Enhancing accountability and transparency in the law-making

Enhancing accountability and transparency in the law-making process

DR SARAH MOULDS

2021 was a year of high drama for the South Australian Parliament. There were allegations of harassment, corruption and confl icts 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 diffi cult 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 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 specifi c 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 signifi cant 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, fi ssures 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 offi cers 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 defi ned 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

essential component of our parliamentary culture that must be preserved and protected. These committees – which can be comprised of members from one or both houses, and from the full range of political parties - provide parliamentarians with the space to deliberate and examine executive decision making, as well as providing deliberative forums for parliamentarians to engage directly with experts and with those with diverse lived experiences that may be acutely relevant to proposed laws or policies under consideration. Increased investment in the South Australian parliamentary committee system is essential to ensure that these bodies can continue to perform their important functions, have access to high quality support and advice, and embrace innovative practices and technologies to reach out to a diverse range of South Australians including those previously marginalized from the parliamentary lawmaking process.

The implementation of a Parliamentary policy to ensure proper public consultation on all proposed legislation, and that establishes an agreed framework in relation to timeframes and processes of consultation.

The lightning-fast pace at which the South Australian Parliament introduced, debated and enacted significant legislation in 2021 rendered thoughtful consideration by representative bodies, industry groups, experts or community members completely impractical. While there will always be the need to enable ‘emergency’ lawmaking, it is critical that the starting point for the introduction of new legislation includes a commitment to facilitating meaningful public consultation, and ongoing sharing of information that explains and justifies the need for the proposed new law.

When viewed in isolation, these recommendations may seem boring and dry, focused as they are on parliamentary procedure rather than substantive rights issues. However, they go to the heart of our representative democracy, and our constitutional character. If the community cannot access reliable information about the laws being made in our State, or cannot identify a legitimate pathway or forum to raise their genuine concerns or perspectives on a proposed law, they may turn to less productive platforms or spaces to vent their frustrations or voice their misunderstandings. This in turn risks creating an environment where the people are disconnected from their parliament, and where lawmakers escape scrutiny or accountability for the decisions they make. 2022 provides an important opportunity to reform and reset, and to restore public trust in our most central of public institutions. Let’s hope the State Election helps to focus the minds of our politicians on these important recommendations and reforms.

Dr Sarah Moulds is a Senior Lecturer in Law at the University of South Australia and Director of the Rights Resource Network SA. B