Rafferty has taken charge of the ministerial decision making process.

While confusion over the supervision of quarantined returning travellers by private security firms in Victoria may have arisen from exceptional circumstances, a broader question concerning the unfettered exercise of Ministerial (Executive) power has come to the forefront of governing in this country.At stake, as seen, are due process and the liberty of the individual citizen.

On the Radio National (ABC) Breakfast program on 28th September, a former justice of the NSW Supreme Court and chairman of the Centre for Public Security, Mr Anthony Whealy QC, drew attention to the increasing amount of delegated legislation permitting bureaucrats to virtually write laws affecting citizens’ rights without being subject to review or disallowance by Parliament.

The trend is partly due to the complexity of government in the modern state, the lack of Parliamentary time for close and careful examination of voluminous legislation, and a tendency to defer unreasonably to Executive override in matters of government, particularly as they relate to security.

Against that it is said that we have too many parliamentarians who, whether as backbenchers or otherwise, should make more time to ensure that excessive and unsupervised executive power should not slip through primary legislation and allow for its rewriting or expansion in the form of subordinate legislation or regulation.

Mr Whealy noted that this was a relatively recent phenomenon. Indeed it is. Decades ago the courts strictly supervised delegated legislation and delegated powers in general. The prevailing rule was that a delegate may not delegate, which means that the exercise of a delegation must be confined strictly within the boundaries of the delegation – its limits and purpose. To exceed those limits invalidates its exercise (ultra vires). But there is so much delegation today that it is almost beyond effective supervision, whether by the courts or the empowering authority itself.

It might also be noted that a number of statutes expressly include provisions to prevent a house of the Parliament disallowing offending regulations, which is particularly dangerous where the Executive itself may be unclear as to what exactly it was intending to permit or not permit by way of regulation.

While the practice may have increased out of hand, the courts over this time have developed a substantive body of law in response, now known generically as Administrative Law. An early pioneer of that was the late Mr Justice Denning, then Master of the Rolls in Britain, who was mindful of the abuses of executive power then coming to the fore, with grievous assaults on basic human rights and property interests. This new body of law – essentially common law and prerogative writs – is extensive but the opportunities for its deployment have been diminishing as governments have sought ways and means of excluding or suppressing resort to the courts where previously that might have been the norm or an unquestioned right in a properly working democracy.

An area where derogations from due process is becoming egregious is in regard to ‘national security’ where laws, whether primary or subordinate, preclude an apprehended person from contacting a lawyer, or informing close family of their detention and the alleged reason for it, and in due course denying the accused the admission of certain evidence in their defence – sometimes in secret proceedings. While the law in some cases may be explicit in this regard, in others it may be founded on an improper extension of a primary power, the very matter now causing concern.

There have been situations during the current pandemic where either the police or government personnel have exercised delegated powers affecting the rights and movement of citizens that could have been beyond power. But in such cases there may again be little if anything the citizen could do about it. Currently in Victoria fines of up to $5,000 may under ‘emergency laws’ be imposed on persons participating in ‘illegal’ social gatherings. Has the source and derivation of that power been tracked? It is noteworthy that the State Government back-tracked when the legality of its draconian curfew laws were challenged.

Another area of concern where these issues are rife is in local government where most municipal ‘laws’ are derived from State government legislation. A municipal body like a Council or a Shire is the delegate of a State government and owes its authority to that fact. And so, by definition, in exercising its powers pursuant to numerous by-laws and regulations it must adhere strictly to the relevant Local Government Act from which those powers are derived. But here again, where these may be exceeded, the resources of affected citizens (apart from property developers) may not permit an effective challenge at law. Administrative Appeals Tribunals, in keeping with Lord Justice Denning’s prescriptions, were established in many jurisdictions, including Australia’s, to allow a greater measure of informality and affordability to the process. But as time has gone on these tribunals have more and more taken on the trappings of the courts.

Overall, have our Parliaments lost control over their own legislative processes and derivative orders. The loss as perceived has been all the greater since the coronavirus pandemic when for quarantine or social distancing purposes parliamentary sessions have been cut to a minimum and member attendance restricted in numbers. We are not to know when usual parliamentary processes may be resumed. It could be some time to come. Meanwhile the number of excessive subordinate laws and regulations without due oversight or supervision is bound to increase, with civil liberties decreasing commensurately.

Time to restore the ‘rule of law’ to its original premise.

See also an earlier item at: https://johnmenadue.com/andrew-farran-the-longer-term-consequences-of-the-pandemic-may-be-fewer-citizens-rights/

[category politics]

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Andrew Farran is former diplomat, trade adviser to government and senior academic (public law including international law).

Writes extensively on international affairs and defence, contributing previously to major newspapers (metropolitan and rural). Formerly director of major professional publishing company; now of a major wool growing enterprise.

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