron, and Ian McAllister, Trends in Australian Political Opinion: Results from the Australian Election Study 1987–2019, Canberra, Australian National University, 2019, p.21; and Don A. Aitkin, Stability and Change in Australian Politics, Canberra, ANU Press, 1967–1979.
⁴³ Sarah Cameron, and Ian McAllister, Trends in Australian Political Opinion: Results from the Australian Election Study 1987-2019, Canberra, The Australian National University, 2019, p. 99.
⁴⁴ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 15; Don A. Aitkin, Stability and Change in Australian Politics, Canberra, ANU Press, 1969–1979.
⁴⁵ Sarah Cameron and Ian McAllister, The 2019 Australian Federal Election: Results from the Australian Election Study, Canberra, Australian National University, 2019, p. 15.
⁴⁶ Sarah Cameron, 'Government performance and dissatisfaction with democracy in Australia', Australian Journal of Political Science, vol. 55, issue 2, 2020, pp. 170–190.
⁴⁷ Sarah Cameron, 'Government performance and dissatisfaction with democracy in Australia', Australian Journal of Political Science, vol. 55, issue 2, 2020, p. 174.
⁴⁸ John E. Mueller, War, Presidents and Public Opinion, John Wiley & Sons Inc, New York 1973; Matthew A. Baum, 'The Constituent Foundations of the Rally-Round-the-Flag Phenomenon', International Studies Quarterly, vol. 46, issue 2, 2002, pp. 263–298.
⁴⁹ Marc J. Hetherington and Michael Nelson, 'Anatomy of a Rally Effect: George W. Bush and the War on Terrorism', PS: Political Science & Politics, vol. 36, issue 1, 2003, pp. 37–42.
⁵⁰ Mark Andreas Kayser and Michael Peress, 'Benchmarking across Borders: Electoral Accountability and the Necessity of Comparison', American Political Science Review, vol. 106, issue 3, 2012, pp. 661–684.
⁵¹ Katharine Murphy, 'Essential poll: Morrison still in the doldrums with voters after bushfires and sports grants', The Guardian, 11 February 2020.
⁵² Katharine Murphy, 'Essential poll: Morrison still in the doldrums with voters after bushfires and sports grants', The Guardian, 11 February 2020.
⁵³ YouGov, How well is Boris Johnson doing as Prime Minister?, Monthly tracker, https://yougov.co.uk/topics/politics/trackers/boris-johnson-approval-rating (accessed 30 March 2023).
⁵⁴ Nicholas Biddle and Karuna Reddy, ANU Poll 2019: Role of the University, ADA Dataverse, V1, 2019; Nicholas Biddle, Ben Edwards, Diane Herz, Toni Makkai, and Ian McAllister, ANU Poll 2020: Bushfires, The Environment, and Optimism For The Future, ADA Dataverse, V2, 2020; Nicholas Biddle, Ben Edwards, Matthew Gray, and Kate Sollis, ANU Poll 2020: COVID-19 attitudes and behaviours (longitudinal panel data), ADA Dataverse, V1, 2020; Nicholas Biddle, Ben Edwards, Matthew Gray, and Kate Sollis, ANU Poll 2020: COVID-19 attitudes and behaviours, Wave 2 (May), ADA Dataverse, V1, 2020; Nicholas Biddle, Ben Edwards, Matthew Gray, and Kate Sollis, ANU Poll 2020: COVID-19 attitudes and behaviours, Wave 3 (August), ADA Dataverse, V1, 2020.

Reflections on the 10th anniversary of the Parliamentary Joint Committee on Human Rights

^* This paper was presented as part of the Senate Lecture Series on 19 August 2022 and can be cited as: Charlotte Fletcher and Anita Coles 'Reflections on the 10th Anniversary of the Parliamentary Joint Committee on Human Rights' Senate Lecture Series August 2022.The views expressed in this article are entirely the authors and do not represent the views of the Parliamentary Joint Committee on Human Rights (PJCHR). With thanks for research support provided by Ingrid Zappe Legislative Research Officer to the PJCHR and to Rebecca Preston Rachel Callinan and Associate Professor Jacqueline Mowbray.
¹ National Human Rights Consultation Committee National Human Rights Consultation Report September 2009. Recommendation 7 recommended the establishment of a joint committee on human rights be established to scrutinise legislation.
² Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).
³ Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) s 5.
⁴ 4See the Hon Robert McClelland MP House of Representatives Hansard 30 September 2010 p. 271.
⁵ For example the most recent resolution of appointment for the PJCHR was determined in the House of Representatives on
26 July 2022 and in the Senate on 27 July 2022 and is available on the PJCHR’s website.
⁶ Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) para 7(a). ‘Human rights’ is defined in the Act to mean the rights and freedoms recognised by 7 core international instruments. See s 3.
⁷ See for example PJCHR Ninth Report of 2013 (Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation) 19 June 2013.
⁸ Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) para 7(b)–(c).
⁹ These reports are all available on the PJCHR’s website.
¹⁰ These indexes are available on the PJCHR’s website.
¹¹ In 2022 there were over 400 subscribers to the PJCHR’s scrutiny updates.
¹² The secretariat includes a Committee Secretary 2 Principal Research Officers and a Legislative Research Officer. From 2012 to 2022 the PJCHR’s legal advisers have included: Emeritus Professor Andrew Byrnes Professor Simon Rice OAM Dr Aruna Sathanapally and Associate Professor Jacqueline Mowbray.
¹³ See for example Mr Harry Jenkins MP House of Representatives Hansard 22 August 2012 p. 9511.
¹⁴ See for example PJCHR First Report of 2013 6 February 2013 pp. xi–xii.
¹⁵ See for example PJCHR First Report of 2013 6 February 2013 pp. xi–xii. In this executive summary the Chair noted that the PJCHR identified 116 legislative instruments that did not appear to raise human rights concerns but were accompanied by statements of compatibility that did not meet the PJCHR’s expectations and so would write to the relevant ministers in an advisory capacity to provide guidance on the preparation of these statements.
¹⁶ See the PJCHR’s website for archive of statements and speeches.
¹⁷ This included by writing directly to minister (see for example PJCHR First Report of 2013 6 February 2013 pp. xi–xii); and by noting these concerns in tabling speeches (see for example PJCHR Annual Report 2014-15 p. 24; PJCHR  Annual Report 2018 p. 34).
¹⁸ Contrast for example the tone and substance of a ministerial response received by the PJCHR from then Minister for Industrial Relations in 2015 (PJCHR Twentieth Report of the 44th Parliament 18 March 2015 p. 76) with a recent response from the Minister for Home Affairs in 2022 (PJCHR Report 2 of 2022 25 March 2022 pp. 78–112). For a further consideration of the tone and substance of early responses to the PJCHR see Simon Rice ‘Allowing for Dissent: Opening up Human Rights Dialogue in the Australian Parliament’ in Julie Debeljak and Laura Grenfell (eds) Law Making and Human Rights Thomas Reuters Pyrmont 2020 pp. 99–134.
¹⁹ The PJCHR authorised the secretariat to undertake this work from 2012 to 2013 2018 to 2019 and from 2021 to present. See for example PJCHR Annual Report 2018 12 February 2019 p. 36; PJCHR Annual Report 2021 28 September 2022.
²⁰ The PJCHR takes the same approach in respect of delegated legislation which is discussed further below.
²¹ See for example the Chair’s (Senator Dean Smith’s) tabling speech in February 2014 in relation to the Second Report of the 44th Parliament: ‘Regrettably the committee notes that some of the statements of compatibility accompanying bills and instruments considered in this Second Report have fallen short of the committee’s expectations … Where further information is required to determine these questions the committee will write to the sponsor of the legislation in a spirit of constructive dialogue to request clarification’.
²² Note since 2019 the PJCHR’s reports have indicated that where the PJCHR has not commented on a bill this may be ‘notwithstanding that the statement of compatibility accompanying the bill may be inadequate’ see Report 3 of 2019 onwards.
²³ Bills are only introduced when parliament is sitting which takes place for 18 to 20 weeks each year on average.
²⁴ The PJCHR commented on the following percentage of bills each year: in 2012 50%; in 2013 46%; in 2014 20%; in 2015 22%; in 2016 24%; in 2017 26%; in 2018 24%; in 2019 32%; in 2020 18%; in 2021 21%; and in 2022 14% (at the end of the 46th Parliament).
²⁵ See PJCHR  Report 3 of 2019 30 July 2019 pp. 15–16; PJCHR Report 4 of 2019 10 September 2019 p. 10; PJCHR Report 5 of 2019 17 September 2019 p. 15. These reports state that ‘[t]he committee reiterates its views as set out in its previous reports on the following bills. These bills have been reintroduced in relevantly substantially similar terms to those previously commented on’.
²⁶ Delegated legislation is law made by a person or body other than parliament (such as the Governor-General a minister or official) under authority granted to that person or body by the parliament. Delegated legislation has the same force of law as an Act of Parliament. Individual pieces of delegated legislation are known by a variety of names such as regulations rules or determinations; however they are broadly termed ‘legislative instruments’. More information about delegated legislation and how it operates is available on the Australian Parliament House website.
²⁷ See Legislation Act 2003 (Cth) s 12.
²⁸ For example on 11 April 2022 the Governor-General issued a proclamation proroguing the parliament and dissolving the House of Representatives officially bringing an end to the 46th Parliament. During 2 months of the subsequent election period between 12 April and 12 July 2022 142 legislative instruments were registered.
²⁹ Since 16 June 2021 the Senate Standing Committee on Delegated Legislation has the authority to routinely scrutinise exempt delegated legislation Senate standing order 23(4A). This followed an own-motion inquiry into exempt delegated legislation. Senate Standing Committee for the Scrutiny of Delegated Legislation Inquiry into the exemption of delegated legislation from parliamentary oversight Final Report 16 March 2021 recommendation 10.
³⁰ For example Statement of Principles concerning Graves disease (Reasonable Hypothesis) (No. 7 of 2022) [F2022L0008]. As new conditions are progressively recognised as potentially being related to services rendered new legislative instruments are continuously made under the authority of the Veterans’ Entitlements Act 1986. For example of the 34 legislative instruments registered between 24 December 2021 and 5 January 2022 20 were Statements of Principles related to various diseases and medical conditions.
³¹ For example Currency (Australian Coins) Amendment (2022 Royal Australian Mint No. 2) Determination 2022 [F2022L00309].
³² For example Torres Strait Fisheries Tropical Rock Lobster (Total Allowable Catch) Amendment Determination (No. 1) 2022 [F2022L00300].
³³ For example List of Threatened Species Amendment (Tarennoidea wallichii (304)) Instrument 2021 [F2022L00426].
³⁴ For example Accounting Standard AASB 2022-1 Amendments to Australian Accounting Standards – Initial Application of AASB 17 and AASB 9 – Comparative Information [F2022L00398].
³⁵ As with the scrutiny of bills in practice this function is delegated to the PJCHR secretariat who bring to the PJCHR’s attention any legislative instruments that appear to raise human rights concerns.
³⁶ See for example PJCHR First Report of 2013 6 February 2013 pp. 161–177.
³⁷ PJCHR Tenth Report of the 44th Parliament 26 August 2014 p. ix (bills introduced 7–17 July 2014; legislative instruments received 21 June–25 July 2014).
³⁸ See George Williams and Daniel Reynolds ‘The Operation and Impact of Australia’s Parliamentary Scrutiny Regime for Human Rights’ Monash University Law Review vol. 41 no. 2 2015 pp. 469–507; Daniel Reynolds and George Williams ‘Evaluating the Impact of Australia’s Federal Human Rights Scrutiny Regime’ (pp. 67–98) in Julie Debeljak and Laura Grenfell (eds) Law Making and Human Rights Thomas Reuters Pyrmont 2020.
³⁹ PJCHR Report 2 of 2018 13 February 2018 Chapter 1 and all reports since that time.
⁴⁰ The PJCHR’s reports include an explanation of how to find the relevant legislative instruments under consideration—namely to identify which legislative instruments have been scrutinised by the PJCHR during a specific time period select ‘legislative instruments’ as the relevant type of legislation select the event as ‘assent/making’ and input the relevant registration date range in the FRL’s advanced search function.
⁴¹ The PJCHR commented on the following percentage of legislative instruments each year: in 2012 50%; in 2013 2.3%; in 2014 3.9%; in 2015 1.9%; in 2016 3.7%; in 2017 2.8%; in 2018 2.6%; in 2019 1.2%; in 2020 2%; in 2021 2.1%; and in 2022 1.1% (at the end of the 46th Parliament).
⁴² Note the PJCHR’s 6 scrutiny reports that year only examined legislative instruments registered on the FRL between
9 November 2018 and 19 September 2019. See PJCHR Report 1 of 2019 12 February 2019 p. 1; PJCHR Report 6 of 2019 5 December 2019 p. 1.
⁴³ The 45th Parliament was prorogued on 11 April 2019 and the 46th Parliament commenced on 2 July 2019.
⁴⁴ Some legislative instruments may have different periods of disallowance if so specified by its enabling legislation. If a notice of motion to disallow a legislative instrument is lodged this extends the disallowance period usually by a further 15 sitting days see Legislation Act 2003 (Cth) s 42.
⁴⁵ Note this paper does not graph the timeliness of the PJCHR’s reporting on legislative instruments over 10 years owing to the significant volume of instruments considered.
⁴⁶ As the chart shows the percentage of bills that had passed before the PJCHR’s initial comment were: in the 6 months of 2012 23%; in 2013 16.6%; in 2014 24.8%; and in 2015 14%.
⁴⁷ The percentage of bills that had passed before the PJCHR’s initial comment were: in 2016 7.5%; in 2017 3.7%; in 2018 4.6%; in 2019 4.2%; in 2020 8.3%; and in 2021 5.4%.
⁴⁸ Of the 24 bills that passed before the PJCHR’s final comment in 2020 15 passed both houses of parliament on the same day they were introduced and all passed both houses within 7 calendar days of their introduction.
⁴⁹ For example the Assistance for Severely Affected Regions (Special Appropriation) (Coronavirus Economic Response Package) Bill 2020 Australian Business Growth Fund (Coronavirus Economic Response Package) Bill 2020 and Boosting Cash Flow for Employers (Coronavirus Economic Response Package) Bill 2020 were introduced into the House of Representatives on 23 March 2020 passing both houses that day. Similarly the Privacy Amendment (Public Health Contact Information) Bill 2020 was introduced into the House of Representatives on 12 May 2020 and passed both houses 2 days later meaning that the PJCHR had no time to consider these bills or comment on them before they passed.
⁵⁰ For example Daniel Reynolds and George Williams ‘Evaluating the Impact of Australia’s Federal Human Rights Scrutiny Regime’ in Julie Debeljak and Laura Grenfell (eds) Law Making and Human Rights Thomas Reuters Pyrmont 2020 p. 95.
⁵¹ Of the 653 private members’ bills and private senators’ bills introduced into the Australian Parliament since 1901 only 30 have been passed into law.
⁵² See for example Julie Debeljak and Laura Grenfell (eds) Law Making and Human Rights Thomas Reuters Pyrmont 2020 including Adam Fletcher ‘Human Rights Scrutiny in the Federal Parliament: Smokescreen or Democratic Solution’ pp. 31–63 and Daniel Reynolds and George Williams ‘Evaluating the Impact of Australia’s Federal Human Rights Scrutiny Regime’ pp. 67–98. For example Professor Williams and Daniel Reynolds have argued (at p. 75) that in the period between August 2017 to December 2020 half of the PJCHR’s comments were not available until after the bill or disallowance period had passed. However this figure does not appear to be correct and the combination of statistics relating to bills and legislative instruments seems to have considerably skewed the final numbers. Between August 2017 to December 2020 of the 106 instances where the PJCHR concluded there were human rights concerns with a bill or legislative instrument 27% of instances occurred after the bill or disallowance period had passed. However the figures differ markedly in relation to bills compared to legislative instruments. For bills 87% of the PJCHR’s comments were available before the bill passed (out of 60 bills 52 were on time 8 out of time) whereas in relation to legislative instruments 54% of comments were made before the disallowance period ended (25 instances within the disallowance period 21 instances after the disallowance period had ended).
⁵³ For further information see PJCHR Annual Report 2020 13 May 2021 p. 17.
⁵⁴ See PJCHR Annual Report 2018 12 February 2019 p. 33.
⁵⁵ 2012 to 2013 7.8%; 2014 to 2015 19%; 2015 to 2016 9.2%; 2016 2017 30%; 2018 32%; 2019 34%; 2020 70%; and 2021 71%.
⁵⁶ In 2018 a response relating to 9 instruments made under the Autonomous Sanctions Act 2011 was late. Although it related to only one report entry it was counted as late 9 times. As it also required a further response which was also late it was counted again as late an additional 9 times. Similarly the 5 various park management plans made under the Environment Protection and Biodiversity Conservation Act 1999 were counted as 5 late responses although they refer to only one report entry. See PJCHR Annual Report 2018 12 February 2019 para [3.54].
⁵⁷ ontrast for example the substance of a ministerial response received by the PJCHR from then Minister for Industrial Relations in 2015 (PJCHR Twentieth Report of the 44th Parliament 18 March 2015 p. 76) with a recent response from the then Minister for Home Affairs in 2022 (PJCHR Report 2 of 2022 25 March 2022 pp. 78–112).
⁵⁸ Human Rights (Parliamentary Scrutiny) Act 2011(Cth) para 7(a). ‘Human rights’ is defined in the Act to mean the rights and freedoms recognised by 7 core international instruments. See s 3.
⁵⁹ The Hon Robert McClelland MP House of Representatives Hansard 30 September 2010 p. 271.
⁶⁰ The Hon Senator George Brandis KC Senate Hansard 25 November 2011 p. 9661.
⁶¹ Mr Graham Perrett MP House of Representatives Hansard 22 November 2010 p. 3239.
⁶² Mr Harry Jenkins MP House of Representatives Hansard 20 June 2012 p. 7176.
⁶³ George Williams and Daniel Reynolds ‘The Operation and Impact of Australia’s Parliamentary Scrutiny Regime for Human Rights’ Monash University Law Review vol. 41 no. 2 2015 pp. 469–507 Daniel Reynolds and George Williams ‘Evaluating the Impact of Australia’s Federal Human Rights Scrutiny Regime’ in Julie Debeljak and Laura Grenfell (eds) Law Making and Human Rights Thomas Reuters Pyrmont 2020 pp. 67–98.
⁶⁴ Laura Grenfell and Sarah Moulds ‘The role of Committees in Rights Protection in Federal and State Parliament in Australia’ UNSW Law Journal vol 41 no. 1 2018 pp. 40–79 (see p. 44).
⁶⁵ See Zoe Hutchinson ‘The Role Operation and Effectiveness of the Commonwealth Parliamentary Joint Committee on Human Rights after Five Years’ Australasian Parliamentary Review vol. 33 no. 1 2018 pp. 72–107 who cites: Carolyn Evans and Simon Evans ‘Evaluating the Human Rights Performance of Legislatures’ Human Rights Law Review vol. 6 2006 pp. 545 551 545 and 570; Meg Russell and Meghan Benton ‘Assessing the Impact of Parliamentary Oversight Committees: the select committees in the British House of Commons’ Parliamentary Affairs vol. 66 2013  pp. 772 and 766; Aileen Kavanagh ‘The Joint Committee on Human Rights: a Hybrid Breed of Constitutional Watchdog’ in Murray Hunt Hayley J. Hooper and Paul Yowell (eds) Parliaments and Human Rights: Redressing the Democratic Deficit Oxford Hart Publishing 2015 p. 115; Malcolm Aldon ‘Rating the Effectiveness of Parliamentary Committee Reports: the Methodology’ Legislative Studies vol. 15 no. 1 2000 p. 22; and Geoffrey Lindell ‘How (and Whether?) to Evaluate Parliamentary Committees – from a Lawyer’s Perspective’ About the House 2005 p. 55.
⁶⁶ Meg Russell and Megan Benton ‘Assessing the Policy Impact of Parliament: Methodological Challenges and Possible Future Approaches’. Paper presented at the PSA Legislative Studies Specialist Group Conference London United Kingdom 24 June 2009 cited in Murray Hunt Hayley J Hooper and Paul Yowell (eds) Parliaments and Human Rights: Redressing the Democratic Deficit Oxford Hart Publishing 2015 p. 131.
⁶⁷ Sarah Moulds Committees of Influence: Parliamentary Rights Scrutiny and Counter-Terrorism Lawmaking in Australia Springer Singapore Private. Limited 2020.
⁶⁸ See inquiry website
⁶⁹ Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 [F2019L00511].
⁷⁰ See inquiry website.
⁷¹ PJCHR Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 13 November 2019 pp. 54–55.
⁷² See for example Matt Woodley ‘Restraint in aged care a last resort: RACGP President’ Royal Australian College of General Practitioners 20 August 2019; Human Rights Watch Australia: Royal Commission Finds Aged Care Horrors 4 November 2019.
⁷³ Human Rights Watch Submission to the Universal Periodic Review of Australia July 2020.
⁷⁴ PJCHR Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 – Government response 18 March 2020.
⁷⁵ Quality of Care Amendment (Reviewing Restraints Principles) Principles 2019.
⁷⁶ Australian Healthcare Associates Independent review of legislative provisions governing the use of restraint in residential aged care: Final report December 2020.
⁷⁷ Royal Commission into Aged Care Quality and Safety Final Report: Care Dignity and Respect – Volume 3A The New System 2021 pp. 109–110.
⁷⁸ Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021 (now Act) and related legislation. See also Aged Care Legislation Amendment (Royal Commission Response No. 1) Principles 2021.
⁷⁹ See PJCHR Report 2 of 2021 24 February 2021; PJCHR ParentsNext: examination of Social Security (Parenting payment participation requirements–class of persons) Instrument 2021 4 August 2021.
⁸⁰ Social Security (Parenting payment participation requirements - class of persons) Instrument 2021 [F2021L00064].
⁸¹ ee PJCHR Report 2 of 2021 24 February 2021.
⁸² See inquiry webpage.
⁸³ Senator Pat Dodson Senate Hansard 11 May 2021 p. 2363.
⁸⁴ See PJCHR ParentsNext: examination of Social Security (Parenting payment participation requirements–class of persons) Instrument 2021 4 August 2021.
⁸⁵ For example: Luke Henriques-Gomes ‘Punitive and flawed’ ParentsNext program should not be expanded experts warn’ Guardian Australia 24 May 2021; Australian Human Rights Commission ‘Commission welcomes ParentsNext Inquiry recommendations’ 5 August 2021; Jacqueline Maley ‘Unable to meet basic needs’: ParentsNext program suspended a third of parents’ payments’ Sydney Morning Herald 11 August 2021; Asher Wolf ‘Did the government learn nothing from the robodebt fiasco?’ Canberra Times 1 September 2021; Lucy Dean ‘"Humiliating’: How Centrelink "traps" women in violence relationships’ Yahoo Finance 7 September 2021; Deb Tsorbaris ‘Child poverty is a policy choice’ Pro Bono Australia 18 October 2021; Terese Edwards ‘A close encounter with justice for the ParentsNext program’ Economic Justice Australia 22 February 2022.
⁸⁶ Senator Pat Dodson Senate Hansard 11 August 2021 p. 4733.
⁸⁷ Senator Rachel Siewert Senate Hansard 11 August 2021 p. 4736.
⁸⁸ Note this vote was held during the COVID-19 pandemic when many senators were attending parliament remotely. Those senators attending remotely were permitted to speak to motions (as Senator Dodson did) but only those physically present in the chamber were permitted to vote.
⁸⁹ Journals of the Senate No.112 11 August 2021 pp. 3908–3909.
⁹⁰ See Senator Rachel Siewert Australian Greens press release12 August 2021; Ms Meryl Swanson MP Federal Member for Paterson press release 30 August 2021.
⁹¹ See PJCHR Report 11 of 2018 17 October 2018; PJCHR Report 12 of 2018 27 November 2018; PJCHR Report 4 of 2019 10 September 2019.
⁹² See also Senate Standing Committee for the Scrutiny of Bills Scrutiny Digest 11 of 2018 19 September 2018 p. 15.
⁹³ The Hon Peter Dutton MP House of Representatives Hansard 4 July 2019 p. 294; The Hon David Coleman MP House of Representatives Hansard 12 September 2019 pp. 2771–2772.
⁹⁴ Senator Nick McKim Senate Hansard 19 September 2019 pp. 2699–2702.
⁹⁵ See PJCHR Report 2 of 2021 24 February 2021; PJCHR Report 4 of 2021 31 March 2021.
⁹⁶ PJCHR Report 2 of 2021 24 February 2021 pp. 16–17.
⁹⁷ Senate Finance and Public Administration Inquiry into Data Availability and Transparency Bill 2020 [Provisions] and Data Availability and Transparency (Consequential Amendments) Bill 2020 [Provisions] April 2021 pp. 35–45.
⁹⁸ See Senate Finance and Public Administration Inquiry into Data Availability and Transparency Bill 2020 [Provisions] and Data Availability and Transparency (Consequential Amendments) Bill 2020 [Provisions] April 2021 p. 78.
⁹⁹ The Hon Sturt Robert MP House of Representatives Hansard 30 March 2022 p. 1264.
¹⁰⁰ Data Availability and Transparency Bill supplementary explanatory statement.
¹⁰¹ See PJCHR Report 10 of 2021 25 August 2021; PJCHR Report 12 of 2021 20 October 2021.
¹⁰² Migration Amendment (Subclass 417 and 462 Visas) Regulations 2021 [F2021L01030].
¹⁰³ See PJCHR Report 12 of 2021 20 October 2021.
¹⁰⁴ Migration Amendment (Subclass 417 and 462 Visas) Regulations 2022 [F2022L00244].
¹⁰⁵ Explanatory Statement Migration Amendment (Subclass 417 and 462 Visas) Regulations 2022 [F2022L00244].
¹⁰⁶ Sydney Harbour Federal Trust Regulations 2001 [F2010C00261]; Legislation (Deferral of Sunsetting—Sydney Harbour Federation Trust Regulations) Certificate 2019 [F2019L01211]; Sydney Harbour Federal Trust Amendment Bill 2021; and Sydney Harbour Federation Trust Regulations [F2021L01255]. See PJCHR Report 1 of 2020 5 February 2020; PJCHR Report 4 of 2020 9 April 2020; PJCHR Report 4 of 2021 31 March 2021; PJCHR Report 5 of 2021 29 April 2021; PJCHR Report 12 of 2021 20 October 2021; PJCHR Report 14 of 2021 24 November 2021.
¹⁰⁷ The Sydney Harbour Trust manages: Cockatoo Island North Head Sanctuary in Manly Headland Park in Mosman Sub Base Platypus in Neutral Bay Woolwich Dock and Parklands the former Marine Biological Station at Watsons Bay and Macquarie Lightstation in Vaucluse.
¹⁰⁸ Focusing only on the effect of the deferral instrument rather than the substantive effect of continuing the original regulation see PJCHR Report 1 of 2020 5 February 2021 p. 36.
¹⁰⁹ PJCHR Report 4 of 2020 9 April 2020 pp. 100–101.
¹¹⁰ PJCHR Report 4 of 2020 9 April 2020 p. 102.
¹¹¹ PJCHR Report 4 of 2021 31 March 2021 p. 4.
¹¹² PJCHR Report 5 of 2021 29 April 2021 p. 87.
¹¹³ Sydney Harbour Federation Trust Regulations [F2021L01255].
¹¹⁴ Sydney Harbour Federation Trust Regulations 2021 [F2021L01255] (Cth) s 19.
¹¹⁵ Mr Josh Wilson MP House of Representatives Hansard 1 June 2021 p. 5161.
¹¹⁶ Sydney Harbour Federation Trust Regulations 2021 [F2021L01255] (Cth) s 19.
¹¹⁷ PJCHR Report 14 of 2021 24 November 2021 pp. 67–69.
¹¹⁸ Sydney Harbour Federation Trust Regulations [F2021L01255] statement of compatibility with human rights pp. 36–37.
¹¹⁹ See PJCHR Twentieth Report of the 44th Parliament 18 March 2015; PJCHR Twenty-fourth Report of the 44th Parliament 23 June 2015
¹²⁰ Senate Legal and Constitutional Affairs Legislation Committee Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 [Provisions] June 2015 p. 8.
¹²¹ Andrew & Renata Kaldor Centre for International Refugee Law and Gilbert + Tobin Centre of Public Law UNSW Submission 8 p. 5.
¹²² Law Council of Australia Submission 30.
¹²³ Australian Lawyers for Human Rights Submission 15. See also for example the Asylum Seeker Resource Centre Submission 26 p. 6; Refugee Council of Australia Submission 27; Public Law and Policy Research Unit University of Adelaide Submission 37; Civil Liberties Australia Submission 121 p. 9.
¹²⁴ See Mr Graham Perrett MP; Ms Melissa Parke MP Mr Frank Zappia MP House of Representatives Hansard 13 May 2015 p. 3838; Senator Sue Lines Senate Hansard 19 August 2015 p. 5829; Senator Richard Di Natale Senate Hansard
20 August 2015 p. 5915.
¹²⁵ See PJCHR Report 7 of 2020 17 June 2020; PJCHR Report 9 of 2020 18 August 2020.
¹²⁶ Parliamentary joint Committee on Intelligence and Security (PJCIS) Advisory Report on the Australian Security Intelligence Organisation Amendment Bill 2020 December 2020.
¹²⁷ Australian Security Intelligence Organisation (Statement of Procedures) Instrument 2020 [F2020L01714].
¹²⁸ PJCIS Advisory Report on the Australian Security Intelligence Organisation Amendment Bill 2020 December 2020.
¹²⁹ A summary of the passage of the bill (including amendments and amended explanatory materials) is available on the bill homepage.
¹³⁰ Senator the Hon Richard Colbeck Senate Hansard 10 December 2020 pp. 7441–7456.
¹³¹ See Australian Security Intelligence Organisation Amendment Bill supplementary explanatory memorandum.
¹³² Senator the Hon Sarah Henderson Senate Hansard 3 February 2021 p. 290.
¹³³ Both of these documents can be found on the bill homepage and the amendments to the original document can be observed by using the ‘compare document’ function in Microsoft Word.
¹³⁴ Australian Security Intelligence Organisation (Statement of Procedures) Instrument 2020 [F2020L01714].
¹³⁵ Australian Public Service Commissioner’s Directions 2013 [F2013L00448] (the 2013 Directions); Australian Public Service Commissioner’s Amendment (Notification of Decisions and Other Measures) Direction 2014 [F2014L01426]; Australian Public Service Commissioner’s Directions 2016 [F2016L01430]; Australian Public Service Commissioner’s Directions 2022 [F2022L00088]. See PJCHR Sixth Report of 2013 May 2013; PJCHR Eighteenth Report of the 44th Parliament 10 February 2015; PJCHR Twenty-first Report of the 44th Parliament 24 March 2015; PJCHR Report 8 of 2016 9 November 2016; Report 10 of 2016 30 November 2016. Note that very similar directives were made in relation to the parliamentary service with amendments made to those in response to the PJCHR’s concerns: see First Report of 44th Parliament and Third Report of the 44th Parliament regarding the Parliamentary Service Determination 2013; Report 1 of 2017 and Report 2 of 2017 regarding the Parliamentary Service Amendment (Notification of Decisions and Other Measures) Determination 2016; and Report 1 of 2018 and Report 3 of 2018 regarding the Parliamentary Service Amendment (Managing Recruitment Activity and Other Measures) Determination 2017.
¹³⁶ Australian Public Service Commissioner’s Amendment (Notification of Decisions and Other Measures) Direction 2014 [F2014L01426] statement of compatibility with human rights.
¹³⁷ Australian Public Service Commissioner’s Amendment (Notification of Decisions and Other Measures) Direction 2014 [F2014L01426] statement of compatibility with human rights.
¹³⁸ PJCHR Twenty-first report of the 44th Parliament 24 March 2015 p. 27.
¹³⁹ PJCHR Report 10 of 2016 30 November 2016 p. 16.
¹⁴⁰ Australian Public Service Commissioner’s Directions 2022 [F2022L00088].
¹⁴¹ This was registered on the FRL on 31 January 2022 meaning that it was considered by the PJCHR in its Report 2 of 2022 (which considered instruments registered between 20 December 2021 and 15 March 2022).
¹⁴² See PJCHR Twenty-eighth report of the 44th Parliament 17 September 2015; PJCHR Thirty-Third Report of the 44th Parliament 2 February 2016; PJCHR Report 9 of 2016 22 November 2016; PJCHR Report 3 of 2018 27 March 2018; PJCHR Report 4 of 2018 8 May 2018; PJCHR Report 6 of 2018 26 June 2018;  PJCHR Report 8 of 2021 23 June 2021.
¹⁴³ PJCHR Twenty-Eighth Report of the 44th Parliament 17 September 2015 pp. 15–38; PJCHR Thirty-third Report of the 44th Parliament 2 February 2016 pp. 17–25.
¹⁴⁴ PJCHR Report 9 of 2016 22 November 2016 pp. 41–55.
¹⁴⁵ PJCHR Report 3 of 2018 27 March 2018 pp. 82–96; PJCHR Report 4 of 2018 8 May 2018; PJCHR Report 6 of 2018
26 June 2018 pp. 104–131.
¹⁴⁶ PJCHR Report 8 of 2021 23 June 2021 pp. 27–28.
¹⁴⁷ Compare for example the statements of compatibility for legislative instruments from 2013 to 2022: for 2013 example see: Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Zimbabwe) Amendment List 2013 [F2013L00477]. For 2022 example see: Autonomous Sanctions (Designated Persons and Entities and Declared Persons—Russia and Ukraine) Amendment (No. 16) Instrument 2022 [F2022L00707].
¹⁴⁸ See Karen Middleton Rush to fix ‘unlawful’ list The Saturday Paper 10 July 2021.
¹⁴⁹ Charter of the United Nations Amendment Bill 2021 (passed both chambers on 2 September 2021).
¹⁵⁰ See for example PJCHR Report 2 of 2022 24 February 2022 p. 68 (footnotes 4 and 5 which list the 5 autonomous sanctions instruments registered in the reporting period—between 22 December 2020 and 27 January 2021—and list the PJCHR’s earlier substantive reports which consider the compatibility of autonomous sanctions with human rights).
¹⁵¹ PJCHR Annual Report 2013-2014 3 May 2016 p. 18.
¹⁵² PJCHR Annual Report 2018 12 February 2019 p. 36.
¹⁵³ See for example National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2021 (No. 10) [F2021L01485] statement of compatibility with human rights (registered on the FRL on 31 October 2021).
¹⁵⁴ See for example National Health (Pharmaceutical benefits – early supply) Amendment Instrument 2022 (No. 5) [F2022L00725] statement of compatibility with human rights (registered on the FRL on 27 May 2022).
¹⁵⁵ These lists dating from the beginning of the pandemic to December 2021 are available on the PJCHR website. The Senate Standing Committee for the Scrutiny of Delegated Legislation published a similar list of legislative instruments only.
¹⁵⁶ PJCHR ‘Human rights committee to scrutinise COVID-19 related legislation’ Media Release 15 April 2020.
¹⁵⁷ The PJCHR published 6 pieces of correspondence received.
¹⁵⁸ PJCHR ‘Human rights scrutiny report of COVID-19 legislation’ Report 5 of 2020 29 April 2020.
¹⁵⁹ See Biosecurity (Listed Human Diseases) Amendment Determination 2020 [F2020L00037].
¹⁶⁰ PJCHR ‘Human rights scrutiny report of COVID-19 legislation’ Report 5 of 2020 pp. 1–4.
¹⁶¹ PJCHR ‘Human rights scrutiny report of COVID-19 legislation’ Report 5 of 2020 pp. 1–4.
¹⁶² The requirement to prepare a statement of compatibility with human rights in relation only to legislative instruments subject to disallowance is found in subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).
¹⁶³ As of 16 June 2021 the Senate Standing Committee for the Scrutiny of Delegated Legislation can now routinely scrutinise all legislative instruments.
¹⁶⁴ See PJCHR Report 5 of 2020 5 April 2020; PJCHR Report 6 of 2020 20 May 2020; PJCHR Report 7 of 2020
17 June 2020.
¹⁶⁵ See COVID-19 bills and instruments indexes 2020 to 2021.
¹⁶⁶ In 2020 and 2021 the Senate Standing Committee for the Scrutiny of Delegated Legislation inquired into the exemption of delegated legislation from parliamentary oversight. This inquiry raised significant concerns about the large volume of legislative instruments which were exempt from parliamentary oversight. See Senate Standing Committee for the Scrutiny of Delegated Legislation Exemption of delegated legislation from parliamentary oversight final report 16 March 2021 recommendation 9. The Senate adopted that recommendation as a resolution of the chamber on 16 June 2021.
¹⁶⁷ Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Determination 2020 [F2020L00324] and Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Amendment (No. 1) Determination 2020 [F2020L00415] explanatory statements.
¹⁶⁸ PJCHR Report 7 of 2020 17 June 2020 pp. 13–19.
¹⁶⁹ Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Amendment Determination (No. 2) 2020 [F2020L00466].
¹⁷⁰ PJCHR Report 6 of 2020 20 May 2020 pp. 2–4.
¹⁷¹ It is noted that in 2021 and 2022 the Senate Standing Committee for the Scrutiny of Bills reviewed the appropriateness of provisions in the Biosecurity Act allowing delegated legislation to be exempt from parliamentary disallowance. The committee identified 30 provisions—including those pursuant to which COVID-19 was first designated a ‘listed human disease’—which it considered may inappropriately exempted from disallowance. It recommended that the Biosecurity Act be amended to provide that instruments made under the Act be subject to disallowance. See Senate Standing Committee for the Scrutiny of Bills Review of exemption from disallowance provisions in the Biosecurity Act 2015 May 2021 to February 2022. Were this to take place it would also have the effect that any such instruments would in future require the inclusion of a statement of compatibility with human rights as per Human Rights (Parliamentary Scrutiny) Act 2011 subsection 9(1).
¹⁷² See for example Law Council of Australia submission to the Select Committee on COVID-19 Submission 422 June 2020 p. 41.

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

* This paper was presented as part of the Senate Lecture Series on 30 April 2021. Part of this paper has previously been published: Sarah Moulds, ‘From disruption to deliberation: improving the quality and impact of community engagement with parliamentary law making’, Public Law Review, vol. 31, no. 3, 2020, p. 264.
¹ Terry Flew, ‘Digital communication, the crisis of trust, and the post-global’, Communication Research and Practice, vol. 5, issue 1, 2019, pp. 4–22. See also Miguel Goede, The future of democracy: the end of democracy as we know it’, Kybernetes, vol. 48, no. 10, 2019, pp. 2237–2265.
² See for example, Luca Verzichelli, ‘Back to a responsible responsiveness? The crisis and challenges facing European political elites: the 2017 Peter Mair Lecture’, Irish Political Studies, vol. 35, issue 1, 2020, pp. 1–17.
³ See for example Luciano Bardi, Stefano Bartolini and Alexander Trechsel, ‘Responsive and responsible? The role of parties in twenty-first century politics’, West European Politics, vol. 37, issue 2, 2014, p. 244.
⁴ See for example Chris Reidy and Jenny Kent, Systemic Impacts of Mini-publics, (report prepared for the New Democracy Foundation), University of Technology Sydney, 2017; Daniel Stockemer, and Bilel Kchouk, ‘Inclusive parliaments: a trigger for higher electoral integrity?’, The Journal of Legislative Studies, vol. 23, issue 3, 2017, pp. 419–438; Torsten Geelan, Hernado González and Peter Walsh, From Financial Crisis to Social Change Towards Alternative Horizons, Springer International, 2018; Helen Marshall, Claudia Proeve, Joanne Collins, Rebecca Tooher, Maree O’Keefe, Teresa Burgess, S Rachel Skinner, Maureen Watson, Heather Ashmeade and Annette Braunack-Mayer, ‘Eliciting youth and adult recommendations through citizens’ juries to improve school based adolescent immunisation programs’, Vaccine, vol. 32, issue 21, 2014, pp. 2434–2440; Nicole Moretto, Elizabeth Kendall, Jennifer Whitty, Joshua Byrnes, Andrew P. Hills, Louisa Gordon, Erika Turkstra Paul Scuffham and Tracy Comans, ‘Yes, The Government Should Tax Soft Drinks: Findings from a Citizens’ Jury in Australia’ International Journal of Environmental Research and Public Health, vol. 11, issue 3, 2014, pp. 2456–2471.
⁵ Andrew Edgar, ‘Law-making in a crisis: Commonwealth and NSW coronavirus regulations’, Australian Public Law, 30 March 2020.
⁶ Sarah Moulds, ‘Scrutinising COVID-19 laws: An early glimpse into the scrutiny work of federal parliamentary committees’, Alternative Law Journal, vol. 45, issue 3, 2020, pp. 180–187; Ronan Cormacain, ‘Keeping Covid-19 emergency legislation socially distant from ordinary legislation: principles for the structure of emergency legislation’, Theory and Practice of Legislation, vol. 8, issue 3, 2020, pp. 1–21.
⁷ Ronan Cormacain, ‘Keeping Covid-19 emergency legislation socially distant from ordinary legislation: principles for the structure of emergency legislation’, Theory and Practice of Legislation, vol. 8, issue 3, 2020, pp. 1–21; Oren Gross, ‘Emergency Powers in the Time of Coronavirus … and Beyond’, Just Security, 8 May 2020, (accessed 1 June 2023).
⁸ Anne Twomey, ‘A virtual Australian parliament is possible – and may be needed – during the coronavirus pandemic’, The Conversation, 25 March 2020; Alice Lilly, ‘The UK parliament and coronavirus’, Institute for Government, 3 April 2020; Charlie Dreaver, ‘Special committee set-up as Parliament is adjourned’, Radio New Zealand, 24 March 2020.
⁹ See for example Sarah Moulds, ‘From disruption to deliberation: improving the quality and impact of community engagement with parliamentary law-making’, Public Law Review, vol. 31, no. 3, 2020, p. 264; Sarah Moulds, ‘Keeping watch on COVID-19 laws: are parliamentary committees up to the job?’, Australian Public Law,1 May 2020.
¹⁰ See for example Kate Barton, Community Participation in Parliamentary Committees: Opportunities and Barriers, Parliamentary Library, 1999; Ian Marsh, ‘Australia’s Representation Gap: A Role for Parliamentary Committees?’, Papers on Parliament, No. 44, Department of the Senate, 2006, p. 5; Paul Lobban, ‘Who cares wins: Parliamentary committees and the executive’, Australasian Parliamentary Review, vol. 27, issue 1, 2012, p. 190.
¹¹ See for example Laura Grenfell, ‘An Australian Spectrum of Political Rights Scrutiny: “Continuing to Lead by Example?”', Public Law Review, vol. 26, no. 1, 2015, pp. 19–38; Laura Grenfell and Sarah Moulds, ‘The role of committees in rights protection in federal and state parliaments in Australia’, University of New South Wales Law Journal, vol. 41, no. 1, 2018, p. 40.
¹² Sarah Moulds, Committees of Influence: Parliamentary Rights Scrutiny and Counter-Terrorism Lawmaking in Australia, Springer Verlag, Singapore, 2020, chapters 1 and 10.
¹³ The Parliamentary Joint Committee on Human Rights (PJCHR) is established by the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). The functions of the PJCHR are set out in s 7 of the Act which includes examining legislation for compatibility with human rights. Human rights are defined in s 3 of the Act to mean the human rights and freedoms contained in 7 core human rights treaties to which Australia is a party.
¹⁴ The Senate Legal and Constitutional Affairs References Committee is established by Senate standing order 25. The committee has an opposition senator as Chair and a majority of non-government members. The current membership of the Committee can be seen here.
¹⁵ Under this model, judicial contribution to the conversation on rights is restricted and, provided it stays within its constitutional limits, parliament is the branch of government with the ‘final say’ on how to protect and promote individual rights. See for example George Williams and Lisa Burton, ‘Australia’s Parliamentary Scrutiny Act: An Exclusive Parliamentary Model of Rights Protection’ in Murray Hunt, Hayley Hooper and Paul Yowell (eds), Parliaments and Human Rights: Redressing the Democratic Deficit, Hart Publishing, 2015, p. 258.
¹⁶ For examples of the rights-enhancing effect of parliamentary committees see Laura Grenfell and Sarah Moulds, ‘The role of committees in rights protection in federal and state parliaments in Australia’, University of New South Wales Law Journal, vol. 41, no. 1, 2018, p. 40; Sarah Moulds 'Committees of Influence: Parliamentary Committees with the capacity to change Australia’s counter-terrorism laws', Australasian Parliamentary Review, vol. 31, 2016.
¹⁷ See for example Senate Legal and Constitutional Affairs Legislation Committee, Marriage Equality Amendment Bill 2009, November 2009.
¹⁸ The issue of delayed reporting (and in particularly the problem of tabling reports after the second reading debate on the particular bill has ended) has been a particular concern raised with respect to the PJCHR. For further discussion of how this issue may impact on the overall effectiveness of the PJCHR see Adam Fletcher, ‘Human Rights Scrutiny in the Federal Parliament: Smokescreen or Democratic Solution?’ and David Reynolds and George Williams, ‘Evaluating the Impact of Australia’s Federal Human Rights Scrutiny Regime’ in Laura Grenfell and Julie Debeljak (eds), Law Making and Human Rights, Thompson Reuters, Pyrmont, 2020.
¹⁹ Meg Russell and Meghan Benton, ‘Assessing the Policy Impact of Parliament: Methodological Challenges and Possible Future Approaches’, (paper presented at the Public Service Association Legislative Studies Specialist Group Conference, London, United Kingdom, 24 June 2009), cited in Aileen Kavanagh, ‘The Joint Committee on Human Rights: A Hybrid Breed of Constitutional Watchdog’ in Murray Hunt, Hayley Hooper and Paul Yowell (eds), Parliaments and Human Rights: Redressing the Democratic Deficit, Hart Publishing, 2015, p. 111 and 131; Michael C Tolley, ‘Parliamentary Scrutiny of Rights in the United Kingdom: Assessing the Work of the Joint Committee on Human Rights’, Australian Journal of Political Science, vol. 44, issue 2, 2009, p. 41; Carolyn Evans and Simon Evans, ‘Legislative Scrutiny Committees and Parliamentary Conceptions of Human Rights’, Public Law, 2006, p. 785; Jennifer Smookler, ‘Making a Difference? The Effectiveness of Pre-Legislative Scrutiny’, Parliamentary Affairs, vol. 59, issue 3, 2006, p. 522. See also George Williams and Daniel Reynolds, ‘The Operation and Impact of Australia’s Parliamentary Scrutiny Regime for Human Rights’, Monash University Law Review, vol. 41, issue 2, 2015, p. 469.
²⁰ See for example Aileen Kavanagh, ‘The Joint Committee on Human Rights: A Hybrid Breed of Constitutional Watchdog’ in Murray Hunt, Hayley Hooper and Paul Yowell (eds), Parliaments and Human Rights: Redressing the Democratic Deficit, Hart Publishing, 2015, p. 111; in Gareth Griffith, Parliament and Accountability: The Role of Parliamentary Oversight Committees, Briefing Paper No. 12/05, NSW Parliamentary Library Research Service, 2005; John Halligan, ‘Parliamentary committee roles in facilitating public policy at the Commonwealth level’, Australasian Parliamentary Review, vol. 23, issue 2, 2008, p. 135; Michael C Tolley, ‘Parliamentary Scrutiny of Rights in the United Kingdom: Assessing the Work of the Joint Committee on Human Rights’, Australian Journal of Political Science, vol. 44, issue 2, 2009, p. 41.
²¹ For example, the key participants in the Australian parliamentary committee system include parliamentarians, elected members of the executive government, submission makers and witnesses to parliamentary committee inquiries, public servants and government officers, independent oversight bodies and the media.
²² A wealth of literature exists on the topic of political legitimacy and the meaning attributed to this term has been contested and developed over time. See for example David Beetham, The Legitimation of Power, Palgrave, 2002; Allan Buchanan, ‘Political Legitimacy and Democracy’, Ethics, vol. 112, No. 4, 2022, p. 689; Immanuel Kant, Practical Philosophy, ed Mary J Gregor, Cambridge University Press, 1999; Jack Knight and James Johnson, ‘Aggregation and Deliberation: On the Possibility of Democratic Legitimacy’, Political Theory, vol. 22, no. 2, 1994, p. 277; Bernard Manin, ‘On Legitimacy and Political Deliberation’, Political Theory, vol. 15, no.3, 1987, p. 338.
²³ Philippa Webb and Kirsten Roberts, ‘Effective Parliamentary Oversight of Human Rights: A Framework for Designing and Determining Effectiveness’, King’s College London, July 2014.
²⁴ Collecting evidence of the hidden impact of parliamentary committees can be challenging due to the need to look beyond documentary sources and consider more subjective material including interviews but, as Evans and Evans and Benton and Russell have shown in their empirical-based work it is not impossible. In Australia at least, much publicly available material exists that points to the hidden impacts of scrutiny, including training manuals, published guidelines, information in annual reports, and submissions and oral evidence given at parliamentary and other public inquiries and hearings. This material can then be tested against a range of targeted individual interviews conducted with key participants in the scrutiny process. Meg Russell and Meghan Benton, ‘Assessing the Policy Impact of Parliament: Methodological Challenges and Possible Future Approaches’ (paper presented at the Public Service Association Legislative Studies Specialist Group Conference, London, United Kingdom, 24 June 2009); See for example Carolyn Evans and Simon Evans, ‘Evaluating the Human Rights Performance of Legislatures’, Human Rights Law Review, vol. 6, issue 3, 2006, p. 546.
²⁵ The 14 case study Acts considered are the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth); Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth); Counter-Terrorism Legislation Amendment Act (No 1) 2014 (Cth); Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth); National Security Legislation Amendment Act 2010 (Cth); Independent National Security Legislation Monitor Act 2010 (Cth); Anti-Terrorism Act (No 2) 2005 (Cth); National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth); Anti-terrorism Act 2004 (Cth); Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth); Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth); Security Legislation Amendment (Terrorism) Act 2002 (Cth) (and related Acts); Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (Cth); Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth). One of the case study ‘Acts’, the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth), is more correctly described as a ‘bill’ as it was not enacted into legislation.
²⁶ For a comprehensive overview of the legislative history of the marriage equality reforms see Shirleene Robinson and Alex Greenwich, Yes Yes Yes: Australia’s Journey to Marriage Equality, NewSouth Books, 2018; Deirdre McKeown, ‘A chronology of same-sex marriage bills introduced into the federal parliament: a quick guide’, Research paper series, 2016–17, Parliamentary Library, Canberra, updated February 2018.
²⁷ Sarah Moulds, ‘Keeping watch on COVID-19 laws: are parliamentary committees up to the job?’, Australian Public Law,
1 May 2020.
²⁸ This article focuses on the work of a pair of committees, the Senate Legal and Constitutional Affairs Legislation Committee (the LCA Legislation committee) and the Senate Legal and Constitutional Affairs References Committee (the LCA References committee), as well as the Parliamentary Joint Committee on Intelligence and Security (the Intelligence committee) and House Standing Committee on Social Policy and Legal Affairs (the House committee). These inquiry-based committees work closely with the scrutiny-based committees in the federal system, which include the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills committee) and the PJCHR. The work of these scrutiny committees is also relevant to the findings in this article, and to the more detailed research. See Sarah Moulds, ‘The Rights Protecting Role of Parliamentary Committees: The Case of Australia’s Counter-Terrorism Laws’, PhD Thesis, University of Adelaide, 2018.
²⁹ This finding is consistent with the discussion in Kelly Paxman, ‘Referral of Bills to Senate Committees: An Evaluation’, Papers on Parliament, No. 31, Department of the Senate, June 1998, p. 76.
³⁰ Harry Evans (ed), Odgers’ Australian Senate Procedure, 10th edition, Department of the Senate, 2001, p. 366; see also Anthony Marinac, ‘The Usual Suspects? “Civil society” and Senate Committees’, Papers on Parliament, No. 42, Department of the Senate, December 2004; See also Pauline Painter ‘New kids on the block or the usual suspects? Is public engagement with committees changing or is participation in committee inquiries still dominated by a handful of organisations and academics?’, Australasian Parliamentary Review, vol. 31, issue 2, 2016, pp. 67–83.
³¹ Dominique Dalla-Pozza, ‘Refining the Australian counter-terrorism framework: how deliberative has Parliament been?’, Public Law Review, vol. 27, issue 4, 2016, p. 271 and 273.
³² The House Standing Committee on Social Policy and Legal Affairs is established by House of Representatives standing order 215 and 229. The committee has a government Chair and a majority of government members. The current membership of the committee can be seen here.
³³ See Senate standing order 25; House of Representatives, standing order 215 and 229.
³⁴ Senate Legal and Constitutional Affairs Legislation Committee, Security Legislation Amendment (Terrorism) Bill 2002 (No 2) and Related Bills, May 2002. In this inquiry, the committee received 431 submissions and heard from 65 witnesses. See also Senate Legal and Constitutional Affairs References Committee, Australian Security and Intelligence Organisation Amendment (Terrorism) Bill 2002 and Related Matters, December 2002. In this inquiry the committee received 435 submissions and heard from 22 organisations.
³⁵ Like the LCA Legislation committee, the House committee has a government Chair and majority of government members. It also has broad powers to conduct public hearings into proposed legislation or other thematic issues referred to it by the House of Representatives and can include ‘participating members’ who can participate in proceedings without having a formal vote.
³⁶ The Marriage Equality Amendment Bill 2012 (Cth) was introduced into the House of Representatives by Adam Bandt MP and Mr Andrew Wilkie MP. The Marriage Amendment Bill 2012 (Cth) was introduced into the House of Representatives by Stephen Jones MP on 13 February 2012. Both of these bills sought to amend the Marriage Act 1961 (Cth) to remove reference to 'man and woman' and permit same sex couples to marry. The Marriage Amendment Bill 2012 (Cth) also included proposed provisions that would have the effect of ensuring that authorised celebrants and ministers of religion are not required to solemnise a marriage where the parties to the marriage are of the same sex). Both bills were referred to the House Standing Committee on Social Policy and Legal Affairs, which delivered its report on 18 June 2012. See House Standing Committee on Social Policy and Legal Affairs, Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012, June 2012.
³⁷ See House Standing Committee on Social Policy and Legal Affairs, Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012, June 2012, p. 1 and pp. 33–37.
³⁸ House Standing Committee on Social Policy and Legal Affairs, Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012, June 2012, p. 34.
³⁹ Kelly Paxman, ‘Referral of Bills to Senate Committees: An Evaluation’, Papers on Parliament, No. 31, Department of the Senate, June 1998, p. 81.
⁴⁰ Intelligence Services Act 2001 (Cth) pt 4, s 28(2). The Intelligence committee has some particular attributes that set it apart from the other committees considered and relate to its specialist intelligence and national security functions. For example, it has a statutory framework, it’s government-majority membership is tightly controlled and generally limited to the 2 major political parties, and it has access to information, expert briefings and powers that are generally broader in scope than other committees established for other purposes. See Intelligence Services Act 2001 (Cth) pt 4. See also Sarah Moulds 'Forum of choice? The legislative impact of the Parliamentary Joint Committee of Intelligence and Security', Public Law Review, vol. 29, no. 4, 2018, p. 41.
⁴¹ For further discussion of the role and impact of the Parliamentary Joint Committee of Intelligence and Security see Sarah Moulds 'Forum of choice? The legislative impact of the Parliamentary Joint Committee of Intelligence and Security', Public Law Review, vol. 29, no. 4, 2018, p. 41.
⁴² Sarah Moulds, ‘The Rights Protecting Role of Parliamentary Committees: The Case of Australia’s Counter-Terrorism Laws’, PhD Thesis, University of Adelaide, 2018, chapter 5 and Table 5.1.
⁴³ Supplementary Explanatory Memorandum, Security Legislation Amendment (Terrorism) Bill 2002 [No 2] (Cth), items 5 and 8; in response to Senate Legal and Constitutional Affairs Legislation Committee, Security Legislation Amendment (Terrorism) Bill 2002 [No 2] and Related Bills, May 2002, p. vii.
⁴⁴ Supplementary Explanatory Memorandum, Security Legislation Amendment (Terrorism) Bill 2002 [No 2] (Cth), items 11, 13, 14; in response to Senate Legal and Constitutional Affairs Legislation Committee, Security Legislation Amendment (Terrorism) Bill 2002 [No 2] and Related Bills, May 2002, p. vii.
⁴⁵ Supplementary Explanatory Memorandum, Security Legislation Amendment (Terrorism) Bill 2002 [No 2] (Cth), item 4, in response to Senate Legal and Constitutional Affairs Legislation Committee, Security Legislation Amendment (Terrorism) Bill 2002 [No 2] and Related Bills, May 2002, p. vii.
⁴⁶ See for example Supplementary Explanatory Memorandum, Security Legislation Amendment (Terrorism) Bill 2002 [No 2] (Cth). See also Senate Legal and Constitutional Affairs Legislation Committee, Security Legislation Amendment (Terrorism) Bill 2002 [No 2] and Related Bills, May 2002.
⁴⁷ Supplementary Explanatory Memorandum, Security Legislation Amendment (Terrorism) Bill 2002 [No 2] (Cth). See also Senate Legal and Constitutional Affairs Legislation Committee, Security Legislation Amendment (Terrorism) Bill 2002 [No 2] and Related Bills, May 2002. See also Supplementary Explanatory Memorandum, Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth).
⁴⁸ See Supplementary Explanatory Memorandum, Australian Security Intelligence Organisation Amendment (Terrorism) Bill 2002 (Cth) and Parliamentary Joint Committee on ASIO, ASIS and DSD, An Advisory Report on the Australian Security Intelligence Organisation Amendment (Terrorism) Bill 2002, June 2002, pp. viii–ix. See also Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2003 (Cth).
⁴⁹ See for example Supplementary Explanatory Memorandum, Anti-Terrorism Bill 2004 (Cth) items 4, 5, 6, 7 and 8 which implement Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the provisions of the Anti-Terrorism Bill 2004, May 2004, p. ix.
⁵⁰ Supplementary Explanatory Memorandum, National Security Information (Criminal Proceedings) Bill 2004 (Cth), p. 1; Senate Legal and Constitutional Affairs Legislation Committee, Provisions of the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004, August 2004.
⁵¹ See Supplementary Explanatory Memorandum, Anti-Terrorism Bill (No. 2) 2005 and Senate Legal and Constitutional Affairs Legislation Committee, Provisions of the Anti-Terrorism Bill (No 2) 2005, November 2005.
⁵² See Supplementary Explanatory Memorandum, Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth) amended clause 33AA(1); see also Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth), and Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, September 2015.
⁵³ As discussed below, this orthodox view suggests that within Westminster systems, parliamentary committees, and in particular government-dominated committees, will be seriously compromised as a form of rights protection, especially when scrutinising laws that affect electorally unpopular groups, such as bikies and terrorists. See e.g. Janet Hiebert, ‘Governing Like Judges’ in Tom Campbell, K.D Ewing and Adam Tomkins (eds), The Legal Protection of Human Rights: Sceptical Essays, Oxford University Press, 2011, p. 40 and 63; Janet Hiebert, ‘Legislative Rights Review: Addressing the Gap Between Ideals and Constraints’ in Murray Hunt, Hayley Cooper and Paul Yowell (eds), Parliaments and Human Rights: Redressing the Democratic Deficit, Hart Publishing, 2015, p. 39 and 52.
⁵⁴ Sarah Moulds, ‘The Rights Protecting Role of Parliamentary Committees: The Case of Australia’s Counter-Terrorism Laws’, PhD Thesis, University of Adelaide, 2018, chapter 5 and Table 5.1.
⁵⁵ Sarah Moulds, ‘The Rights Protecting Role of Parliamentary Committees: The Case of Australia’s Counter-Terrorism Laws’, PhD Thesis, University of Adelaide, 2018, chapter 5 and Table 5.1.
⁵⁶ This is evident in both the early cases of the Anti-Terrorism Bill (No 2) 2005 (Cth) (Control Order Bill) and Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth) (ASIO Bill), which were considered by the Senate Standing Committee for the Scrutiny of Bills, Parliamentary Joint Committee on ASIO and the Senate Legal and Constitutional Affairs committees, and in the post-2013 bills which were considered by the Parliamentary Joint Committee on Intelligence and Security, Senate Standing Committee for the Scrutiny of Bills, and the PJCHR. See also Sarah Moulds 'Committees of Influence: Parliamentary Committees with the capacity to change Australia’s counter-terrorism laws', Australasian Parliamentary Review, vol. 31, 2016.
⁵⁷ John Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament, Cambridge University Press, 1998, p. 25; Dominique Dalla-Pozza, ‘Refining the Australian Counter-terrorism Framework: How Deliberative Has Parliament Been?’, Public Law Review, vol. 27, issue. 4, 2016, p. 271 and 274.
⁵⁸ For example, almost immediately after the enactment of Marriage Amendment Bill 2004, legislative efforts began to reverse or modify the changes to the definition of marriage, usually advanced in the form of Private Members’ or Private Senators’ bills. These bills attracted the support of many of the sophisticated submission-makers to the 2004 LCA Legislation committee inquiry. These sophisticated submission-makers include legal groups (such as the Castan Centre for Human Rights Law), human rights groups (such as Liberty Victoria) and religious groups (such as the Australian Christian Lobby), all of which have access to powerful and influential members and allies, as well as experience engaging with the media and implementing advocacy campaigns. For example, those submission-makers were quoted extensively in the Senate Legal and Constitutional Affairs Legislation Committee report into the Marriage Equality Amendment Bill 2009, chapters 3 and 4, which include: Dr Paula Gerber from the Castan Centre for Human Rights Law; Mr Gardiner, Vice President of Liberty Victoria; Law Council of Australia; Australian Coalition for Equality; Catholic Dioceses of Sydney and Melbourne; Australian Christian Lobby and Family Voice Australia.
⁵⁹ Senate Legal and Constitutional Affairs Legislation Committee, Marriage Equality Amendment Bill 2010, June 2012. The bill was referred to committee on 8 February 2012. The committee issued its report on 25 June 2012.
⁶⁰ Senate Legal and Constitutional Affairs Legislation Committee, Marriage Equality Amendment Bill 2010, June 2012, p. 7. The committee received approximately 75,100 submissions by midnight on 2 April 2012 (the closing date for submissions): of these 43,800 supported the bill and 31,300 opposed it. The committee received an additional 4,100 submissions, of which 2,600 supported the bill and 1,500 opposed it. This amounts to 79,200 submissions in total: 46,400, or approximately 59%, supporting Senator Hanson-Young's bill; and 32,800, or approximately 41%, opposing it.
⁶¹ Senate Legal and Constitutional Affairs Legislation Committee, Marriage Equality Amendment Bill 2010, June 2012, p. 51.
⁶² A list of witnesses who appeared at the hearings is at Senate Legal and Constitutional Affairs Legislation Committee, Marriage Equality Amendment Bill 2010, appendix 3, and copies of the Hansard transcripts are available through the committee's website.
⁶³ For example, Mr Justin Koonin from the NSW Gay and Lesbian Rights Lobby, Mr Malcolm McPherson from Australian Marriage Equality and Mrs Shelley Argent OAM, representing Parents and Friends of Lesbians and Gays, as quoted in Senate Legal and Constitutional Affairs Legislation Committee, Marriage Equality Amendment Bill 2010, June 2012, pp. 11–12.
⁶⁴ For example, Australian Christian Lobby, Rabbinical Council of Victoria, Episcopal Assembly of Oceania, and Presbyterian Church of Queensland as quoted in Senate Legal and Constitutional Affairs Legislation Committee, Marriage Equality Amendment Bill 2010, June 2012, pp. 27–28.
⁶⁵ See for example Australian Associated Press, 'MP stands with son on same-sex marriage', 9News, 10 October 2016; Sarah Whyte, 'Footballer's 10-minute challenge to change MPs' views on same-sex marriage', The Sydney Morning Herald, 22 July 2015; Dan Harrison, 'Parents of gays make TV pitch to Abbott on same-sex marriage vote', The Sydney Morning Herald,
30 January 2012; Nina Lord, 'In rainbow families, the kids are all right', The Age, 28 September 2017.
⁶⁶ At that time, marriage equality was recognised in the Netherlands, Belgium, Canada, Spain, South Africa, Norway, Sweden, Portugal, Iceland and Argentina, as well as several states in the United States and Mexico City. Legalisation to enable marriage equality was also under consideration in Denmark, the United Kingdom, Ireland, Brazil, Mexico, Colombia, Finland, Nepal, Slovenia, France, and Paraguay. See Senate Legal and Constitutional Affairs Legislation Committee, Marriage Equality Amendment Bill 2010, June 2012, p. 26
⁶⁷ Senate Legal and Constitutional Affairs Legislation Committee, Marriage Equality Amendment Bill 2010, June 2012, p. 37.
⁶⁸ Sarah Moulds, ‘Scrutinising COVID-19 laws: An early glimpse into the scrutiny work of federal parliamentary committees’, Alternative Law Journal, vol. 45, issue 3, 2020, pp. 180–187.
⁶⁹ The Senate Select Committee on COVID-19 released its first interim report in December 2020 and its second interim report in February 2021.
⁷⁰ For further discussion see Sarah Moulds, ‘Scrutinising COVID-19 laws: An early glimpse into the scrutiny work of federal parliamentary committees’, Alternative Law Journal, vol. 45, issue 3, 2020, pp. 180–187.
⁷¹ Senate Select Committee on COVID-19, Final Report, April 2022.
⁷² These issues formed part of the Senate Select Committee’s public inquiry hearings in April and May 2020, which drew from the analysis contained in the following 2 reports from the PJCHR (Report 5 of 2020: Human rights scrutiny of COVID-19 legislation; Report 6 of 2020 (see Chapter 1)).
⁷³ For example, on its webpage, the Senate Standing Committee on Delegated Legislation has sought to list all delegated legislation registered on the Federal Register of Legislation on or before 20 May 2020 relating to COVID-19. In April 2021, this list had some 148 legislative instruments.
⁷⁴ For example, legislative instruments made under s 475 of the Biosecurity Act 2015 (Cth) (‘the Act’) trigger sweeping powers (some powers are referred to as ‘special emergency powers’) for the Health Minister to determine any requirements necessary to prevent or control the ‘emergence, establishment or spread’ of COVID-19 within, or in a part of, Australian territory, or to another country. These powers have included: a ban on overseas travel; restrictions on retail trade at airports; the COVIDSafeApp; and restrictions placed on remote communities populated by Aboriginal and Torres Strait Islander communities.
⁷⁵ Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest (No 5 of 2020), April 2020, p. 13. The Scrutiny of Bills committee also sought advice as to why ‘it is necessary and appropriate to provide the minister with broad discretionary powers to alter or extend the operation of supplement payments in the Social Security Act 1991’ (at p. 15) and queried ‘what criteria ministers will consider before determining whether it is appropriate to defer the sunsetting of Acts and legislative instruments’ (at p. 16).
⁷⁶ As part of this research, I interviewed public servants who were directly responsible for developing or drafting the case study bills, including those from the Attorney-General’s Department, the then Department of Immigration and Border Protection (DIBP), Australian Federal Police and Office of Parliamentary Counsel. I also conducted interviews with current and past parliamentarians and parliamentary staff. Although not statistically representative, these interviews provide a useful insight into the role parliamentary committees play in the development of proposed laws from the perspective of a broad range of players in the legislative development and drafting process. Sarah Moulds, ‘The Rights Protecting Role of Parliamentary Committees: The Case of Australia’s Counter-Terrorism Laws’, PhD Thesis, University of Adelaide, 2018, Appendix A.
⁷⁷ The political party room also plays a central role in this behind-the-scenes law-making process but remains ‘off-limits’ to almost all researchers, due to its highly politically charged and confidential nature. This work focuses particularly on the role of public servants, parliamentary counsel and parliamentary committee staff and gathers evidence and insights from interviews with these key players in the process.
⁷⁸ These scrutiny-based committees are required to review every single bill (and in the case of the PJCHR, all legislative instruments) for compliance with a range of scrutiny criteria, including criteria that relates to individual rights and liberties. The PJCHR is established by the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) The scrutiny criteria applied by the PJCHR is outlined in s 3 of the Act and includes the human rights and freedoms contained in 7 core human rights treaties to which Australia is a party. The Senate Standing Committee for the Scrutiny of Delegated Legislation is also a scrutiny-based committee, with a mandate to scrutinise delegated legislation.
⁷⁹ Sarah Moulds, Committees of Influence: Parliamentary Rights Scrutiny and Counter-Terrorism Lawmaking in Australia, Springer Verlag, Singapore, 2020.
⁸⁰ Dominique Dalla-Pozza, ‘The Conscience of Democracy? The Role of Australian Parliamentary Committees in Enacting Counter-Terrorism Laws’ (paper presented at the Australasian Law and Society Conference, 2006).
⁸¹ Ian Holland, ‘Senate Committees and the Legislative Process’, Parliamentary Studies Paper 7, Crawford School of Economics and Government, Australian National University, Canberra, 2009; Bryan Horrigan, ‘Reforming Rights-Based Scrutiny and Interpretation of Legislation’, Alternative Law Journal, vol. 37, issue 4, 2012, pp. 228–232.
⁸² Sarah Moulds, ‘Forum of choice? The legislative impact of the Parliamentary Joint Committee of Intelligence and Security’, Public Law Review, vol. 29, issue 4, 2018, pp. 287–321.
⁸³ David Kinley, Christine Ernst, ‘Exile on Main Street: Australia’s Legislative Agenda for Human Rights’, European Human Rights Law Review, issue 1, 2012, pp. 58–70.
⁸⁴ Laura Grenfell, ‘An Australian Spectrum of Political Rights Scrutiny: Continuing to Lead by Example?’, Public Law Review,
vol. 26, issue 1, 2015, pp. 19–32.
⁸⁵ Dominique Dalla-Pozza, ‘Refining the Australian Counter-terrorism Framework: How Deliberative Has Parliament Been?’ (2016) 27(4) Public Law Review 271, p. 273.
⁸⁶ Sarah Moulds, ‘The Rights Protecting Role of Parliamentary Committees: The Case of Australia’s Counter-Terrorism Laws’, PhD Thesis, University of Adelaide, 2018.
⁸⁷ For example Joshua Forkert, ‘Parliamentary Committees: Improving public engagement’ (paper presented at the Australasian Study of Parliament Group, 27–30 September 2017, Hobart); Carolyn Hendriks and Adrian Kay, ‘From ‘Opening Up’ to Democratic Renewal: Deepening Public Engagement in Legislative Committees’, Government and Opposition, vol. 54, issue 1, 2019, pp. 7–8 and 20–21; Beverly Duffy and Madeleine Foley, ‘Social media, community engagement and perceptions of parliament: a case study from the NSW Legislative Council’, Australasian Parliamentary Review, vol. 26, issue 1, 2011, p. 198, John Baczynski, ‘Opportunities for Greater Consultation? House Committees use of information and communication technologies’, Parliamentary Studies Paper 8, Crawford School of Economics and Government, ANU, Canberra, 2009; House of Representatives Standing Committee on Procedure, Building a modern committee system: An inquiry into the effectiveness of the House committee system, June 2010; Dr Phil Larkin, Lecturer, Public Policy, University of Canberra, Standing Committee on Procedure Hansard, 22 October 2009; Mr Christopher Pyne MP, Shadow Minister for Education, Apprenticeships and Training, ‘Agreement for a Better Parliament’, 7 September 2010, p. 6. See also John Halligan, ‘Parliamentary Committee Roles in Facilitating Public Policy at the Commonwealth Level’, Australasian Parliamentary Review, vol. 23, issue 2, 2008, pp. 135 and 153.
⁸⁸ James Fishkin, When the People Speak: Deliberative Democracy and Public Consultation, Oxford University Press, 2009, p. 39.
⁸⁹ Ron Levy and Grahame Orr, The Law of Deliberative Democracy, Routledge, 2016, pp. 76–80.
⁹⁰ Ron Levy and Grahame Orr, The Law of Deliberative Democracy, Routledge, 2016, p. 80 and 197. While Orr and Levy’s work focuses on what they call ‘second order’ issues in deliberative democracy, such as the role the judiciary and lawyers play in the design and operation of the electoral system, their analysis of how deliberative democratic values can improve the quality of public decision-making holds lessons for the work of parliamentary committees (see pp. 197–200).
⁹¹ Ron Levy and Grahame Orr, The Law of Deliberative Democracy, Routledge, 2016, pp. 76–80. For an example of this type of exchange of views, see Senate Legal and Constitutional Affairs Legislation Committee, Marriage Equality Amendment Bill 2009, November 2009, p. 41.
⁹² House Standing Committee on Social Policy and Legal Affairs, Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012, June 2012, p. 49. However, the committee offered some minor textual amendments suggested by the evidence taken during the course of the inquiry, for example by recommending that the Bandt bill be amended to ‘ensure equal access to marriage for all couples who have a mutual commitment to a shared life’ (see p. 49).
⁹³ This aligns with what Fishkin, Levy and Orr consider to be vital features of deliberative decision making. Ron Levy and Grahame Orr, The Law of Deliberative Democracy, Routledge, 2016, p. 4 and pp. 22–23; James Fishkin, When the People Speak: Deliberative Democracy and Public Consultation, Oxford University Press, 2009, p. 39.
⁹⁴ Paul Kidrea, 'Constitutional and Regulatory Dimensions of Plebiscites in Australia', 27 Public Law Review 290, pp. 292–293.
⁹⁵ As Kidrea explores, when handled with care, these types of direct democracy mechanisms can ‘confer legitimacy' on a government's plans to 'overcome a longstanding parliamentary stalemate'. Paul Kidrea. 'Constitutional and Regulatory Dimensions of Plebiscites in Australia', Public Law Review, vol. 27, 2017, p. 290 and 292. See also Stephen Tierney, Constitutional Referendums: The Theory and Practice of Republican Deliberation, Oxford University Press, 2012.
⁹⁶ Lynn A Baker, 'Preferences, Priorities and Plebiscites', 13 Journal of Contemporary Legal Issues, vol. 317, 2004, p. 318.
⁹⁷ IPEN (International Parliament Engagement Network) was created in 2020 to bring together academics, parliamentary officials and third sector representatives from all over the world, who work on public engagement and parliament. We currently have 219 members from over 30 countries. IPEN aims to share good practice, identify key challenges and ways to address these, promote the exchange of information between practitioners and academics and lead to the enhancement of practices.
⁹⁸ See for example Carolyn Hendriks, ANU; Gabrielle Appleby and Megan Davis, UNSW; Mark Evans, Democracy 2025 Project; Jo Fleer, Parliamentary Officer, House of Assembly, Parliament of South Australia; Dr Emma Banyer, Principal Research Officer, Australian Senate; Andres Lomp, Community Engagement Manager, Parliament of Victoria; Laura Sweeney, Assistant Director, Research, Australian Senate; and Lauren Monaghan, Senior Council Officer, Digital Engagement, Parliament of New South Wales.

The Senate's new role in protecting our democracy

*This paper was presented as part of the Senate Lecture Series on 25 February 2022.
¹ The Australia Institute, Polling: majority want greater Senate scrutiny of secret contracts, 5 March 2022.
² For full details and results, see Bill Browne and Ben Oquist, Representative, still: the role of the Senate in our democracy, March 2021.
³ The Australia Institute, Polling: majority want greater Senate scrutiny of secret contracts, 5 March 2022.
⁴ Bill Browne and Ben Oquist, Representative, still: the role of the Senate in our democracy, 9 March 2021.
⁵ David Hamer, Can responsible government survive in Australia?, 2nd edition, Department of the Senate, Canberra, 2004, p. 301.
⁶ Australian Constitution s 49.
⁷ David Hamer, Can responsible government survive in Australia?, 2nd edition, Department of the Senate, Canberra, 2004, p. 368.
⁸ Stanley Bach, Platypus and parliament: the Australian Senate in theory and practice, Department of the Senate, Canberra, 2003, p. i.
⁹ See, for example, Official Record of the Debates of the Australasian Federal Convention (Andrew Inglis Clark), 11 March 1891, Acting Government Printer, 1891.
¹⁰ Justin Harding, ‘Ideology or expediency? The abolition of the Queensland Legislative Council 1915-22’, Labour History, no. 79, November 2000, pp. 162–178.
¹¹ Queensland Parliament, Abolition of the Legislative Council, March 2022 (accessed 19 May 2023).
¹² Apn Newsdesk, ‘Campbell Newman dismisses Wellington’s call for upper house’, The Courier Mail, 25 November 2013; Cameron Atfield, ‘Minor parties unite in calls for Queensland upper house’, Brisbane Times, 13 December 2015; Amy Remeikis, ‘Queensland needs an upper house: independent MPs’, Brisbane Times, 23 November 2013.
¹³ ‘CSG group banned from Qld parliament’, SBS News, 8 October 2014.
¹⁴ ‘Queensland election 2015: northern politics prove the value of upper houses’, The Canberra Times, 23 April 2018.
¹⁵ Melanie Whiting, ‘Qld Premier Annastacia Palaszczuk rejects call for referendum on Qld upper house’, Daily Mercury, 13 June 2021.
¹⁶ Morgan Begg and Daniel Wild, New research proposes models for a Queensland upper house, 23 October 2020.
¹⁷ Lucy Bladen and Dan Jervis-Bardy, ‘ACT would pass “most extreme” euthanasia laws if given chance: Zed Seselja’, The Canberra Times, 21 July 2021.
¹⁸ Mr Terry Young MP, House of Representatives Hansard, 1 August 2022, p. 312.
¹⁹ The Australia Institute, ‘The battle for Territory rights’, YouTube, 14 August 2021, sec. 54:30.
²⁰ John Uhr, ‘Why we chose proportional representation’, Papers on Parliament, No. 34, Department of the Senate, December 1999, pp. 13–56.
²¹ John Uhr, ‘Why we chose proportional representation’, Papers on Parliament, No. 34, Department of the Senate, December 1999, pp. 13–56.
²² The Hon John Howard MP, House of Representatives Hansard, 8 October 1987, p. 1023.
²³ The Hon Senator Scott Ryan, ‘The Senate in an age of disruption’ (Speech, Institute for Government, London, 4 October 2019).
²⁴ Walter Bagehot, The English Constitution, Fontana Press, London, 1993, p. 146.
²⁵ Antony Green, ‘Party totals’, ABC News, 2022.
²⁶ University of New South Wales Council for Civil Liberties, ‘Submission in response to the Prime Minister’s discussion paper – resolving deadlocks: A discussion paper on Section 57 of the Australian Constitution’, 31 December 2003, p. 12.
²⁷ Michael Gallagher, Electoral systems, 18 January 2023, (accessed 3 May 2023); Michael Gallagher, ‘Proportionality, disproportionality and electoral systems’, Electoral Studies, vol. 10, issue. 1, March 1999, pp. 33–51.
²⁸ For a detailed discussion of the limitations of the Gallagher Index, please see Bill Browne and Ben Oquist, Representative, still: the role of the Senate in our democracy, 9 March 2021.
²⁹ Lisa Visentin and Katina Curtis, ‘Record number of women in the 47th Parliament, as female voters shun Liberals’, The Sydney Morning Herald, 31 May 2022.
³⁰ The observation comes from Sharman, although his paper predates Lambie and Xenophon’s elections. See Campbell Sharman, ‘The representation of small parties and independents’, Papers on Parliament, No. 34, Department of the Senate, December 1999.
³¹ ‘Freakish powers of a formidable operator’, The Sydney Morning Herald, 8 December 2007.
³² Australian Electoral Commission, Electoral milestones for Indigenous Australians, 12 November 2020; Scott Brenton, ‘Minority government: is the House of Representatives finally catching up with the Senate?’, Papers on Parliament, No. 55, Department of the Senate, February 2011, p. 121; Hamish Hastie, ‘The story of Australia’s first hijab-wearing Muslim senator – and why she’s looking forward to meeting Pauline Hanson’, Western Australia Today, 23 June 2022; Patricia Karvelas, ‘Labor’s new gay senator Louise Pratt calls for same-sex marriage’, The Australian, 29 August 2008; Department of the Senate, Senate Brief No. 3: Women in the Senate, 2023; Marian Sawer, ‘Overview: institutional design and the role of the Senate’, Papers on Parliament, No. 34, Department of the Senate, December 1999.
³³ Australian Senate, Orders for the production of documents, May 2023; Department of the Senate, ‘Business of the Senate 1901–1906’, 1999.
³⁴ Department of the Senate, ‘Business of the Senate 1901–1906’, 1999, p. v.
³⁵ Department of the Senate, ‘Business of the Senate 1901–1906’,1999, pp. 18–19, 40–41, 62–63, 79–80, 103–104, 125–127.
³⁶ Australian Associated Press, ‘"What is a Thermomix?" MP Joe Ludwig blends oversight with food faux pas’, The Guardian, 24 February 2015.
³⁷ Australian Senate, Orders for the production of documents, May 2023.
³⁸ Harry Evans, Odgers’ Australian Senate practice, ed Rosemary Laing, Department of the Senate, 14th edition, 2016, p. 588.
³⁹ Bill Browne, Democracy Agenda for the 47th Parliament of Australia, 31 March 2022, p. 15.
⁴⁰ Journals of the Senate, No. 41, 12 February 2020, p. 1344.
⁴¹ Bill Browne, Democracy Agenda for the 47th Parliament of Australia, 31 March 2022, p. 15.
⁴² Bill Browne, Talk isn’t cheap – making consultants’ reports publicly available via Senate order, 4 October 2021.
⁴³ Mary Anne Neilsen, Marriage Amendment (Definition and Religious Freedoms) Bill 2017, Bills Digest No. 54, 2017–2018, Parliamentary Library, Canberra, 24 November 2017.
⁴⁴ Lyn Allison, ‘Democrats’ role in saving the wilderness has been sold down the river’, The Sydney Morning Herald, 31 December 2002.
⁴⁵ Australian Law Reform Commission, Incarceration rates of Aboriginal and Torres Strait Islander Peoples: discussion paper 84, July 2017, pp. 76–77.
⁴⁶ John Uhr, ‘The power of one’, Papers on Parliament, No. 41, Department of the Senate, June 2004.
⁴⁷ Judith Brett, From Secret Ballot to Democracy Sausage: How Australia Got Compulsory Voting, Text Publishing, Melbourne, 2019; Michael Roe, Payne, Herbert James Mockford (1866–1944), The Biographical Dictionary of the Australian Senate (Online Edition), Department of the Senate, Canberra, 2004.
⁴⁸ The rare exception to the rule that senators are elected in the order they appear on the party list is Lisa Singh, albeit at a double dissolution where the threshold for election is much lower. See Ben Raue, ‘How Lisa Singh and Richard Colbeck used personal appeal against party rankings’, The Guardian, 9 July 2016.
⁴⁹ Mackerras was writing before the election, but he describes the arrangement in 2016 that led to Keneally contesting Fowler. See Malcolm Mackerras, Kristina Keneally’s candidacy for Fowler represents broader issue in Australian elections, 8 October 2021.
⁵⁰ Bill Browne, Democracy Agenda for the 47th Parliament of Australia, 31 March 2022.
⁵¹ David Hamer, Can responsible government survive in Australia?, 2nd edition, Department of the Senate, Canberra, 2004, p. 109.
⁵² Senator Rex Patrick, Senate Hansard, 28 November 2018, pp. 8940–8941.
⁵³ Jackson Graham, ‘Senator claims public servants ‘misled’ committee over contract’s purpose’, The Mandarin, 17 February 2022.
⁵⁴ The Australia Institute, Polling: majority want greater Senate scrutiny of secret contracts, 5 March 2022.
⁵⁵ Senator Lyn Allison, Senate Hansard, 1 April 2004, p. 22572; Harry Evans, Odgers’ Australian Senate practice, ed Rosemary Laing, Department of the Senate, 14th edition, 2016, pp. 393–394; Senator Kerry O’Brien, Senate Hansard, 1 April 2004, pp. 22569–22570.
⁵⁶ Harry Evans, Odgers’ Australian Senate practice, ed Rosemary Laing, Department of the Senate, 14th edition, 2016, p. 672.
⁵⁷ David Hamer, Can responsible government survive in Australia?, 2nd edition, Department of the Senate, Canberra, 2004,
pp. 298-302.
⁵⁸ Katina Curtis, ‘Crossbench fury as government cuts staffers from four to one’, The Sydney Morning Herald, 24 June 2022; James Massola, ‘Furious crossbench senators threaten to vote against Labor legislation after staff cuts’, The Sydney Morning Herald, 26 June 2022.
⁵⁹ Andrew Podger, ‘PM&C is damaging the integrity and reputation of the public service’, John Menadue, 22 December 2022.
⁶⁰ John-Paul Moloney, ‘Editorial poll’, The Canberra Times, 8 December 2021.
⁶¹ Bill Browne and Ben Oquist, Representative, still: the role of the Senate in our democracy, 9 March 2021.
⁶² The Hon Scott Ryan and Ben Oquist, ‘The Role of the Senate in Our Democracy’, YouTube, 8 March 2021.
⁶³ Department of the Senate, Senate Lecture Series (accessed 13 June 2023).

Accountability for cross-jurisdictional bodies

* This paper was presented as part of the Senate Lecture Series on 20 May 2022.
¹ For a relatively recent comparative account of intergovernmental relations across 12 federations, including Australia, see Johanne Poirier, Cheryl Saunders and John Kincaid (eds), Intergovernmental Relations in Federal Systems, McGill-Queen’s University Press, 2015.
² Cheryl Saunders, ‘Grappling with the Pandemic: Rich Insights into Intergovernmental Relations’, in Nico Steytler (ed), Comparative Federalism and Covid-19’, Routledge, London, 2021.
³ For the comparative significance of this arrangement, see Francisco Palermo and Karl Kossler, Comparative Federalism: Constitutional Arrangements and Case Law, Hart Publishing, 2017, p. 156.
⁴ Queensland, the Northern Territory, and the Australian Capital Territory are the exceptions.
⁵ Egan v Willis (1998) 195 CLR 424.
⁶ The result has been characterised as a new system of ‘semi-parliamentary government’; an interesting insight, whether the characterisation is accepted or not: Steffen Ganghof, ‘A new political system model: Semi-parliamentary government’, European Journal of Political Research, vol. 57, issue 2, 2018, p. 261.
⁷ There is a useful account of these in Gareth Griffith, Parliament and Accountability: The Role of Parliamentary Oversight Committees, Briefing Paper No. 12/05, NSW Parliamentary Library Research Service, 2005.
⁸ Gareth Griffith, Parliament and Accountability: The Role of Parliamentary Oversight Committees, Briefing Paper No. 12/05, NSW Parliamentary Library Research Service, 2005.
⁹ The shift is traced in Andrew Podger, ‘How independent should administration be from politics’, in Andrew Podger, Tsai-tsu Su and John Wanna (eds), Designing Governance Structures for Performance and Accountability, ANU Press, Canberra, 2000.
¹⁰ Department of Finance, Australian Government Organisations Register, 10 May 2023, (accessed 11 May 2023).
¹¹ Apart from the Constitution itself, the enabling legislation for the High Court is the High Court of Australia Act 1979 (Cth). It is not entirely clear to what aspect of ‘status’ the Register refers.
¹² These are Ministerial Councils and related bodies, which is one of 5 sub-categories described as ‘Secondary Australian Government Entities and National Law Bodies’, which is a sub-category under an ‘Other Entities’ listing.
¹³ Interjurisdictional and international bodies, another listing under Secondary Australian Government Entities.
¹⁴ For example the Gene Technology Regulator, in the sub-category Statutory Office Holders, Offices and Committees, one of the Secondary Australian Government Entities.
¹⁵ Public Governance, Performance and Accountability Act 2013 (Cth) sub-s 10(1), paras 11(a)–(b), s 89.
¹⁶ Commonwealth Grants Commission Act 1973 (Cth).
¹⁷ Special Commission of Inquiry into the Ruby Princess, Report, August 2020, p. 34, pp. 205–222. The conferral of authority on New South Wales officers occurred under the Biosecurity Act 2015 (Cth) ss 562, 564.
¹⁸ Gene Technology Act 2000 (Cth).
¹⁹ Australian Crime Commission Act 2002 (Cth).
²⁰ Heavy Vehicle National Law Act 2012 (Queensland).
²¹ Education and Care Services National Law Act 2010 (Vic).
²² Australian Securities and Investment Commission Act 2001 (Cth).
²³ As in, for example, section 4, dealing with the application of the Act.
²⁴ Department of Prime Minister and Cabinet, Corporations Agreement 2002, 6 December 2002.
²⁵ Department of Prime Minister and Cabinet, Intergovernmental Agreement on Heavy Vehicle Regulatory Reform 2011, 19 August 2011; Federal Financial Relations, National Partnership Agreement on Early Childhood Education 2009–2012, 2009.
²⁶ Education and Care Services National Law Act 2010 (Vic), ss 263–265.
²⁷ Australian Crime Commission Act 2002 (Cth) ss 8–9.
²⁸ Gene Technology Act 2000 (Cth) ss 21, 23, 24, 100, 108, 118.
²⁹ Gene Technology Act 2000 (Cth) ss 136, 137.
³⁰ Infrastructure Australia Act 2008 (Cth).
³¹ Australian Curriculum Assessment and Reporting Authority Act 2008 (Cth).
³² In the case of ACARA, the Act is explicitly based on a familiar smorgasbord of powers, in addition to a claim for support on the basis of nationhood: Australian Curriculum Assessment and Reporting Authority Act 2008 (Cth) s 4.
³³ Australian Curriculum Assessment and Reporting Authority Act 2008 (Cth) ss 7, 13, 43
³⁴ Infrastructure Australia Act 2008 (Cth) s 6; Australian Curriculum Assessment and Reporting Authority Act 2008 (Cth) s. 7.
³⁵ Australian Curriculum Assessment and Reporting Authority Act 2008 (Cth) s 43.
³⁶ Department of Prime Minister and Cabinet, National Cabinet, (accessed 11 May 2023).
³⁷ The structure is portrayed here: Department of Prime Minister and Cabinet, Australia’s Federal Relations Architecture, (accessed 11 May 2023).
³⁸ Andrew Barr MLA, ‘Statement on National Cabinet’, Media Release, 15 March 2022.
³⁹ The statement is explicit in the Department of Finance explanation of its category of ‘inter-jurisdictional bodies’:

Some significant governance challenges can arise when bodies are formed that are accountable to more than one government. Clarity of arrangements and responsibilities are normally contained within the framework of a single jurisdiction, and it is crucial to consider this when establishing any inter-jurisdictional body. Different types or levels of accountability to different jurisdictions may ultimately lead to a lack of accountability.

Department of Finance, Types of Australian Government Bodies, 11 February 2021 (accessed 11 May 2023).

Law and border—who has the power to control movement across state borders?

* This paper was presented as part of the Senate Lecture Series on 9 December 2022. Part of this paper is derived from a paper delivered at the Samuel Griffith Society Conference in 2022.
¹ Australian Constitution s 92.
² Sir Samuel Griffith, ‘Notes on the Draft Federal Constitution framed by the Adelaide Convention of 1897’ in John Williams (ed), The Australian Constitution – A Documentary History, Melbourne University Press, 2005, pp. 614 and 630.
³ Official Record of Debates of the Australasian Federal Convention, Second Session, Sydney, 2nd to 24th September 1897, William Applegate Gullick, Government Printer, 22 September 1897, p. 1063 (Cockburn) and p. 1064 (Higgins).
⁴ Official Record of Debates of the Australasian Federal Convention, Second Session, Sydney, 2nd to 24th September 1897, William Applegate Gullick, Government Printer, 22 September 1897, p. 1062.
⁵ Alfred Deakin, ‘Freedom of interstate trade – whether state has power to prohibit imports absolutely to prevent entry of disease’, 12 December 1902, Opinion 118 in Patrick Brazil (ed), Opinions of Attorneys-General of the Commonwealth of Australia Vol 1, Australia Government Publishing Service, Canberra, 1981, pp. 144–148.
⁶ Patrick McMahon Glynn, ‘Freedom of interstate trade – whether state police power extends to exclusion of goods in preventing introduction of disease’, 27 October 1909, Opinion 358 in Patrick Brazil (ed), Opinions of Attorneys-General of the Commonwealth of Australia Vol 1, Australian Government Publishing Service, Canberra, 1981, pp. 464 and 466.
⁷ Ibid.
⁸ Ex parte Nelson [No 1] (1928) 42 CLR 209, 218 (Knox CJ, Gavan Duffy and Starke JJ).
⁹ Tasmania v Victoria (1935) 52 CLR 157, 170 (Gavan Duffy CJ, Evatt and McTiernan JJ).
¹⁰ ‘1000 troops break quarantine – men from the Argyllshire dissatisfied – snakes and discomforts at North Head’, The Border Morning Mail and Riverina Times, 12 February 1919, p. 2.
¹¹ Humphrey McQueen, ‘“Spanish Flu”–1919: political, medical and social aspects’, Medical Journal of Australia, vol. 1, no. 18, 1975, p. 566.
¹² Ibid.
¹³ ‘Holding up the Transcontinental’, The Daily News, 31 January 1919, p. 4.
¹⁴ Carolyn Holbrook, ‘Managing the federation during a pandemic: Spanish Influenza and COVID-19’, Australian Policy and History, 16 November 2020.
¹⁵ Record of interview with Dulcie Johnson, witnessed by E A P Gratwick, 6 November 1944: National Archives of Australia (NAA): A10078, 1945/2.
¹⁶ Gratwick v Johnson (Charge No 242/45), Reserved Decision of W J Wallwork SM, 15 February 1945, NAA: A10078, 1945/2.
¹⁷ ‘Love laughed at rail permits’, The Sun, 26 April 1945, p. 3.
¹⁸ Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29.
¹⁹ Leigh Straw, Angel of Death, Australian Broadcasting Corporation Books, 2019.
²⁰ ‘Curly blonde “had” Perth’, Mirror, 22 June 1946, p. 7; ‘Notorious woman pays us a visit', The Daily News, 26 June 1946, p. 14. On this occasion Dulcie was using the different alias of Dian Lee Bowen.
²¹ W J Wallwork SM, Notes of Evidence. NAA: A10078, 1945/2.
²² Record of interview with Dulcie Johnson, witnessed by E A P Gratwick, 6 November 1944, NAA: A10078, 1945/2.
²³ Gratwick v Johnson (1945) 70 CLR 1.
²⁴ NAA: M1506, 2/1.
²⁵ Native Administration Act Amendment Act 1941 (WA).
²⁶ NAA: A432, 1958/106.
²⁷ ‘Aboriginal “judge” invokes section 92’, Sydney Morning Herald, 20 March 1958, p. 4.
²⁸ Dooley v Haselby, unreported, Appeal No 73 of 1957, 19 March 1958, Supreme Court of Western Australia.
²⁹ Mr Arthur Calwell, Leader of the Opposition, House of Representatives Hansard, 3 December 1957, p. 2796.
³⁰ Ibid.
³¹ See further: Anne Scrimgeour, ‘“Battlin’ for their rights”: Aboriginal activism and the Leper Line’, Aboriginal History, vol. 36, 2012, pp. 43–65.
³² ‘We’ve got a moat and we’re not afraid to use it’, Mercury, 20 March 2020.
³³ Palmer v Western Australia (No 4) [2020] FCA 1221, [73]-[81], [245] and [302].
³⁴ Palmer v Western Australia [2021] HCA 5; (2021) 272 CLR 505, [50] and [62] (Kiefel CJ and Keane J); [114] (Gageler J); [180] (Gordon J); and [218] (Edelman J).
³⁵ Palmer v Western Australia [2021] HCA 5, [77]-[81] (Kiefel CJ and Keane J); [153]-[166] (Gageler J); [205]-[208] (Gordon J); [280]-[291] (Edelman J).
³⁶ Palmer v Western Australia [2021] HCA 5, [81].
³⁷ R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605.
³⁸ Australian Constitution, s 51(xxix).
³⁹ Human Rights Committee, General Comment No. 27: Article 12 (Freedom of Movement), 67th sess, UN Doc (2 November 1999) [14].
⁴⁰ Australian Constitution s 51(ix).