Who is making our laws? The separation of powers in 2020

The issue of the separation of powers goes to the core of Australian society. The checks and balances that come with an independent legislature, judiciary, and executive are key to our successful democracy. It’s a process most of us take for granted. However, the way laws are made in modern Australia is changing. It has been happening in small increments that went largely unnoticed until the outbreak of coronavirus.

COVID-19 is a cruel and unpredictable enemy that has forced governments to rush to protect citizens. Rather than waiting for laws to pass the lumbering parliamentary system, the executive arm of government sprang into action, hastily enacting laws under emergency powers. Some have been straightforward; others have been controversial. Delegated biosecurity powers, for example, saw the military arresting people on suburban streets. Federal border closures denied citizens and residents the ability to return home. State border closures have denied some people access to essentials like work, schooling, and healthcare. Mandatory lockdowns restricted freedom of movement overnight. 

It’s not only affecting questions of rights and restrictions. This year, the Commonwealth Treasurer has been delegated power to set rules for the $130 billion JobKeeper scheme. A $40 billion “Advance to the Finance Minister” was also made, which is 400 times any advance made since 2010.

Changes have been fast and furious. In NSW, at the time of writing, there have been two public health orders restricting travel from Victoria, the second of which has been amended 10 times. There have been five separate public health orders made on gathering and movement, nine orders on quarantine requirements, and many others. Although these laws have a large impact on the community, with severe penalties for non-compliance, they bypassed the checks and balances of normal process.

It has prompted experts to raise questions about modern lawmaking, including the validity of executive-made legislation, the checks and balances, and the balance of public safety versus human rights.

Avalanche of legislation

A recent study from the Centre for Public Integrity found that the number of laws being made by ministers, outside of Australia’s federal parliament, has doubled in the last 30 years. From 2013-2018, there were an average of 1,738 acts of delegated legislation made per year. Powers are granted by parliament through statutory rules, by-laws, ordinances, and other instruments that empower the executive to make laws. This type of lawmaking is designed to take care of technical issues, freeing up the parliament to debate matters of policy and principle. It can also be used to give the executive branch of government the power to respond to emergent issues quickly, to protect public safety.

Delegated legislation is efficient and economical, but some argue it flouts the democratic process. Anthony Whealy QC, Chair of the Centre for Public Integrity and a former NSW Court of Appeal judge, says the response to COVID-19 has concentrated delegated powers, meaning ministers and staffers are wielding more power than ever before without parliamentary oversight. In fact, about 20 per cent of delegated legislation is “disallowable”, meaning it cannot be vetoed by either house.

“This is a serious concern,” says Whealy. He explains that his concern is not just due to the fact that executive-made laws can be enacted with no investigation, no formal debate, no policy analysis, no consideration of constituents, and no parliamentary vote. It’s because, in some cases, the executive itself is empowered to determine whether these laws should, or should not, be subject of a disallowance motion. This renders the legislature, the publicly elected arm of government, powerless.

Whealy says action must be taken. 

“First, we need to restrain the avalanche of regulatory executive decision-making, because it’s parliament’s job,” he tells LSJ. “Second, we need to keep that kind of decision-making out of any matters which involve major financial decisions, human rights, and areas of serious government policy. It should be used to tidy up legislation, or enable things to be brought up-to-date without going back to parliament. And I think we should remove altogether the executive power that makes regulations exempt from disallowance. I don’t see the justification for that.”

Questions over scrutiny

Presently, the only formal scrutiny for this type of lawmaking at federal level comes from the Senate Standing Committee for the Scrutiny of Delegated Legislation. It’s a bipartisan committee that reviews about 1,500 articles of delegated legislation each year, which is an enormous undertaking. Whealy believes this alone is not enough to keep these powers in check. He says he would like to see independent oversight of delegated legislation, in the form of a parliamentary inspector or a federal independent commission against corruption, to prevent any potential abuse of power. 

The committee does share his concerns, however. Earlier this year, its members unanimously agreed to conduct an own-motion inquiry into the exemption of executive-made laws from parliamentary oversight, particularly those made in relation to COVID-19. 

Senator Kim Carr, a former cabinet minister who has been a member of parliament for 28 years, is Deputy Chair. He first sat on the committee back in 1993 and says he was drawn back into the conversation because he noted “extraordinary change”.

“I saw that we had troops on the street, and that people were being put into detention, and I started looking at the legal foundations on which that was done. I was somewhat surprised to discover that the legal foundations were identified in the emergency powers regime under the Biosecurity Act,” he says. 

The law he is referring to, which contains some 900 pages, passed Parliament in 2015 after just three hours of discussion. Carr recalls being told it concerned agricultural matters, including protection of crops and livestock. 

It’s physically impossible to read every clause in every piece of legislation, he says, which is why briefs are a critical part of the process. At the time of the vote, however, he says he wasn’t aware that tucked away in sections 474-479 were rules that enabled the Health Minister to make any determination needed in the case of a human biosecurity emergency. Looking back now, he’s frank about this decision.

“I’d participated in a vote to allow a minister of the crown to basically override any law,” he reflects. “The scrutiny made available was grossly inadequate … You may say that officials were complicit in that, in what was clearly an exercise that demonstrates we were thoroughly misled. I would also say I can’t absolve myself, or the other members of parliament, for our negligence.”

The use of this power in relation to COVID-19 led Carr to examine how often this happens – that laws could be passed containing regulations that could not be reviewed by the parliament itself, despite fundamentally altering the civil liberties of citizens and residents. 

“Rising out of this crisis, we’ve got an opportunity to ask people if this is what they actually understood the laws to mean,” he says. “We can look at justifications of emergency powers, and the ongoing appropriateness of those powers.” 

Checks and balances

This issue of delegated legislation has been studied before. The previous committee produced a bipartisan report that made nine recommendations, including things like reviewing existing delegated legislation provisions, having the office of parliamentary counsel create a register so it’s possible to easily find acts of delegated legislation, and automatically including sunset clauses. In Carr’s opinion, they were “extraordinarily inoffensive”, and so reasonable that no-one could regard them as being onerous to implement. Though the government agreed to them all, little else was done. The current inquiry is expected to deliver an interim report in December, and a final report in early 2021, and he hopes this time around it will make a difference to Australia’s democratic process.

“It’s a very foolish person that doesn’t learn from experience. The truth of the matter is this crisis has brought to our attention the nature of how state power operates,” he says. “It relies on prerogatives, not democratic rights … fundamental issues of human rights do warrant a closer examination.”

Philip Ruddock, who spent 43 years as a member of parliament and served as a cabinet minister under the Howard government, takes a different view. He remembers codifying immigration law in the 1980s, and says while the legislation set out a general framework, the details emerged in delegated legislation written by specialist teams. 

“Delegated legislation can be dealt with outside of parliamentary sitting time,” he says. “When they’re getting down to questions of detail – you might not need to discuss broad policy, but if you discover a technical flaw, you’ll want to get it dealt with quickly … You can look at the nature of the material that’s being dealt with and question if that’s a good use of legislative time.”

At the end of the day, he says, it’s the people who are responsible for the members of parliament and the senators. If they make mistakes, they can be held accountable, and they can be voted out. 

“I think sometimes we ought to rely on the people to be the arbiter. I hold that view quite strongly.”

Power and responsibility

Most of the time, delegated legislation ticks away unnoticed in the background. However, the outbreak of COVID-19 and the subsequent wave of public health orders and finance orders have shone a light onto the topic, prompting discussion from a variety of angles. So far, Australians have largely complied with public health orders, despite the impact they have had on their liberties. Dr Amy Maguire, an associate professor in law at the University of Newcastle, says while many see the restrictions on liberty as justified for public health purposes, people will tire of them as time goes on. 

She also notes the absence of a human rights framework in NSW or Australia makes it challenging for the public to engage in discussion about the balance between safety and freedom. Maguire considers Australians to be relatively well informed about law-making, but she tells LSJ she doesn’t think the public understands just how little their rights are protected in law. This is where a statutory framework could make a difference, because it facilitates the development of a human rights discourse and enables community members to advocate for their rights more effectively. 

“When public health orders have conflicted with rights in very notable ways – for example, in relation to the freedoms of assembly and expression – I think many people would be surprised at how broad governmental and police powers are in Australia,” she says. “Civics education should facilitate everyone’s understanding of how they can hold governments to account. This would include educating the community about areas in which protections against abuses are weak or non-existent.”

Potential legal challenges

Some commentators have gone as far as questioning the constitutional validity of disallowance. George Williams, Deputy Vice-Chancellor at UNSW and former Dean of UNSW Law, was one of four signatories to a UNSW-led submission to the senate committee which challenged the constitutional position in relation to delegation of legislative power at the federal level. 

The letter noted that Parliament is the institution responsible for making the law, due to its broad representative nature, the public nature of its debates, and the fact its members are ultimately held accountable by the people. While the separation of powers allows the delegation of power from the parliament to the executive, he says the legislature needs to retain responsibility, because it’s the only arm of government that is representative of the entire Australian constituency.

The UNSW academics recommended two key principles to ensure the executive exercises delegated powers within the limits that parliament intended. First, they said that exemptions from the disallowance process be set out in primary legislation, to ensure Parliament’s role in overseeing delegated law-making isn’t undermined. Second, they said there should be clear justifications for exempting specific categories or types of delegated legislation from the disallowance process.

The volume of new laws being passed through parliament every year means separation of powers isn’t as clear as it once was. Experts agree that each arm of government still has a clear and distinct role. The question is what form that will take in modern lawmaking, especially in the face of future crises.