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Article Excerpt
[The central contention of this article is that there is a need for greater involvement of legislators in overseeing a systematic and rights-based scrutiny of the impact of legislation and policy. The recent operation of Australia's asylum laws and policies, in particular; provides an illustration of the reforms required. Challenges to the rights of non-citizens in Australia and other jurisdictions serve as a reminder of the extent of change required before rights are firmly entrenched in the processes of government. A useful step forward would be to enhance the role of legislators in setting the criteria and agenda for post-enactment scrutiny in light of issues raised during pre-legislative scrutiny.]
CONTENTS I Introduction II The Objectives of Post-Legislative Scrutiny A First Objective: The Use of Independent Criteria to Evaluate the Impact of Legislation B Second Objective: Towards a Rights-Based Standard of Post-Enactment Scrutiny C Third Objective: Enhancing the Role of Parliament III An Evaluation of the Post-Enactment Review of Australia's Asylum Laws and Policies A Post-Legislative Scrutiny Mechanisms in Australia-- A State of Flux B First Objective: Independent Scrutiny Criteria 1 Executive Review 2 The Use of Independent Criteria by Parliamentary Committees C Second Objective: The Use of Rights to Scrutinise the Impact of Legislation 1 The Budget Process 2 DIAC's Use of the Outcomes/Outputs Framework 3 The Application of the Outcomes/Outputs Framework to Detention Services D Third Objective: Enhancing Parliament's Post-Enactment Scrutiny Role 1 The Budget Process 2 Parliamentary Inquiries 3 Parliamentary Tabling Procedures 4 Utilising the Expertise of Independent Agencies IV Enhancing Rights Protection through Improvements in Post-Enactment Scrutiny A Internal Monitoring B Independent Criteria C Parliament's Involvement and Input D Tabling Procedures V Conclusion
I INTRODUCTION
The basic proposition in this article is that there is a need for greater involvement of legislators in a systematic and rights-based scrutiny of the impact of legislation and policy. To date, reformist literature on the role of Parliament in the scrutiny process in Australia and elsewhere has primarily focused on the benefits of greater parliamentary involvement in the scrutiny of Bills before enactment ('pre-legislative scrutiny'). (1) Scholars have charted the evolution of pre-legislative scrutiny through the work of parliamentary committees such as the United Kingdom's Joint Committee on Human Rights and Australia's Senate Scrutiny of Bills Committee. (2) The use of pre-legislative scrutiny as a tool for rights protection has figured significantly in these studies (3)--the accounts of pre-legislative scrutiny are increasingly sophisticated and display a general rights agenda.
On the other hand, how the avenues of parliamentary scrutiny might also contribute to the scrutiny of the impact and operation of legislation after enactment is a comparatively neglected area of Anglo-Australian scholarship. (4) This is despite the fact that there has been a significant push for greater involvement of parliamentarians in post-enactment scrutiny within the UK Parliament for some time. (5) Various UK parliamentary reports have recommended that legislators both set the criteria for post-legislative scrutiny by the executive (6) and provide oversight of that evaluation process through the existing parliamentary committee structure. (7) The movement culminated in the UK Law Commission's 2006 report on post-legislative scrutiny, which 'found there to be overwhelming support for the principle that there should be a more systematic approach to post-legislative scrutiny and that the process for such scrutiny should be controlled by Parliament.' (8) At the time of writing, the Law Commission's report was 'under active consideration by the government.' (9)
In Australia, on the other hand, there has been comparatively little historical interest in the idea of post-enactment scrutiny by Parliament outside Senate estimates hearings. There are signs that the Commonwealth Parliament is now turning its attention to entrenching a process of post-enactment review with respect to controversial pieces of legislation. In particular, the new terrorism laws introduced following the attacks of 11 September 2001 have seen a number of post-enactment review mechanisms trialled, including review by the Parliamentary Joint Committee on Intelligence and Security ('PJCIS'), (10) the Security Legislation Review Committee (11) and the Australian Law Reform Commission. (12) Yet a recent report of the PJCIS observed that '[t]he limited mandate of each review mechanism has prevented a more holistic assessment of the terrorism law framework.' (13) This observation reflects the general situation that, compared to the growth in Parliament's involvement in pre-legislative scrutiny, post-enactment scrutiny by the Commonwealth Parliament remains stunted and unsystematic.
Rather than attempt a sweeping study of post-enactment scrutiny in Australia, this article aims to contribute to calls for an enhanced role for the Commonwealth Parliament in post-legislative scrutiny by critically analysing the post-enactment review of Australia's asylum laws and policies. Concentrating on a discrete area of government policy reflects the basic point that effective post-legislative scrutiny is best achieved by fostering a flexible, responsive and tailored approach, rather than a 'one size fits all' approach. (14) At the Commonwealth level, this article argues that the legislative and general purpose standing committees of the Senate--which have the role of inquiring into and reporting on 'the performance of departments and agencies allocated to them' (15)--have a central role to play in ensuring focused and effective post-enactment review of legislation by government and independent agencies within their purview.
Moreover, evaluating the post-enactment review of asylum laws and policies has importance in its own right. The recent operation of Australia's refugee laws provides a stark illustration of the potential adverse consequences of a system where a vulnerable group within society does not have the protection of effective and coordinated rights-based post-enactment review. In particular, there is an imperative for more effective post-enactment review in the asylum arena given the executive's and Parliament's broad constitutional powers with respect to the exclusion, expulsion and detention of aliens. (16)
In an interdisciplinary spirit, and to foster greater dialogue between public law and international law, this article also aims to indirectly contribute to the specialist literature on the rights of refugees under international law. Strong, rights-focused national institutions are central to the implementation and entrenchment of refugee rights. The thrust of this article should be seen as progressing a general call for greater institutional and rights protection of refugees within the domestic legal and political milieu of states. Ultimately, an effective refugee rights regime depends on an interdependent international and legal framework that has, as its benchmark, a core set of human rights standards.
This article will first outline the key purposes of post-enactment scrutiny. Part III examines the extent to which those objectives are met in the context of 'the current post-legislative scrutiny mechanisms applied to Australia's asylum laws and policies. In light of the shortfalls identified, Part IV considers potential reform and proposes an enhanced role for Senate legislative and general purpose standing committees. It is suggested that these committees should proactively set the post-legislative review agenda in a way that focuses on specific rights concerns either raised during the pre-legislative scrutiny process or triggered during the implementation phase, while simultaneously utilising the resources and expertise of government and independent agencies.
II THE OBJECTIVES OF POST-LEGISLATIVE SCRUTINY
Before examining the post-enactment scrutiny of Australia's asylum laws and policies, it is necessary to consider what post-enactment scrutiny is and what it is intended to achieve. As the UK Law Commission noted in its 2006 report on post-legislative scrutiny, the definition and purpose of post-legislative scrutiny are more or less the same. (17) In other words, post-enactment scrutiny is defined largely in terms of what it is intended to achieve and by reference to the mechanisms in place to carry out those objectives. Although a sensible observation, the problem, as noted by the Law Commission in its earlier consultation paper, is that there is in fact no agreement on either the objectives or mechanisms of post-legislative scrutiny. (18)
A First Objective: The Use of Independent Criteria to Evaluate the Impact of Legislation
The first uncertainty relates to whether post-enactment scrutiny involves the use of standards independent of the legislative measure. On the face of it, there appears to be a fundamental disagreement between the UK Law Commission's idea of the purpose of post-enactment scrutiny and the purpose envisaged by leading scrutiny scholars. Without distinguishing between pre- and post-legislative scrutiny, David Feldman defines scrutiny of legislation as 'a matter of testing legislation by reference to certain standards, and seeking to ensure that it meets those standards, whether or not one approves of what the legislation is trying to achieve.' (19) In this sense, scrutiny is a 'principled activity' that tests legislative measures against standards or .criteria that are independent of the measures themselves. (20)
In contrast, the Law Commission states that the purpose of post-legislative scrutiny is 'to address the effects of the legislation in terms of whether the intended policy objectives have been met by the legislation and, if so, how effectively.' (21) In light of this purpose, the Commission states that the reasons for fostering a more systematic post-enactment scrutiny regime in the UK are fourfold: first, determining whether legislation is 'working out in practice as intended'; secondly, contributing to 'better regulation'; thirdly, improving the 'focus on implementation and delivery of policy aims'; and fourthly, identifying and disseminating 'good practice'. (22) Consequently, while Feldman and other scrutiny scholars highlight the use of independent standards to review a legislative measure, the Law Commission appears to propose that the purpose of legislative scrutiny is simply to assess the impact of legislation against criteria derived from the underlying policy of the measure itself.
On its lace, the Law Commission's position on scrutiny appears to fall within the 'instrumentalist' camp. In accordance with the instrumentalist approach to scrutiny, the purpose of scrutiny is to highlight any divergence between parliamentary intention and the operation of legislation. Instrumentalists, represented here by Luzius Mader, argue that 'elucidating the gap between legislative intentions and the results achieved may be an impetus to the adaptation of legal norms.' (23) This approach fits nicely within traditional notions of the separation of powers, which assume a clear legislative intent, an executive to carry that intent into effect, and a judiciary to arbitrate on the meaning of legislation in cases of disagreement.
There are two major problems with an instrumentalist approach to post-enactment scrutiny. The first is that the instrumentalist position assumes that 'the Parliament' is a relatively cohesive entity and that Parliament's intention is clear. However, Parliament is far from cohesive. (24) Parliament is a diverse body, containing the political executive, members of the opposition, minor parties, independents, committees, and an increasingly disgruntled and outspoken government backbench, all within a bicameral legislature. (25) The presence of these factors suggest that while 'parliamentary intent' may be a necessary legal fiction in legitimising the judiciary's determination of the meaning of legislation, it should be jettisoned as a reason for constraining the use of standards 'outside' legislation in any post-legislative scrutiny process.
A second and related point is that the instrumentalist approach does not sit well with the current work undertaken by parliamentary scrutiny committees. Standards that judge the 'fitness of the legislation for its declared purpose' are merely some of the standards that parliamentary scrutiny committees employ. (26) Others derive from constitutional law, including the inappropriate delegation of legislative power, formal conceptions of the rule of law, and rights. (27) As a result, while the instrumentalist position does not guarantee any greater degree of scrutiny in accordance with standards that are independent of the legislative measure, in practice parliamentary scrutiny is heading this way.
It is also arguable that the use of independent scrutiny criteria fits within the instrumentalist framework if it is accepted that 'the Parliament' consists of more than the legal fiction of its intention. For the purposes of elucidating and legitimising Parliament's use of independent scrutiny standards after enactment, the legislative intent is found instead within Parliament's law-making procedures which include the working of committees within their terms of reference. The use of independent scrutiny criteria represents an example of what Jeffrey Goldsworthy refers to in a more general sense as the 'structuring' of the law-making function through the law-making procedures of Parliament. (28) In this way, post-enactment parliamentary scrutiny can legitimately cover those instances where, for example, the political executive has 'chanced its arms' and gone against the warnings of parliamentary committees that a legislative measure risked breaching independent scrutiny criteria. There are therefore important reasons why post-legislative scrutiny should extend beyond merely evaluating the gap between policy and implementation to include the application of independent scrutiny criteria.
B Second Objective: Towards a Rights-Based Standard of Post-Enactment Scrutiny
Assuming that the application of independent scrutiny criteria is an objective of post-enactment review, there is also no firm agreement on the extent to which those criteria include human rights. There are several possible arguments in favour of encouraging the use of human rights during post-legislative scrutiny. The first is that employing human rights criteria at both the pre- and post-legislative scrutiny stages has the benefit of integrating the scrutiny criteria employed throughout the legislative process, leading to greater certainty and clarity in the making and implementation of law. (29) This argument recognises that pre-legislative scrutiny and post-legislative scrutiny are complementary.
This argument has the most force in the UK, where the introduction of the Human Rights Act 1998 (UK) c 42 has resulted in the growing use and awareness of human rights as an important standard against which legislative measures are scrutinised. (30) The creation of the Joint Committee on Human Rights ('JCHR'), with the broad ambit to consider 'matters relating to human rights in the United Kingdom', (31) has seen a steady growth in the use of human rights criteria by parliamentary committees to scrutinise Bills and by government when formulating legislative and policy measures. In Australia, on the other hand, although human rights feature as an increasingly important source of criteria employed during pre-legislative scrutiny, their definition and application by government and Parliament remains chequered. (32) Therefore, calls for greater use of human rights in post-enactment scrutiny must go hand in hand with strengthening pre-legislative rights scrutiny.
There is some evidence to support the application of human rights criteria to post-enactment review. Significantly, the UK Law Commission's report, while on its face adopting an instrumentalist approach to post-legislative scrutiny, implicitly accepts the role of human rights criteria when viewed in the context of the developing role of pre-legislative rights scrutiny in the UK. One of the major recommendations of the Commission for improving...
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