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Published online by Cambridge University Press: 01 January 2025
This paper analyses how four Australian state parliaments debate the rights implications of anti-bikie bills that restrict various individual rights. It focuses on three state parliaments–those of Victoria, Queensland and New South Wales–which have committees that scrutinise all bills for their rights implications and it compares the debate in these parliaments with that of South Australia where such systematic rights-scrutiny of all bills is absent. The paper considers whether the existence of a formal parliamentary committee for rights-scrutiny strengthens or diminishes the process of parliamentary scrutiny of bills for their rights implications. Overall the paper argues that, regardless of the system in place, parliamentary rights-scrutiny remains weak in the four surveyed Australian states when parliaments debate law and order bills. However, this weakness is manifested in different ways, with full and frank rights-deliberation deficient in Victoria, Queensland and New South Wales and systematic and well-informed rights-scrutiny absent in South Australia.
For their assistance I would like to thank Associate Professor Gabrielle Appleby, Professor Clem McIntyre, Sarah Moulds, Dr David Plater, Dr Anna Olijnyk, Holly Ritson, David Hunt and Scott Hunt. I would also like to thank the organisers of the 2015 ANU Public Law Weekend at which this paper was first presented.
1 David Feldman, ‘Parliamentary Scrutiny of Legislation and Human Rights’ [2002] Public Law 323, 336.
2 Ibid.
3 See Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, Report No 129 (2016) Ch 3.
4 Feldman, ‘Parliamentary Scrutiny’, above n 1, 336.
5 Kinley, David, ‘Parliamentary Scrutiny of Human Rights: A Scrutiny Neglected?’ in Alston, Philip (ed), Promoting Human Rights Through Bills of Rights: Comparative Perspectives (Oxford University Press 1999) 158, 184.Google Scholar
6 Ibid 183.
7 Hiebert, Janet, ‘Legislative Rights Review: Addressing the Gap between Ideals and Constraints’ in Hunt, Murray, Hooper, Hayley and Yowell, Paul (eds), Parliament and Human Rights: Redressing the Democratic Deficit (Hart, 2015) 39, 52.Google Scholar For an analysis of the complexity of amendments and the ability of parliaments to exert substantial influence in the policy process, see Russell, Meg, Gover, Daniel and Wollter, Kristina, ‘Does the Executive Dominate the Westminster Legislative Process?: Six Reasons for Doubt’ (2016) 69 Parliamentary Affairs 286–308.CrossRefGoogle Scholar
8 Appleby, Gabrielle and Williams, John, ‘A New Coat of Paint: Law and Order and the Refurbishment of Kable’ (2012) 40 Federal Law Review 1, 1.CrossRefGoogle Scholar
9 For an analysis of the right-impact of anti-bikie laws in Queensland, see Hobbs, Harry and Trotter, Andrew, ‘How Far Have We Really Come? Civil and Political Rights in Queensland’ (2013) 25 Bond Law Review 166.Google Scholar
10 For example, Stone explains that even the Abbott-led Liberal National Opposition in the 2010-2013 Commonwealth Parliament, which had a higher rate of negative voting than previous Oppositions (1996-2010), supported nearly 80% of bills: Stone, Bruce, ‘Opposition in Parliamentary Democracies: A Framework For Comparison’ (2014) 29 Australasian Parliamentary Review 19, 25.Google Scholar This indicates that bipartisan support is the norm in Australian parliaments.
11 South Australia, Parliamentary Debates, House of Assembly, 13 February 2008, 2053–4 (Isobel Redmond).
12 South Australia, Parliamentary Debates, House of Assembly, 26 February 2008, 2188 (Michael Atkinson).
13 Criminal Organisation Bill 2009 (Qld).
14 Kelly, James, ‘A Difficult Dialogue: Statements of Compatibility and the Victorian Charter of Human Rights and Responsibilities Act’ (2011) 46 Australian Journal of Political Science 257, 272 (emphasis in original).CrossRefGoogle Scholar
15 Kable v DPP (NSW) (1996) 189 CLR 51 (‘Kable’).
16 For example, in 2015 the South Australian Government sought to introduce bills that mirror Queensland's anti-bikie laws such as Tattoo Parlours Act 2013 (Qld). In some cases, this rush to ‘copy and paste’ has led to the curious exclusion of critical mechanisms designed to remedy incursions into rights: see Appleby, Gabrielle, ‘The High Court and Kable: A Study in Federalism and Rights Protection’ (2014) 40 Monash University Law Review 673, 695–6.Google Scholar
17 This paper does not comment on the constitutional anxieties apparent in these debates, but it traces whether and how these Kable doctrine cases trigger rights-debate in state parliaments.
18 Kelly, n 14, 272.. See also Feldman, David, ‘Democracy, Law and Human Rights: Politics as Challenge and Opportunity’ in Hunt, Murray et al (eds), Parliament and Human Rights: Redressing the Democratic Deficit (Hart Publishing 2015) 95, 108.Google Scholar
19 When SARC was established by a Liberal Government in 1992 it was given the ‘traditional common law scrutiny mandate’ despite recommendations by the Legal and Constitutional Committee for a broader scrutiny mandate including human rights: see Parliament of Victoria, Legal and Constitutional Committee, Report on the Desirability of Otherwise of Legislation Defining and Protecting Human Rights (1987), Recommendations 4 & 5, 158–64.
20 See section II.
21 Victoria, Parliamentary Debates, Legislative Assembly, 29 November 2012, 5640 (Sue Pennicuik).
22 Criminal Organisations Control Bill 2012 (Vic); Fortification Removal Bill 2013 (Vic); Criminal Organisations Control and Other Acts Bill 2014 (Vic).
23 Criminal Organisation Bill 2009 (Qld); Vicious Lawless Association Disestablishment Bill 2013 (Qld); Criminal Law (Criminal Organisations Disruption) Amendment Bill 2013 (Qld); Tattoo Parlours Bill 2013 (Qld); Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Bill 2013 (Qld).
24 Crimes (Criminal Organisations Control) Bill 2009 (NSW); Crimes (Criminal Organisations Control) Bill 2012 (NSW); Crimes (Criminal Organisations Control) Amendment Bill 2013 (NSW).
25 Kinley, above n 5, 183.
26 In contrast, the briefest debates took place in Victoria's Parliament where all three Victorian bills surveyed were debated a total of nine hours.
27 See Byrnes, Andrew, ‘The Protection of Human Rights in NSW through the Parliamentary Process—A Review of the Recent Performance of the NSW Parliament's Legislation Review Committee’ (2009) 43 UNSW Law Research Series 1Google Scholar, and Law Council of Australia, Future Direction and Role of the Scrutiny of Bills Committee (2010) 8–9.
28 See the terms of reference for the following committees: the federal Senate Standing Committee on the Scrutiny of Bills (SSCSB), Victoria's Scrutiny of Acts and Regulations Committee (SARC), the ACT's Standing Committee on Justice and Community Safety (Legislative Scrutiny Role) and the NSW Legislation Review Committee. The committees in the ACT and Victoria also use additional scrutiny principles found respectively in the Human Rights Act 2004 (ACT) and Charter of Rights and Responsibilities Act 2006 (Vic). The SSCSB's full terms of reference as set out in Standing Order 24 are to consider whether legislation might: (i) trespass unduly on personal rights and liberties; (ii) make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers; (iii) make rights, liberties or obligations unduly dependent upon non-reviewable decisions; (iv) inappropriately delegate legislative powers; or (v) insufficiently subject the exercise of legislative power to parliamentary scrutiny.
29 See section IIB below. For a recent and rigorous evaluation of the PJCHR, see Williams, George and Reynolds, Daniel, ‘The Operation and Impact of Australia's Parliamentary Scrutiny Regime for Human Rights’, (2015) 41(2) Monash University Law Review 469.Google Scholar
30 Grenfell, Laura, ‘An Australian Spectrum of Political Rights Scrutiny: “Continuing to Lead by Example?”’ (2015) 26 Public Law Review 19.Google Scholar
31 Feldman, above n 1.
32 Campbell, Tom, ‘Human Rights Strategies: An Australian Alternative’ in Campbell, Tom et al (eds), Protecting Rights Without A Bill of Rights: Institutional Performance and Reform in Australia (Ashgate, 2006) 319, 334.Google Scholar
33 Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1290 (Rob Hulls).
34 Ibid.
35 The debate for all three Victorian bills lasted nine hours: the debates on the 2012 bill took 4 ½ hours, the 2013 bill took two hours and the 2014 bill took 2 ½ hours.
36 See the table on ‘Bills amended in response to SARC’ for the period 2010-2014 in Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’), Submission No 90 to Michael Brett Young, Eight-Year Review of the Charter of Rights and Responsibilities Act 2006, 2015, 44 (‘VEOHRC 2015 Submission’). This indicates that during this period only 4 bills were amended in response to SARC.
37 Kelly, above n 14, 270. This is consistent with the observations of the Chair of SARC in 2009, Carlo Carli MP, quoted in Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 (September 2015), 177 (‘Charter Review 2015’).
38 In total, of the 332 bills that were passed in the entire 57th Parliament of Victoria (December 2010-November 2014) only 11 were amended in the Legislative Council and 28 were amended in the Legislative Assembly. While it appears that all were government amendments, it is possible that some can be traced to some form of parliamentary pressure: see Russell et al, above n 7. Note that the Liberals/Nationals Coalition controlled 21 out of the 40 seats in the Legislative Council.
39 See for example the contribution of Hon Edward O’Donohue in the debates in Victoria, Parliamentary Debates, Legislative Council, 13 December 2012, 5643–5. O’Donohue only mentions SARC in response to the Greens’ questions.
40 Victoria, Parliamentary Debates, Legislative Assembly, 29 November 2012, 5282, 5284, 5287.
41 This is in accordance with s 21(1) of the Parliamentary Committees Act 2003 (Vic) which provides that: ‘(a) at least 1 [SARC member] must be a member of the Legislative Assembly; and (b) at least 1 must be a member of the Legislative Council.’
42 Parliament of Victoria, Scrutiny of Acts and Regulations Committee, Alert Digest 6 of 2013 (7 May 2013), 9–10.
43 Victoria, Parliamentary Debates, Legislative Council, 3 September 2013, 2598 (Sue Pennicuik). None of Pennicuik's proposed amendments challenge the central aim of the legislation—they instead suggest additional safeguards to ensure that the legislation is proportionate and non-arbitrary. Pennicuik moved one amendment in regard to the 2012 Bill and circulated an amendment in regard to the 2013. Pennicuik moved a committee referral for the 2012 and 2014 bills but both were defeated.
44 Victoria, Parliamentary Debates, Legislative Council, 3 September 2013, 2597.
45 Kelly, above n 14, 263.
46 Victoria, Parliamentary Debates, Legislative Council, 13 December 2012, 5644 (Hon Edward O’Donoghue).
47 Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1292 (Rob Hulls) (emphasis added).
48 Kelly, above n 13, 268.
49 Victoria, Parliamentary Debates, Legislative Council, 3 September 2013, 2593.
50 Victoria, Parliamentary Debates, Legislative Council, 13 December 2012, 5654.
51 Ibid 5644 (Hon Edward O’Donoghue).
52 Victoria, Parliamentary Debates, Legislative Assembly, 3 September 2013, 2592.
53 Jeremy Gans, ‘Scrutiny of Bills under Bills of Rights: Is Victoria's Model the Way Forward?’ (Paper presented at the Australia-New Zealand Scrutiny of Legislation Conference: Scrutiny and Accountability in the 21st Century, Parliament House, Canberra, 6-8 July 2009) 12.
54 Victoria, Parliamentary Debates, Legislative Council, 3 September 2013, 2597.
55 This absence of crossbenchers makes it difficult to characterise SARC as a particularly representative body, given the increase in cross-bench members in Victoria's Legislative Council since the advent of the Single Transferrable Vote Proportional Representation System in that house in late 2006 when two new parties (the Greens and Democratic Labor) entered the Council. Since this time they have been joined by three more minor parties but, between 2012 and 2014, only three of the 40 MLCs were cross benchers, all from the Greens party. Crossbenchers sit on the parliamentary rights-scrutiny committees in NSW and Qld as well as the two federal rights scrutiny committees, the SSCSB and the PJCHR.
56 Parliament of Victoria, Scrutiny of Acts and Regulations Committee, Alert Digest No 9 of 2014 (5 August 2014), 13–14.
57 Re Application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 (7 September 2009) [160]–[164].
58 From 2012-2014, SARC received submissions on only nine Bills. In this period, SARC produced substantive Charter reports on 59 Bills out of a total of 289: VEOHRC 2015 Submission, 44. The low rate of public submissions may reflect the practice of SARC not to directly engage with or analyse such submissions: Charter Review 2015, 182. The LIV produced a submission on the 2014 bill but directed it to the Attorney-General and not to SARC, presumably on invitation and so as to influence the pre-introduction phase of the bill. In the period from 2012-2014, the LIV made three submissions on bills in total.
59 Parliament of Victoria, Scrutiny of Acts and Regulations Committee, Alert Digest 9 of 2014, (5 August 2015), 14.
60 According to SARC's five year review of the Charter, SARC has reported that a Bill ‘may be incompatible with human rights’ for 4% of all bills: Parliament of Victoria, Scrutiny of Acts and Regulations Committee, Review of the Charter of Human Rights and Responsibilities Act 2006 (2011), 85.
61 Ibid 15.
62 Victoria, Parliamentary Debates, Legislative Council, 19 August 2014, 2522.
63 This is a requirement under section 28 of the Charter, but failure to present a statement of compatibility does not affect the Bill's validity or operation upon enactment. Section 30 states that SARC must report to Parliament as to whether a bill is incompatible with the human rights listed in the Charter but it does not stipulate a timeframe for this reporting or clarify whether a failure to report affects a Bill's validity.
64 This convention is not enshrined in Victoria's Constitution or any standing or sessional orders of either House of Parliament: Charter Review 2015, 184.
65 Section 17(c)(2) (emphasis added).
66 Parliamentary Committees Act 2003 (Vic) ss 279(1) and 28(8).
67 The last public hearing held by SARC was in 2009 to determine whether amendment should be made to the exceptions and exemptions in the Equal Opportunity Act 1995 (Vic).
68 Confidential, Submission No 22 to Victorian Scrutiny of Acts and Regulations Committee, Review of the Victorian Charter of Human Rights and Responsibilities Act 2006, June 2011 cited in Victorian Department of Justice, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2005) 76.
69 For example, Hon Edward O’Donohue MLC, Dr Bill Sykes MLA and Don Nardella MLA. Unlike the SSCSB there appears to be no general rule that Parliamentary Secretaries do not sit on SARC. See Kelly, above n 4, 274–6 regarding SARC being a government committee and the impact of this on the dialogue structure intended under Charter. For an argument that parliamentary secretaries can be understood as members of the executive, see Prasser, Scott, ‘Executive growth and the takeover of Australian parliaments’ (2012) 27 Australasian Parliamentary Review 48.Google Scholar
70 Charter Review 2015, 174 (emphasis added).
71 This paper should not be read to imply that the ability to undertake meaningful rights deliberation is dependent on legal training. However, it recognises that legal training can equip and embolden parliamentarians for the difficult task of articulating the technical implications of provisions and their connection to opaque rights founded in the common law and/or the Constitution.
72 Criminal Organisation Bill 2009 (Qld); Vicious Lawless Association Disestablishment Bill 2013 (Qld); Criminal Law (Criminal Organisations Disruption) Amendment Bill 2013 (Qld); Tattoo Parlours Bill 2013 (Qld); Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Bill 2013 (Qld).
73 This is required under section 23 of the Legislative Standards Act 1992 (Qld).
74 Charter Review 2015, 176.
75 See Law Council of Australia, Submission 19 to Senate Standing Committee for the Scrutiny of Bills, Inquiry into the Future Direction and Role of the Scrutiny of Bills Committee, 6 April 2010, 15.
76 Queensland, Parliamentary Debates, Legislative Assembly, 25 November 2009, 3632 (Janet Stuckey), 3627 (Scott Emmerson).
77 Scrutiny of Legislation Committee, Parliament of Queensland, Alert Digest 11 of 2009 (10 November 2009) 11–29. Queensland, Parliamentary Debates, Legislative Assembly, 25 November 2009, 3600 (Lawrence Springborg), 3619 (Vaughan Johnson), 3628 (Andrew Powell), 3632, 3634 (Janet Stuckey); Queensland, Parliamentary Debates, Legislative Assembly, 26 November 2009, 3672 (Elizabeth Cunningham (Ind)), 3683–4 (Peter Dowling), 3695 (Glen Elmes), 3701 (Tracey Davis), 3702 (Robert Messenger).
78 Queensland, Parliamentary Debates, Legislative Assembly, 25 November 2009, 3632 (Janet Stuckey), 3617 (Vaughan Johnson), and 3600 (Lawrence Springborg) where the Explanatory Notes were criticised for failing to justify the rights-restrictions imposed by the Bill. See also Queensland, Parliamentary Debates, Legislative Assembly, 26 November 2009, 3688 (Christopher Foley), 3701 (Tracey Davis).
79 See Ransley, Janet, ‘Illusions of Reform: Queensland's Legislative Assembly since Fitzgerald’ in Aroney, Nicholas, Prasser, Scott and Nethercote, J R (eds), Restraining Elective Dictatorship: The Upper House Solution? (UWA Press, 2008) 248, 255–7Google Scholar; and Nicholas Aroney and Scott Prassad, Submission to Queensland Information Commissioner, Government Integrity and Accountability Green Paper, September 2009, 6.
80 Parliament of Queensland Act 2001 (Qld) s 93.
81 Ibid.
82 Daniel Hurst, ‘Opposition Roles to Dwindle’, Brisbane Times (Queensland), 1 May 2012. Hurst reveals that at the 2009 LNP Convention the party supported a referendum to re-establish the Upper House but retreated from this position in light of the new committee structure established through bipartisan support in 2011. According to Queensland Parliament, Factsheet 3.22: Overview of the Parliamentary Reform and Modernisation Initiatives (July 2015) <https://www.parliament.qld.gov.au/documents/explore/education/factsheets/Factsheet_3.22_OverviewOfParliamentReformAndModernisation.pdf>, 1, the reforms to the committee system will ‘strengthen the parliamentary committee system and accountability’.
83 Parliament of Queensland, Standing Order 133(2).
84 Parliament of Queensland, Standing Order 134.
85 This was the case with all portfolio committees. See the Parliament of Queensland and Other Acts Amendment Act 2012 (Qld).
86 Almost half of the LACSC's bill-scrutiny report recommendations were the subject of a dissenting report or an expression of reservations between May 2012 and May 2014. In this same two-year period Government LNP members made recommendations regarding potential non-compliance with the FLPs in only four of fifty-seven reports on bills and regulations. The fact that the LACSC, like all portfolio committees, is required to scrutinise the policy intent of bills and also recommend whether the bill be passed may decrease its ability to reach consensus by steering clear of party politics. Prior to this, the SLC worked predominantly by consensus. The SLC tabled 22 FLP concerns regarding the 2009 Criminal Organisation Bill and no government members made reservations or dissented: see Parliament of Queensland, Scrutiny of Legislation Committee, Legislation Alert 11 of 2009 (10 November 2009), 11–29.
87 Standing Order 136(5) which operated from 7 September 2011 to 21 August 2012. In the 2009 debates, the SLC published its report on the 2009 Bill twelve days after the Bill was introduced, leaving 14 days before the bill was debated. The SLC requested a Ministerial response which was promptly furnished the following day.
88 See below in this section.
89 Vaughan Johnson was the only LNP MP not to invoke rights-concerns in his speech: Queensland, Parliamentary Debates, Legislative Assembly, 25 November 2009, 3617–19.
90 Queensland, Parliamentary Debates, Legislative Assembly, 25 November 2009, 3594.
91 With one exception where a LNP member articulated the rights and freedoms of the community: Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3236 (Verity Barton).
92 Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3208.
93 Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3158 (Jarrod Bleijie).
94 No member of the Greens Party has won a seat in Queensland's unicameral parliament that does not have a system of proportional representation. In 2008 a Labor MP, Ronan Lee, defected to the Greens but was not re-elected in the March 2009 state election.
95 Melinda Howells, ‘KAP call to abolish Qld Parliamentary committees’, ABC News Online (Australia), 28 October 2013.
96 Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3230.
97 Quoted by Daniel Hurst, ‘Opposition Roles to Dwindle’, Brisbane Times (Queensland), 1 May 2012.
98 Queensland, Parliamentary Debates, Legislative Assembly, 26 November 2009, 3670–2.
99 One Labor MP, Lindel Nelson Carr, made no reference to rights-concerns at all: Queensland, Parliamentary Debates, Legislative Assembly, 26 November 2009, 3697.
100 Scrutiny of Legislation Committee, Parliament of Queensland, Alert Digest 11 of 2009 (10 November 2009) 11–29.
101 Queensland, Parliamentary Debates, Legislative Assembly, 21 November 2013, 4203–6, 4230–5.
102 Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3158, 3257.
103 Melinda Howells, ‘KAP call to abolish Qld Parliamentary committees’, ABC News Online (Australia), 28 October 2013.
104 The 53rd Parliament used the fast-track mechanism for 18 bills while the 54th Parliament used it for 19 bills.
105 Queensland, Parliamentary Debates, Legislative Assembly, 19 November 2013, 3993 (Jarrod Bleijie).
106 Letter addressed to LACSC from the QLS dated 20 November 2013, 1.
107 Letter addressed to LACSC from the Queensland CCL dated 18 November 2013, 2–3.
108 Legal Affairs and Community Safety Committee, Parliament of Queensland, Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Bill 2013 (November 2013) 2.
109 Ibid 23–33.
110 Queensland, Parliamentary Debates, Legislative Assembly, 21 November 2013, 4204, 4238 (Ian Berry).
111 Ibid 4240.
112 Ibid.
113 Ibid 4251 (Peter Wellington). From mid-1998 to mid-2011, Wellington served on the SLC and then on the LACSC from 2012-2015. This length of service probably makes him the most experienced member of any rights-scrutiny committee in any state Australian parliament.
114 Queensland, Parliamentary Debates, Legislative Assembly, 21 November 2013, 4203–6, 4230–5 (Anastasia Palaczszuk).
115 Ibid 4200, 4254–5 (Jarrod Bleijie).
116 Amy Remeikis, ‘Labor's deal with Peter Wellington’, Brisbane Times (online), 5 February 2015, http://www.brisbanetimes.com.au/queensland/labors-deal-with-peter-wellington-20150205-136xj1.html
117 Matthew Killoran, ‘Queensland election 2015: Peter Wellington to push for bill of rights’, The Courier-Mail, (Brisbane), 10 February 2015; Michael Madigan, ‘Labor deal with independent MP Peter Wellington could ease bikie laws’, The Courier Mail, (Brisbane), 10 February 2015. In 2015-16 the LACSC held an Inquiry into the desirability of a Human Rights Act for Queensland, possibly in line with Victoria's Charter. The LACSC was unable to reach consensus on this issue, with committee members divided on party and ideological lines: Legal Affairs and Community Safety Committee, Parliament of Queensland, Inquiry into a Possible Human Rights Act in Queensland, (2016).
118 Crimes (Criminal Organisations Control) Bill 2009 (NSW); Crimes (Criminal Organisations Control) Bill 2012 (NSW); Crimes (Criminal Organisations Control) Amendment Bill 2013 (NSW).
119 NSW, Parliamentary Debates, Legislative Assembly, 2 April 2009, 14440 (Nathan Rees, Premier), 14452 (Kristina Keneally).
120 Ibid 14375–6 (John Hatzistergos). At the time the Labor Attorney-General was a member of the NSW Bar Association and a former member of the Law Society of NSW. Ibid 14372, where Hatzistergos’ dismissal of the Greens’ approach is met with their response that it is in line with the position of both these legal bodies.
121 See the 2002 debates on the establishment of the Legislation Review Committee via the Legislation Review Amendment Bill: NSW, Parliamentary Debates, Legislative Assembly, 18 June 2002, 3256–7 (Paul Whelan); NSW, Parliamentary Debates, Legislative Assembly, 26 June 2002, 3806 (Andrew Tink); NSW, Parliamentary Debates, Legislative Assembly, 27 June 2002, 4157 (Andrew Tink); NSW, Parliamentary Debates, Legislative Council, 25 September 2002, 5288 (Don Harwin).
122 NSW, Parliamentary Debates, Legislative Assembly, 26 June 2002, 3806 (Andrew Tink).
123 NSW, Parliamentary Debates, Legislative Council, 2 April 2009, 14331.
124 For a brief summary of the case, see Head, Michael, ‘What the Haneef Inquiry revealed (and did not)’ (2009) 34 Alternative Law Journal 243–7.CrossRefGoogle Scholar
125 NSW, Parliamentary Debates, Legislative Assembly, 2 April 2009, 14455 (Greg Smith): The Bill is ‘extraordinary in that it takes away citizens’ power. It needs closer scrutiny’. Ibid 14339 (Michael Gallacher).
126 NSW, Parliamentary Debates, Legislative Assembly, 15 February 2012, 8331 (Paul Lynch) quoting NSW, Parliamentary Debates, Legislative Assembly, 2 April 2009, 14455–6 (Greg Smith).
127 NSW, Parliamentary Debates, Legislative Assembly, 15 February 2012, 8334 (Nathan Rees). In April 2014 Smith was demoted from the Baird cabinet, reportedly on this basis: Hasham, Nicole, ‘Liberal MP Greg Smith will not re-contest NSW Seat of Epping’, The Sydney Morning Herald (Sydney), 16 July 2014.Google Scholar
128 NSW, Parliamentary Debates, Legislative Assembly, 15 February 2012, 8333 (Nathan Rees).
129 NSW, Parliamentary Debates, Legislative Council, 14 March 2012, 9487–90. For a peculiar response to Shoebridge's invocation of rights, see the speech of Liberal Parliamentary Secretary for Justice: NSW, Parliamentary Debates, Legislative Council, 14 March 2012, 9492 (David Clarke). Curiously, this speech appears to be defending a bipartisan position of not expressly articulating which aspects of the bill support or protect civil liberties.
130 NSW, Parliamentary Debates, Legislative Assembly, 18 June 2002, 3257 (Paul Whelan).
131 In contrast the LRC is expressly prohibited from analysing policy when scrutinising regulations: Legislation Review Act 1987 (NSW) s 9(3).
132 See Senate Standing Order 24(4) whereby the Leader of the Opposition in the Senate appoints the chairperson.
133 Section 8A(2).
134 Senate Standing Order 188(10).
135 NSW, Parliamentary Debates, Legislative Assembly, 18 June 2002, 3256 (Paul Whelan) (emphasis added).
136 Ibid.
137 NSW, Parliamentary Debates, Legislative Assembly, 15 February 2012, 8343. The Bill was debated in the Legislative Assembly on 15 February 2012 and the LRC tabled its report on 21 February 2012, the day of the Legislative Council debates. The submission of the Law Society of NSW was dated 20 February 2012. Note, however, that the 2012 Act amended the 2009 Act by adding approximately 50 words so the LRC report on the 2009 Bill would have remained useful in this regard.
138 In 2009 the Greens argued that the bill be referred to the Standing Committee on Law and Justice.
139 NSW, Parliamentary Debates, Legislative Council, 25 March 2013, 19159.
140 NSW, Parliamentary Debates, Legislative Council, 2 April 2009, 14347.
141 See ibid 14334, 14361 (Dr John Kaye), 14356, 14386 (Lee Rhiannon).
142 ‘You must be kidding’ was the response of the Hon Dr Peter Phelps: NSW, Parliamentary Debates, Legislative Council, 14 March 2012, 9489.
143 Letter from Justin Dowd, The Law Society of New South Wales, to the Attorney-General, 20 February 2012, 2–3. <https://lawsociety.com.au/cs/groups/public/documents/internetpolicysubmissions/587433.pdf>.
144 Ibid.
145 NSW, Parliamentary Debates, Legislative Assembly, 2 April 2009, 14459–60.
146 (2014) 254 CLR 508 (‘Tajjour’).
147 From the LRC's Digest 4 of 2003 until the end of 2010, the fourth page of each Digest referred to assistance from a ‘Panel of [external] Legal Advisers’ which initially set out a list of 12 well-respected legal experts. This changed when the Liberal Government was elected in 2011, consistent with the Liberal party view, espoused in 2002 debates, that the Committee would be best served by in-house staff: NSW, Parliamentary Debates, Legislative Council, 25 September 2002, 5291 (The Hon Don Harwin).
148 Evans, Carolyn and Evans, Simon, ‘Legislative Scrutiny Committees and Parliamentary Conceptions of Human Rights’ (2006) Public Law 785, 794.Google Scholar This avoidance of the term ‘human rights’ is consistent with the lead speech made by the Liberal Opposition in the 2002 debates: NSW, Parliamentary Debates, Legislative Assembly, 26 June 2002, 3806 (Andrew Tink); NSW, Parliamentary Debates, Legislative Council, 25 September 2002, 5289–92 (Don Harwin).
149 Evans and Evans, above n 149, 801.
150 McNamara, Luke and Quilter, Julia, ‘Institutional Influences on the Parameters of Criminalisation: Parliamentary Scrutiny of Criminal Law Bills in New South Wales’ (2015) 27 Current Issues in Criminal Justice 21.CrossRefGoogle Scholar
151 In the 2009 debates, the Greens proposed 25 amendments with the Liberal Opposition proposing none, giving the 2009 bill bipartisan support. In the 2012 debates, the Labor Opposition proposed 31 amendments, none of which were rights-based, and in the 2013 debates it proposed none. Note that in 2008/9, the Labor Government did not control the Upper House. The 0% of amendments in the 2009 anti-bikie debates does not represent the norm as the Upper House's website indicates that about a quarter of all amendments moved in the House in 2008/09 were agreed to (http://www.parliament.nsw.gov.au/prod/web/common.nsf/key/TheroleoftheCouncil).
152 McNamara and Quilter, above n 151, 35.
153 NSW, Parliamentary Debates, Legislative Assembly, 26 June 2002, 3806 (Andrew Tink).
154 Serious and Organised Crime (Control) Bill 2008 (SA); Statutes Amendment (Serious and Organised Crime) Bill 2012 (SA); Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill 2012 (SA); Serious and Organised Crime (Control) (Declared Organisations) Amendment Bill 2013 (SA); Statutes Amendment (Serious and Organised Crime) Bill 2015 (SA).
155 The SA Liberal party has not held power since March 2002 and has only been in power for 14 years since 1965. On this basis it is considered the least successful opposition division in any Australian state in the last 50 years.
156 South Australia, Parliamentary Debates, House of Assembly, 13 February 2008, 1977.
157 Ibid.
158 Ibid 1979, 2063.
159 Ibid 2047, 2054–5; South Australia, Parliamentary Debates, House of Assembly, 26 February 2008, 2184.
160 South Australia, Parliamentary Debates, House of Assembly, 13 February 2008, 2063.
161 South Australia, Parliamentary Debates, House of Assembly, 26 February 2008, 2188.
162 The Statutes Amendment (Serious and Organised Crime) Act 2015 (SA) empowers parliament to make declarations as to organisations and individuals based on police criminal intelligence.
163 It is understood that the Opposition made a ‘backroom deal’ with the government to withdraw its support for the McLachlan amendments after The Advertiser newspaper reported that ‘drive by shootings’ took place in public between two bikie gangs on 25 July 2015: Jordanna Schriever, ‘Three Rebels Bikies arrested after Comanchero feud triggers drive-by shootings at Smithfield Hotel and Blakeview shops’, The Advertiser (Adelaide), 27 July 2015. This newspaper article was published two days before debate resumed in the Legislative Council on 29 July 2015.
164 South Australia, Parliamentary Debates, Legislative Council, 29 July 2015, 1226.
165 South Australia, Parliamentary Debates, Legislative Council, 30 July 2015, 1272–3.
166 See ‘Rebels with a Cause’ (2006) 26 About the House 47–8.Google Scholar
167 See South Australia, Parliamentary Debates, Legislative Council, 6 May 2008, 2660, 2672 (Sandra Kanck). Both amendments sought to tighten the safeguards provided by the Bill.
168 See for example, South Australia, Parliamentary Debates, Legislative Council, 6 May 2008, 2677 (Stephen Wade), 2759 (Hon Mark Parnell); South Australia, Parliamentary Debates, Legislative Council, 30 July 2015, 1262–3 (Mark Parnell and Andrew McLachlan).
169 In SA's Legislative Council 45 amendments were proposed.
170 Stakeholder tension is particularly apparent in the 2008 and 2015 SA debates. Criticisms are levelled at the legal profession and judiciary (see, eg, South Australia, Parliamentary Debates, Legislative Council, 6 May 2008, 2670, 2676 (Paul Holloway)) and conversely at senior police leadership for pressuring government to bypass traditional community safeguards such as judicial review and other scrutiny mechanisms: South Australia, Parliamentary Debates, Legislative Council, 30 July 2015, 1271 (Andrew McLachlan).
171 Kyam Maher (LLB) joined the Upper House in late 2012 but made no contribution to the 2013 and 2015 debates.
172 South Australia, Parliamentary Debates, Legislative Council, 6 March 2008, 2121.
173 Ibid 2120–1 (emphasis added).
174 See for example, South Australia, Parliamentary Debates, Legislative Council, 3 April 2012, 879 (Stephen Wade).
175 South Australia, Parliamentary Debates, House of Assembly, 29 February 2012, 382–3, 425 (Vicki Chapman); South Australia, Parliamentary Debates, Legislative Council, 3 April 2012, 879 (Stephen Wade); South Australia, Parliamentary Debates, Legislative Council, 5 April 2012, 989–91, 1036 (Stephen Wade).
176 Ibid.
177 The Law Society of SA (LSSA) prefaced each submission by stating that its mandate is to ‘promote the rights of individuals’ or to alert parliament to the ‘curtailment of rights’. In the 2008 debates, the 2008 LSSA submission was dismissed by one Liberal MLC and former lawyer as a ‘little polemic’: South Australia, Parliamentary Debates, Legislative Council (6 March 2008), 2650 (Robert Lawson).
178 (2010) 242 CLR 1.
179 (2011) 243 CLR 181.
180 South Australia, Parliamentary Debates, House of Assembly, 15 February 2012, 77–85 (John Rau, Attorney-General).
181 South Australia, Parliamentary Debates, House of Assembly, 29 February 2012, 412–13, 418–19 (John Rau).
182 (2014) 254 CLR 51.
183 Of the 18 Upper House amendments to the 2015 Statutes Amendment (Serious and Organised Crime) Bill, 11 were government amendments and seven were Family First: South Australia, Parliamentary Debates, Legislative Council, 30 July 2015, 1234–68 (Gail Gago and Robert Brokenshire).
184 South Australia, Parliamentary Debates, House of Assembly, 16 June 2015, 1649 (Isabel Redmond); South Australia, Parliamentary Debates, House of Assembly, 17 June 2015, 1672 (Vickie Chapman); South Australia, Parliamentary Debates, Legislative Council, 2 July 2015, 1144–5, 1149–50 (Andrew McLachlan); South Australia, Parliamentary Debates, Legislative Council, 30 July 2015, 1271 (Andrew McLachlan); South Australia, Parliamentary Debates, Legislative Council, 29 July 2015, 1218 (Mark Parnell).
185 South Australia, Parliamentary Debates, Legislative Council, 29 July 2015, 1218.
186 South Australia, Parliamentary Debates, Legislative Council, 6 March 2008, 2121 (Ian Hunter); South Australia, Parliamentary Debates, Legislative Council, 29 July 2015, 1226 (Andrew McLachlan); South Australia, Parliamentary Debates, Legislative Council, 30 July 2015, 1273 (Andrew McLachlan).
187 South Australia, Parliamentary Debates, House of Assembly, 16 June 2015, 1632 (emphasis added).
188 South Australia, Parliamentary Debates, Legislative Council, 5 April 2012, 994 (Stephen Wade).
189 In 2012 the Liberal Opposition agreed to withdraw its amendments if the government agreed to establish the Crime and Public Integrity Policy Committee (CPIPC) to provide oversight of the Serious and Organised Crime legislative regime: South Australia, Parliamentary Debates, Legislative Council, 29 March 2012, 837 (Stephen Wade); South Australia, Parliamentary Debates, Legislative Council, 1 May 2012, 1038 (Stephen Wade). The CPIPC, established in 2014, is part of SA's ICAC framework. Its remit does not explicitly include rights.
190 George Brandis, ‘The Debate We Didn't Need Have to Have: The Proposal for an Australian Bill of Rights’ in Julian Leeser and Ryan Hadrick (eds), Don't Leave Us with the Bill: The Case Against an Australian Bill of Rights (2009) 27.
191 Carr, Bob, ‘The Rights Trap’ (2001) 17(2) Policy 4.Google Scholar
192 Feldman, ‘Democracy, Law and Human Rights: Politics as Challenge and Opportunity’, above n 18, 98.
193 Hiebert, ‘Legislative Rights Review’, above n 7, 41.
194 Feldman, ‘Parliamentary Scrutiny’, above n 1, 336.
195 Ibid.
196 Kinley, above n 5, 184.
197 Grenfell, above n 30, 35–6.
198 Campbell, Tom, ‘Human Rights Strategies: An Australian Alternative’ in Campbell, et al (eds), Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia (Ashgate, 2006) 319, 334.Google Scholar