Last November, when the federal government rammed through more than 30 pieces of legislation on the final day of parliament, some saw it as a startling departure from proper parliamentary practice.
Senator Jackie Lambie came close to securing majority support in the senate for a motion condemning what she described as a tactic that undermined democratic principles.
The only thing wrong with Lambie’s critique was its timing. It should have come earlier.
What happened on that dark day in November was not an aberration. It was the culmination of a pattern of executive hubris in which scrutiny of proposed legislation has been wound back.
One of the measures of true democracy is not just the existence of elections. A real democracy requires legislative bodies to have the ability to exercise effective checks and oversight of the government.
Parliamentary scrutiny is much more than an inconvenience for the executive branch of government. It is a bulwark against authoritarian rule.
It provides a framework for community involvement which reduces the likelihood of unforeseen consequences – something any government should welcome.
Yet consider the experience of the past few years under prime minister Anthony Albanese.
The erosion of parliamentary scrutiny is now so entrenched it has become a repeated focus for criticism from an organisation that could never be described as partisan.
The Law Council of Australia – the legal profession’s peak national body – is now a consistent critic of restrictions on parliamentary inquiries into proposed legislation.
The government’s approach to this form of public scrutiny is now best described as perfunctory.
That increases the likelihood that next year’s report on Australia by the World Justice Project will once again point to a reduction in constraints on government power – which is one of the key factors used by the WJP to assess the health of the rule of law.
Consider the following examples, all of which are drawn from the official records of parliamentary inquiries.
In September, 2023, stakeholders were given just thirteen business days to assess the government’s proposed legislation on identity verification.
The government’s bills had been referred to the senate’s legal and constitutional affairs legislation committee on September 14 and stakeholders were only given until October 2 to make submissions.
Law Council president Luke Murphy told the committee the short timeframe “does not reasonably enable the committee to carefully scrutinise whether the bills strike the right balance”.
In December of 2023, a committee of the House of Representatives was asked to run an inquiry into the government’s plan to abolish and replace the Administrative Appeals Tribunal.
The bills under review comprised more than 550 pages and the explanatory materials comprised another 500 pages.
All that material – 1050 pages – had been referred to the standing committee on social policy and legal affairs on December 14, 2023, and the committee then asked for submissions to be made by January 18, 2024.
That period straddled the Christmas-New Year holidays when many institutions were closed.
Even though the Law Council received extra time to make its submission it told that inquiry it was “very concerned that the committee’s truncated inquiry period will undermine or diminish the democratic and proper scrutiny of the bills”.
A similar approach was on show in April last year when the senate legal and constitutional affairs legislation committee was reviewing the planned legislative response to the NZYQ High Court decision.
When the public was again given just thirteen business days to make submissions, the Law Council made its concern clear in its response to a question on notice:
“The Law Council of Australia also reiterates its objection to the rushed process for passage of this bill, which has not allowed time for the kind of scrutiny required of such far-reaching changes to the law . . . “.
Even if it is accepted that the NZYQ response was urgent, that does not explain why a similar rushed approach to public scrutiny was used when the government’s legislative crackdown on deepfake pornography was under review.
That bill was referred to the legal and constitutional affairs legislation committee on June 27 and stakeholders were given just seventeen business days before submissions closed on July 19.
The Law Council again complained.
“Because of the limited time available between referral of this inquiry for review by this committee and the deadline for public submissions, our constituent bodies and expert advisory committees have not been able to consider completely all the issues raised by this Bill,” its submission says.
“As a general point, we reiterate the importance of appropriate consultation timelines to enable informed scrutiny of what are important changes to Australia’s criminal law frameworks,” the submission says.
There is no sign of improvement.
On September 19, the same senate committee was asked to conduct an inquiry into the government’s Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill.
Stakeholders were given eighteen business days to consider the 171-page bill, 179-page explanatory memorandum and provide submissions.
The Law Council told that inquiry:
“The Bill is lengthy and complex, substantially amending legislation which already fits this description. The Bill was presented without an exposure draft and with a limited timeframe in which to analyse its impact on affected persons.
“In the time available, it has not been possible to make a full assessment of the impact of the Bill,” the submission says.
What we are witnessing is a pattern of government behaviour that pays insufficient regard to one of the great strengths of democratic lawmaking: community groups have expertise and perspectives that should be encouraged and tapped, not treated with disdain.
