You are required to write a descriptive critical review of the following academic article:
Mulcahy, S., and Seear, K. (2022). On tables, doors and listening spaces: Parliamentary human rights scrutiny processes and engagement of others.Australian Journal of Human Rights,28(2), 286-307.
The descriptive critical review will need to include:
- An introduction and conclusion. These should be short and sharp. The introduction should identify the fact that you are doing a review of the article, and mention both the author and the article you are reviewing. Also identify here (with a sentence) the significance of the article;
- A summary of the author’s argument;
- Identification of the significance of the argument. To answer this, try to answer the following questions:
- Why is this argument important?
- How does it contribute to wider debates about human rights in Australia?
- Use of scholarly sources. A minimum of 5 scholarly sources need to be used. This does NOT include the review article, which must also be cited in the references list;
- A reference list/bibliography;
- APA7 (in-text) referencing. The in-text referencing is counted in the word count. The references list is not included in the word count.
On tables, doors and listening spaces: parliamentary human rights scrutiny processes and engagement of others Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=rjhu20 Australian Journal of Human Rights ISSN: (Print) (Online) Journal homepage: https://www.tandfonline.com/loi/rjhu20 On tables, doors and listening spaces: parliamentary human rights scrutiny processes and engagement of others Sean Mulcahy & Kate Seear To cite this article: Sean Mulcahy & Kate Seear (2022) On tables, doors and listening spaces: parliamentary human rights scrutiny processes and engagement of others, Australian Journal of Human Rights, 28:2-3, 286-307, DOI: 10.1080/1323238X.2022.2135677 To link to this article: https://doi.org/10.1080/1323238X.2022.2135677 Published online: 26 Oct 2022. Submit your article to this journal Article views: 274 View related articles View Crossmark data Citing articles: 1 View citing articles https://www.tandfonline.com/action/journalInformation?journalCode=rjhu20 https://www.tandfonline.com/loi/rjhu20 https://www.tandfonline.com/action/showCitFormats?doi=10.1080/1323238X.2022.2135677 https://doi.org/10.1080/1323238X.2022.2135677 https://www.tandfonline.com/action/authorSubmission?journalCode=rjhu20&show=instructions https://www.tandfonline.com/action/authorSubmission?journalCode=rjhu20&show=instructions https://www.tandfonline.com/doi/mlt/10.1080/1323238X.2022.2135677 https://www.tandfonline.com/doi/mlt/10.1080/1323238X.2022.2135677 http://crossmark.crossref.org/dialog/?doi=10.1080/1323238X.2022.2135677&domain=pdf&date_stamp=2022-10-26 http://crossmark.crossref.org/dialog/?doi=10.1080/1323238X.2022.2135677&domain=pdf&date_stamp=2022-10-26 https://www.tandfonline.com/doi/citedby/10.1080/1323238X.2022.2135677#tabModule https://www.tandfonline.com/doi/citedby/10.1080/1323238X.2022.2135677#tabModule ARTICLE On tables, doors and listening spaces: parliamentary human rights scrutiny processes and engagement of others Sean Mulcahy and Kate Seear Australian Research Centre in Sex, Health and Society, La Trobe University, Bundoora, Victoria, Australia ABSTRACT According to some scholars, it is essential that parliamentary human rights scrutiny processes allow for engagement with and scrutiny from civil society actors. There has, however, been limited examination of how parliamentary human rights scrutiny processes unfold in Australia. Where does the work of rights scrutiny take place, who has a seat at the table, and how, precisely, does scrutiny work unfold? In this paper, we explore these questions, drawing on in-depth qualitative interviews conducted with former and current members of parliament, their staff and others directly involved in the scrutiny process. We explore their accounts of the scrutiny process, focusing on their descriptions of where and how committees do their work, who is at the table, who speaks and who listens. Drawing on Kay Lalor’s work on listening and Sara Ahmed’s work on being at the table, we consider how stakeholders attribute significance to doors, tables, speaking and listening. We argue that the different spaces and voices at play have a crucial role in establishing human rights norms within parliament; in other words, human rights is shaped by spaces and voices. This has implications for the credibility, integrity and rigour of parliamentary human rights scrutiny processes. KEYWORDS Human rights; parliament; drugs; listening; doors; tables Introduction Parliamentary human rights scrutiny involves the assessment of proposed laws for their compatibility with human rights. This is usually undertaken by a parliamentary commit- tee: sometimes a stand-alone human rights committee (as in the Commonwealth parlia- ment); sometimes by a stand-alone scrutiny committee (as in the Australian Capital Territory and Victorian parliaments); and sometimes by a portfolio committee (as in the Queensland parliament). The committee is comprised of members of parliament who undertake scrutiny alongside their other parliamentary roles. Some—and often the majority—of members of the committee are also members of the government and thus must balance their duties as government members with their service to the parlia- mentary committee. Whilst all committees can receive submissions from the public, including civil society actors and organisations, on human rights compatibility of proposed laws, committees © 2022 Australian Human Rights Centre CONTACT Sean Mulcahy
[email protected] AUSTRALIAN JOURNAL OF HUMAN RIGHTS 2022, VOL. 28, NOS. 2–3, 286–307 https://doi.org/10.1080/1323238X.2022.2135677 http://crossmark.crossref.org/dialog/?doi=10.1080/1323238X.2022.2135677&domain=pdf&date_stamp=2023-01-12 http://orcid.org/0000-0001-9200-054X http://orcid.org/0000-0002-0886-7069 mailto:
[email protected] http://www.tandfonline.com take different approaches to calling for and considering public submissions. Scrutiny- based committees rarely hold public inquiries, whereas inquiry-based committees such as portfolio committees often do. Sarah Moulds argues that: Whether specifically assigned a rights-protecting role… or performing a broader inquiry function… parliamentary committees are a key aspect of Australia’s parliamentary rights pro- tection…Within this model, parliamentary committees provide the most practical forum for detailed consideration of the purpose, content and rights-impact of proposed new laws. They also provide a source of concrete recommendations for legislative or policy change that reg- ularly has the effect of improving the rights-compliance of… laws.1 In this paper, we examine both forms of committee and the discussion of human rights therein on the basis that, as Moulds goes on to argue, ‘the role these committees play in collecting, presenting and analysing different views on the merits of proposed changes to the law can be significant and should not be ignored by those seeking to evaluate or reform Australia’s parliamentary model of rights protection’.2 Engagement with and scrutiny from civil society actors is seen as important to parlia- mentary human rights scrutiny.3 Indeed, Moulds argues that the committee process can provide ‘a vital connection between citizen and the state on the development of laws and policies that may have a direct impact on their individual rights’.4 There has, however, been limited examination of how parliamentary committees engage with outside actors when undertaking human rights scrutiny. How do these processes unfold in Aus- tralia? How do those who participate in them, such as parliamentarians, describe the process, including the nature and extent of discussion, deliberation and debate about rights? Where does the work take place, who has a seat at the table when it comes to scru- tinising human rights, and how, precisely, does scrutiny work unfold? In what follows, we explore these questions, drawing on in-depth qualitative interviews we conducted with thirty stakeholders, including former and current members of parliament, their staff and others directly involved in the parliamentary process (including human rights advi- sors to scrutiny committees, scrutiny committee staff and parliamentary counsel). We explore their accounts, focussing on their descriptions of where and how committees do their work, who gets invited to sit at the table, who speaks and who listens. In doing so, we draw from Kay Lalor’s work on listening,5 alongside Sara Ahmed’s work on being at the table.6 In summary, we argue for the need to pay attention to who is —and who is not—engaged in the scrutiny of legislation for compatibility with human rights through parliamentary processes. We also argue for the need to recognise that meanings, values and beliefs ascribed to human rights are not settled but are constantly in flux, according to whose voices are heard and who is involved in the decision-making that establishes human rights norms. 1Sarah Moulds, ‘Parliamentary Committees Facilitating Parliamentary Deliberation: A Case Study of Marriage Equality Reform’ in Julie Debeljak and Laura Grenfell (eds), Law Making and Human Rights: Executive and Parliamentary Scrutiny Across Australian Jurisdictions (Lawbook Co 2020) 748–749. 2Ibid 750. 3Laura Grenfell and Julie Debeljak, ‘Future Directions for Engaging with Human Rights in Law-making: Is a Culture of Jus- tification Emerging across Australian Jurisdictions?’ in Julie Debeljak and Laura Grenfell (eds), Law Making and Human Rights: Executive and Parliamentary Scrutiny Across Australian Jurisdictions (Lawbook Co 2020) 819. 4Moulds (n 1) 749. 5Kay Lalor, ‘‘Listening Intently’ to LGBTQI Lives: Diplomatic Narratives of Listening and Hearing in LGBTQI Rights’ (2020) 24 Law Text Culture 302. 6Sara Ahmed, Complaint! (Duke University Press 2021). AUSTRALIAN JOURNAL OF HUMAN RIGHTS 287 Background and theory The scrutiny committee of parliament is valued by many as ‘an important avenue for pro- tecting human rights and parliamentary accountability’.7 One of Australia’s leading aca- demics on human rights law, George Williams, writing before the introduction of parliamentary human rights scrutiny regimes in Australia, highlights the dual roles of scru- tiny committees as follows: A Parliamentary committee would serve two purposes. It would vet legislation before enact- ment, reducing the likelihood of… legislation being found invalid by a court. It would also build Parliamentarians into the rights protection process, contributing to a greater under- standing of rights issues by politicians and, through media coverage of committee delibera- tions, by the people. By inviting public submissions, it would give individuals and community groups a means of contributing to the deliberative process.8 These optimistic augurations need to be tempered: most particularly, committee delib- erations are held behind closed doors. Indeed, in later writing on the Commonwealth par- liamentary human rights scrutiny committee, Williams and Daniel Reynolds noted that ‘despite the possibility that good work is going on behind closed doors and in parliamen- tary corridors… public awareness of the scrutiny regime appears to be low’.9 However, the possibilities of the public contributing to the deliberative process—though difficult in practice—do remain. It is a possibility that another leading human rights scholar, Frank Brennan, foresaw in his call for such a parliamentary committee to conduct public hearings and solicit public comment on proposed legislation.10 As Bryan Horrigan further argues, democratic systems of government require the ‘development of greater opportunities for engaging citizens and non-government actors in aspects of the law- making process such as Parliamentary scrutiny work’11; this is part of producing a rights culture. Horrigan suggests ‘some degree of specifically targeted extra-Parliamen- tary consultation by parliamentary scrutiny committees, at least with individuals and groups with special expertise and interests’.12 Scholars have noted that scrutiny commit- tees tend to seek public input on an ad hoc basis, with the exception of Queensland, where portfolio committees undertake scrutiny and also assess the policy dimensions of legislation.13 To explain, in Queensland, portfolio committees have the dual function of examining each Bill in terms of both its policy effect and human rights compatibility,14 7Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 (2015) 181 citing Victorian Council of Social Service, Submission No 64 to 2015 Review of the Charter of Human Rights, June 2015, 25. 8George Williams, The Case for an Australian Bill of Rights: Freedom in the War on Terror (University of New South Wales Press 2004) 85. 9George Williams and Daniel Reynolds, ‘The Operation and Impact of Australia’s Parliamentary Scrutiny Regime for Human Rights’ (2015) 41(2) Monash University Law Review 469, 494–496. 10Frank Brennan, Legislating for Liberty: A Bill of Rights for Australia? (University of Queensland Press 1998) 11. 11Bryan Horrigan, ‘Improving Legislative Scrutiny of Proposed Laws to Enhance Basic Rights, Parliamentary Democracy, and the Quality of Law-making’ in Jeffrey Goldsworthy (ed) Protecting Rights Without a Bill of Rights: Institutional Per- formance and Reform in Australia (Taylor & Francis 2006) 66. See also Peter Bayne, ‘Pre-enactment Dialogue about Pro- posed Laws under the Influence of the Human Rights Act 2004 (ACT)’ (Assessing the First Year of the Human Rights Act Conference, Australian National University, 29 June 2005) 2. 12Horrigan (n 11) 93. There is less focus on public engagement in his later examination of parliamentary human rights scrutiny: Bryan Horrigan, ‘Reforming Rights-based Scrutiny and Interpretation of Legislation’ (2012) 37(4) Alternative Law Journal 228. 13Grenfell and Debeljak (n 3) 812. 14Parliament of Queensland Act 2001 s 93. 288 S. MULCAHY AND K. SEEAR whereas in the Commonwealth, Australian Capital Territory and Victoria, scrutiny commit- tees have the sole function of examining each Bill in terms of its human rights compat- ibility and/or compatibility with legislative principles. Some have described this as a difference between ‘technical scrutiny’ and ‘policy scru- tiny’15 and, further, that public inquiries and submissions processes tend to be a function of the latter whereas the former lends itself to ‘behind the scenes’ operations.16 This dis- tinction between technical and policy scrutiny is popular in the literature on parliamen- tary scrutiny systems,17 which also purports that policy scrutiny is deliberative and technical scrutiny is authoritative.18 However, in our interviews with stakeholders involved in parliamentary human rights scrutiny we found that this distinction is much more blurred, with one interviewee remarking that ‘the reality is there is a bit of a blur between [technical issues and policy issues…] but nevertheless they try and hold that line’. Noting this blurred line, this article challenges the presumption that technical scru- tiny committees do not serve a deliberative function that lends itself to public inquiries and submissions and seeks to explore the extent to which both technical and policy scru- tiny committees in the Australian Capital Territory and Victorian parliaments engage outside publics in their human rights scrutiny work. There have been regular calls for technical scrutiny committees to hear more public submissions. For example, Michael Brett Young, in his review of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic), recommended that the Victorian Scru- tiny of Acts and Regulations Committee invite submissions from individuals and organis- ations on Bills and refer to the content of these submissions in its reports.19 In Brett Young’s view, this would allow for and facilitate greater public engagement, participation and input.20 Furthermore, it could contribute to ‘discussion about the human rights impact of legislation and less rights-restrictive alternatives’.21 The Committee’s implemen- tation of this recommendation has been piecemeal at best. There are issues that affect the Committee’s capacity to consider submissions. First, there is the practice whereby com- mittees often operate according to quite tight timelines, a problem which has been high- lighted both in the review and by the Committee’s human rights legal advisor.22 Second, there is the issue, as one interviewee explained to us, that ‘submissions aren’t written by people who are attuned to… the committee’s scrutiny ground’. As a result, submissions may raise policy issues that fall outside the remit of the Committee, being technical and human rights scrutiny. That is in part why Grenfell and Debeljak suggest that human rights culture requires an informed public debate on the human rights impact of legis- lation.23 However, it also requires a public debate. As they note, public engagement can increase transparency, strengthen the culture of justification and ensure a