15 December 2008
An Urgent Submission
It's like the cricket. You're watching it on the telly, then you have to leave the room for whatever reason. Undoubtedly, when you return, there have been 2 or 3 wickets lost in your absence. So I was in Sydney last week at the Law and Society Association Australia and New Zealand's 25th annual conference: W(h)ither Human Rights? And when I returned, I found that the government had passed a number of Bills under urgency. The circumvention of the public submission process through Select Committees is particularly egregious. The value of public examination of legislative proposals is self-evident. Palmer and Palmer refer to this step as "one of the most important features" of our legislative process (Bridled Power, 2005, 4th ed, p 194). Some commentators suggest an essential element of the Rule of Law is the ability for the public to participate in its development. As Brian Tamanaha says: "Law obtains its authority from the consent of the governed. ... Rational democratic mechanisms must accord everyone affected by the law an equal opportunity to participate, and must secure everyone's consent." (On the Rule of Law, 2004, p 99) The mere fact that the proposal has been foreshadowed in an election manifest (to whatever degree) does not obviate the need for this scrutiny. While, at best, the broad policy may have some implied mandate (which is arguable here), there are matters of detail and implementation that are worthy of scrutiny. And, the process of participation in the development has some intrinsic value in itself. It's disappointing to see that there are plans to pass further proposals through all stages under urgency this week.