Democratic and Judicial Review of Enacted Laws in Australia: A Case Study of the Rights Scrutiny Work of Australian-Parliamentary Committees

This article explores the relationship between different forms of review of enacted legislation in Australia and provides fresh perspective from which other parliamentary democracies may consider the role of parliamentary committees play in rights protection. Using three case study examples from Australia, this article explores the concept of democratic post-legislative scrutiny and its relationship with other forms of review of enacted laws, including judicial review. The article challenges the conventional view that parliamentary models of legislative scrutiny are inherently vulnerable to executive dominance, and argues that democratic review of enacted laws, particularly that conducted by parliamentary committees, has distinct advantages over judicial or tribunal-based review of enacted laws, and provides beneficial supplement to other forms of rights protection in Australia. The article argues that the flexibility and responsiveness of Australian forms of parliamentary post-legislative scrutiny, that are decidedly lacking in structured procedural frameworks, make the case studies particularly interesting to Canadian scholars and practitioners as they underscore the benefits of direct engagement with citizens and experts in the process of post-legislative scrutiny, when compared to other more tightly controlled forms of legislative review. In this way, this article responds to the long-standing scholarship in Canada relating to the increasingly deteriorating capacity of members of Parliament to act as legislators rather than government cheerleaders when it comes to parliamentary scrutiny of proposed and existing laws.