By Christopher Knaus, originally published by the Guardian on the 28th of September.
Australian ministers are increasingly bypassing parliament to create laws, new research shows, prompting warnings of a “dramatic” concentration of power in the hands of the executive.
Analysis from the Centre for Public Integrity suggests the use of delegated legislation – the passing of laws by ministers or other office-holders, rather than through parliament – has doubled in the past 30 years.
Delegated legislation was passed 872 times each year on average between 1983 and 1988.
That number rose to 1,738 on average each year between 2013 and 2018.
Delegated legislation is often necessary. It has enormous value in reducing delays when adjusting small administrative details and creating flexibility in areas of law that are likely to be subject to frequent change.
But the Centre for Public Integrity chair, Anthony Whealy, said his body’s research also suggested “a dramatic increase” in major policy decisions being made without any parliamentary scrutiny.
“Ministers are spending billions of dollars of public money without parliamentary oversight,” Whealy said. “Their decisions affect the lives of millions of everyday Australians – on everything from who is eligible for jobkeeper payments to what a $40bn fund is spent on.”
Delegated legislation is able to be scrutinised through bodies such as the Senate Standing Committee for the Scrutiny of Delegated Legislation and can, in most cases, be overturned by parliament using an effective veto power.
Parliament can nullify delegated legislation by using its powers of disallowance or by passing primary legislation.
But in some cases such disallowance is not possible, including for powers related to the current Covid-19 health emergency.
Relatively recent changes to the Biosecurity Act gave the health minister sweeping new coercive powers when a human biosecurity emergency has been declared.
Such powers include restricting movements, closing businesses and evacuating certain locations.
Those powers are not disallowable, despite the huge impact they can have on Australians’ lives.
“In practice, the health minister or delegated officials could require the closure of premises such as shopping centres or sporting facilities,” University of Newcastle legal and human rights experts Amy Maguire and Bin Li wrote in March. “The potential restrictions could have a far-reaching impact on people’s daily lives.”
Whealy said the concentration of power in the hands of the executive was made more dangerous by the lack of an independent agency able to investigate corruption or ministerial misconduct.
The federal government promised two years ago to introduce such a body via its Commonwealth Integrity Commission model – a model roundly criticised by experts as weak and narrowly-focussed. But the government has since dragged its feet, most recently using the Covid-19 crisis to explain why it hasn’t yet produced draft legislation.
“The commonwealth parliament should hold the government to account for its policies and spending,” Whealy said. “Instead we’re seeing ministers and their staffers wielding more unchecked power than ever before.”
“Unchecked executive power needs to be reined in by increasing parliamentary scrutiny of delegated legislation, and establishing a National Integrity Commission,” he said.