Rights-Scrutiny Cultures and Anti-Bikie Bills in Australian State Parliaments: ‘A Bill of Rights for the Hell's Angels’

Date01 September 2016
AuthorLaura Grenfell
Publication Date01 September 2016
Laura Grenfell*
This paper analyses how four Australian sta te parliaments debate the rights implications
of anti-bikie bills that restrict various individua l rights. It focuses on three state
parliamentsthose of Victoria , Queensland and New South Waleswhich have
committees that scrutinise all bills for their rights implications and i t compares the
debate in these parliaments with tha t of South Australia where such sys tematic rights-
scrutiny of all bills is absent. The paper considers w hether the existence of a formal
parliamentary committee for rights-scrutiny strengthens or diminishes the process of
parliamentary scrutiny of bills for their rights i mplications. Overall the paper argues
that, regar dless of the system in place, parliamentary rights-scrut iny remains weak in
the four surveyed Australian states when parliaments deb ate law and order bills.
However, this weakness is manifested in d ifferent ways, with full and frank ri ghts-
deliberation deficient in Victoria, Que ensland and New South Wales and systematic a nd
well-informed rights-scruti ny absent in South Australia.
There is fairly general agreement that scrutinising legislation is one of the most important
activities undertaken by the two Houses of Parliament … [T]he object of scrutinising
legislation is to keep in check the tendency of governments to extend their powers, or the
liabilities of citizens, too greatly, or for unacceptable purposes, at the expense of individual
Parliamentary debate offers a public forum for gove rnments to explain and justify
their legislative choices. It is a critical space f or members of parliament, particularly
those in opposition and on the b ackbench, to scrutinise the se choices and ‘to keep in
check the tendency of governments to extend their powers … too greatly, or for
* Associate Professor in Law, University of Adelaide. For their assistance I would like to thank
Associate Professor Gabrielle Appleby, Professor Clem McIntyre, Sarah Moulds, Dr David
Plater, Dr Anna Olijnyk, Holly Ritson, David Hunt and Scott Hunt. I would also like to thank
the organisers of the 2015 ANU Public Law Weekend at which this paper was first presented.
1 David Feldman, ‘Parliamentary Scrutiny of Legislation and Human Rights’ [2002] Public Law
323, 336.
364 Federal Law Review Volume 44
unacceptable purposes, at the expense of individ ual freedom’ and other human rights.2
It is generally agreed that parliamenta ry scrutiny committees have the potential to assist
parliaments in this process of post-intr oduction rights-scrutiny of legisla tion, as the
scrutiny process increases the likelihood that legisla tion will only be passed after proper
consideration, full debate in parliament and exposure to the public.3 There are, however,
varied views as to how, when and to what degree these committees can or should assist
parliaments in this way. According to David Feldma n, ‘[t]he primary role of scrutiny
committees is to examine particular aspects of measures brought before Parliament, and
to enable the two Houses to deal wit h them in a well-informed and systematic way.’ 4
David Kinley agrees, but he also envisa ges a larger role for scrutiny co mmittees by
arguing that ‘the key to the ef fective protection of huma n rights in countries su ch as
Australia lies in the exertion of a sustained preventive influence over the executive’5
and, in his view, a ‘parliamentary-based scrutiny sc heme’ should be equipped with
‘some form of sanctioning p ower’ to do this.6 Kinley’s view is based on the long shadow
cast by the executive over parliament and its pr ocesses.
Parliamentary rights-scrutiny culture has been topical at the federal level since the
Labor Government respo nded to the recommenda tions made by the 2009 N ational
Human Rights Consultation Report by establishing the federal Parliamen tary Joint
Committee on Human Rights (PJ CHR) in 2010. The PJCHR complements the work of
the federal Senate Standing Committee on the Scrutiny of Bills (SSCSB), Australia’s
oldest rights-scrutiny committee for bills. In resp onding to the 2009 report, the Labor
party rejected the recommendation to enact a Bill of Rights, following a well-wor n path
in Australia of favouring instead the creation of a new parl iamentary scrutiny committee
without giving it any ‘sanctioning po wer’ or other tools to counter the i nfluence of the
This paper investigates what impact formal rights-scrutiny me chanisms, such as
parliamentary rights-scrutiny com mittees, have on deba te in state parliaments in
Australia beyond the committee stage: whether they invigorate or mute debate on the
rights-implications of bills and whether they lead to amendments. In regard to
amendments, it tests Janet Hiebert’s findi ngs in the UK context tha t ‘[o]nce the
[executive] government ha s decided on a course of action [through intr oducing a bill] …
it is generally reluctant to agree to amendments’ in p arliament because to do so could
lead to the reopening of inte rnal divisions and signal government weakness. 7
2 Ibid.
3 See Australian Law Reform Commission, Traditional Rights and FreedomsEncr oachments by
Commonwealth Laws, Report No 129 (2016) Ch 3.
4 Feldman, ‘Parliamentary Scrutiny’, above n 1, 336.
5 David Kinley, Parliamentary Scrutiny of Human Rights: A Scrutiny Neglected?’ in Philip
Alston (ed), Promoting Human Rights Through Bills of Rights: Comparative Perspectiv es (Oxford
University Press 1999) 158, 184.
6 Ibid 183.
7 Janet Hiebert, ‘Legislative Rights Review: Addressing the Gap between Ideals and
Constraints’ in Murray Hunt, Hayley Hooper and Paul Yowell (eds), Parliament and Human
Rights: Redressing the Democratic Deficit (Hart, 2015) 39, 52. For an analysis of the complexity
of amendments and the ability of parliaments to exert substantial influence in the policy
process, see Meg Russell, Daniel Gover and Kristina Wollter, ‘Does the Executive Dominate
the Westminster Legislative Process?: Six Reasons for Doubt’ (2016) 69 Parliamentary Affairs
2016 Rights-Scrutiny Cultures and Anti-Bikie Bills in Australian State Parliaments 365
This paper compares four Australian state parlia ments, in Victoria, New South Wales
(NSW), Queensland, and South Australia , by focussing squarely on their deba tes
recorded in Hansard and any relevant reports referred to in these debates. By focussing
on Hansard, this paper narrows its scope to the post-introduct ion phase of bills, that is,
rights-scrutiny once a bill has been introduced into Parliame nt. While the pre-
introduction phase of a bill can be the site of active rights-scrut iny, this phase is one of
executive scrutiny, largely hidden from public view, not parliamentary scrutiny. As
parliamentary debate is recorded through Hansard, this colours the debate and makes
the debate more performative. For this reason, frank engagement is often difficult to
discern in Hansard. The public but guarded nature of parliamentary debate is contrasted
with the behind-closed-door s nature of scrutiny by par liamentary committees, which
often succeeds in removing the performative nature of Parliament and allowing for more
frank and even non-partisan engage ment and deliberation.
‘Anti-bikie’ bills are a vehicle for this surve y of state parliamentary committe es
because they have been enacted in almost every jur isdiction across Australia and they
make large incursions into human rig hts. As Gabrielle Appleby and John Williams point
out, ‘law and order is one of the few areas of responsibility over which the states
continue to hold the reins’ given the expansion of federal legislative power.8 Anti-bikie
bills restrict a large swathe of rights including t he freedom of association, the freedom
of speech, the right to privacy, the right to property, the right to a fair hearing and the
right against self-incrimination. 9 Ant i-bikie legislation shows the triangulation of
interests at stake in the criminal law as legislators ideally seek to take into account (and
balance) the rights of defendants, victi ms and the public generally.
Like a majority of government bills introduced into Australian parliaments,10 l aw
and order bills generally attract bipa rtisan support. With one exceptio n, all anti-bikie
bills under scrutiny in this paper received bipa rtisan political support although some
internal division within the major parties is apparent. At a broad level, most major
parties are keen to appear ‘tough on crime’, whether in government or in opposition,
and this may affect their interest in scrutinising the rights implications of anti-bikie bills.
However, in Queensland’s 2009 anti-bikie debates, the Liberal National Party (‘LNP’)
Opposition refused to give its support to the bill. W hile the Opposition lead speaker in
the 2008 South Australian debates openly articu lated ‘hesitations’ in giving support to
the bill, 11 Oppositi on efforts to scrutinise a nti-bikie bills were met with colour ful
political responses, such as that t hey are writing ‘a bill of rights for the Hell’s Angels
8 Gabrielle Appleby and John Williams, ‘A New Coat of Paint: Law and Order and the
Refurbishment of Kable’ ( 2012) 40 Federal Law Review 1, 1.
9 For an analysis of the right- impact of anti-bikie laws in Queensland, see Harry Hobbs and
Andrew Trotter, ‘How Far Have We Really Come? Civil and Political Rights in Queensland’
(2013) 25 Bond Law Review 166.
10 For example, Stone explains that even the Abbott-led Liberal National Opposition in the
2010-2013 Commonwealth Parliament, which had a higher rate of negative voting than
previous Oppositions (1996-2010), supported nearly 80% of bills: Bruce Stone, ‘Opposition in
Parliamentary Democracies: A Framework For Comparison’ (2014) 29 Australasian
Parliamentary Review 19, 25. This indicates that bipartisan support is the norm in Australian
11 South Australia, Parliamen tary Debates, House of Assembly, 13 February 2008, 20534 (Isobel

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