KEY ELECTION ISSUES
Enhancing accountability and transparency in the law-making process DR SARAH MOULDS
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021 was a year of high drama for the South Australian Parliament. There were allegations of harassment, corruption and conflicts of interest, lightning-fast legislating, a Speaker deposed, and procedures and conventions radically altered, before we even factor in the COVID-19 pandemic. The rolling sense of chaos and disorder that characterised South Australian politics in 2021 has been building for some time, with pre-existing concerns about the integrity of parliamentarians, the continued legitimacy of extraordinary delegation of lawmaking power, and the absence of respect for rule of law standards. Even for the most seasoned members of the legal profession, it is increasingly difficult to understand who is making the law, what the law actually is, and who is responsible for making sure everyone sticks to the rules. It is easy to feel like these problems are intractable and unavoidable in the context of the COVID-19 pandemic, but there are practical things we could do right now to begin to restore this breach of trust and to highlight those many parliamentarians who act with integrity and listen to their electorate. These include measures that would promote more consistent parliamentary scrutiny of proposed legislation, impose clear limits and safeguards around executive law-making, and improve the community’s access to and understanding of changes to laws that affect their daily lives. The Law Society of South Australia
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considers these reforms to be essential to facilitating meaningful public engagement with the South Australian Parliament, and to promoting compliance with rule of law standards. Moreover, these reforms have the potential to improve the quality of lawmaking in this State, by facilitating early expert input in legislative design and identifying and addressing unintended or disproportionate consequences before they lead to costly litigation or embarrassing public inquiries. Some of the specific recommendations advanced by the Law Society include: The establishment of a Scrutiny of Bills and Delegated Legislation Committee. South Australia is the only Australian jurisdiction without such a Committee, leaving a significant gap when it comes to the provision of accessible, reliable and independent information about proposed new laws for the public and the Parliament. A Scrutiny of Bills Committee would provide much needed systematic consideration of each and every Bill introduced into parliament in light of a set of common law rights (such as that used by the two Senate scrutiny committees and in the NSW and Victorian parliaments) and/or a set of human rights (such as that used in other jurisdictions such as the Commonwealth Parliament, Victorian Parliament, ACT Parliament, NT Parliament and Queensland Parliament). The establishment of a Scrutiny of Bills Committee has also been recommended by
the Select Committee on the Effectiveness of the System of Committees in its Final Report tabled on 25 August 2021. A review of the Subordinate Legislation Act 1978 with a view to raising the standards and requirements for making delegated legislation in SA. The South Australian response to the COVID-19 pandemic has included an unprecedented transfer of lawmaking power away from the parliament and towards the executive. While this approach may have been effective and appropriate at the beginning of the pandemic, fissures are now beginning to show. The range of complex policy considerations that must now form part of our response to the pandemic rightly fall within the bailiwick of Parliament. No longer can we continue to look solely to one or two highly competent but singularly focused senior public officers to forge a pathway out of this broad ranging crisis. Clarifying the procedures for delegating lawmaking power, and preserving parliamentary oversight of such powers, is one way to begin to restore the separation of powers that has defined South Australia’s legal and constitutional character. Proper resourcing of Committees tasked with reviewing proposed legislation, including delegated legislation, to ensure these Committees can undertake meaningful and robust reviews of proposed legislation. Parliamentary committees are an
