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Half of our federal laws were passed without oversight

By Paul Gregoire  

A Senate inquiry has discovered that the Morrison government has been passing laws in private, using COVID-19 as an excuse.

Executive branches of government are increasingly relying upon a form of law-making that bypasses any input from Parliament, as well as avoiding its veto powers. Known as delegated legislation, this process involves a series of instruments known as regulations, rules, and determinations.

Delegating the executive to draft certain laws is nothing new. What has changed is that governments are increasingly relying on it to the point that around half of all federal laws are now made this way. And another growing aspect is depriving parliament of its ability to vote against these laws.

A Senate committee charged with scrutinising delegated legislation has released its final report into the lack of parliamentary oversight involved in this form of law-making, which has been utilised substantially during the current political and social climate of uncertainty.

Instigated by the committee itself early last year, the inquiry was called to analyse the rising use of delegated legislation, especially as the onset of COVID-19 had provided the Health Minister with extraordinary powers to issue orders – under the Biosecurity Act 2015 (Cth) – without any oversight.

So, against a recent backdrop of the Morrison government having passed a proliferation of rights-eroding national security laws, together with pursuing closed court political prosecutions, and clamping down on press freedoms, the Coalition is now law-making by decree.

A dictatorship of the few

“The laws that govern us should be passed by parliaments – by our own elected representatives,” said Bill Rowlings, president of Civil Liberties Australia (CLA): an organisation that’s long campaigned against the growing practice of allowing the few ministers of the executive to make the rules.

“If new laws can be written, and old ones extended, without the formal approval of parliaments, we’re being ruled by an elite mix of executive government and bureaucrats who can draft the laws that suit them, without supervision by the people, or the people’s representatives,” he made clear.

Rowlings explained that the process of delegating legislation to the executive – meaning the usual power of the parliament to make the law has been set aside – started off as a “very infrequent exception,” yet now this capacity is being abused by government ministers.

For an example of this, we can consider the Biosecurity Act 2015 (NSW). This was drafted by the NSW government and subsequently debated and amended by both houses of state parliament. Following its passing, it became law and the same process would have to be taken to change it.

However, the Act is accompanied by a legislative instrument known as the Biosecurity Regulation 2017 (NSW), which permits the NSW executive to draft new laws to insert within it, without any input from Parliament.

So, when the Berejiklian government wanted to crack down on protests in 2019, it simply changed the regulation.

“A system like that is variously called a dictatorship of the elite, or sometimes a police state when it’s the police who are demanding the new laws, or extensions to old laws,” the civil liberties advocate told Sydney Criminal Lawyers.

Autocratic tendencies

“We must get the house in order, before our ability to do so slips away” is the title of a 16 March media release announcing the tabling of the final report of the Senate Standing Committee for the Scrutiny of Delegated Legislation inquiry into delegated legislation and parliamentary oversight.

The SDLC warns that while “ultimate law-making authority” should rest with parliament, last year it was prevented from scrutinising 299 laws made by the executive, including laws involving travel bans, increasing the debt ceiling to $1.2 trillion, and lowering local TV content requirements.

According to the SDLC, delegated legislation increasingly involves significant policy decisions. And of last year’s delegated legislation, 17.4 per cent of it was exempt from parliamentary disallowance, which means the executive dictated these laws with absolutely no oversight or veto potential.

The SDLC report made 11 recommendations, three of which the Senate resolved to act upon in mid-June. These include sending a strong message to the executive that parliament should retain a veto capacity in relation to all delegated legislation.

Further, the Senate is calling on the attorney general to set out the rationale behind the regulation that permits certain delegated legislation be exempt from disallowance. And the third point is that it reserves the right to scrutinise all such legislation even if it is exempt from disallowance.

Silencing dissent

The government has recently amended the Australian Charities and Not‑for‑Profits Commission Regulation 2013 (Cth), in such a way to make charities liable for any involvement in protests that result in minor offences, or for provoking such actions, via threat of being deregistered.

These new rules became law in late June. And they were subject to a potential veto by either house of parliament as the Australian Charities and Not-for-Profits Commission Act 2012 (Cth) – which governs the regulation – requires the approval of both houses when altering the instrument.

However, what did occur was the executive was able to draft these draconian laws stifling the ability of charities and not-for-profits to criticise government, and parliament was not able to debate them or alter them in any way.

Required pushback

“Basically, creating delegated legislation without checks and balances takes power from the parliament,” explained Rowlings. “Under the system, no longer are our MPs in charge of the law of the land.”

According to the CLA president, the system of delegated legislation created a simple process for the government to go back and adjust the rules and regulations relating to specific Acts if they’d overlooked a certain aspect or made a mistake at the time of drafting.

However, there’s since been a significant shift in the understanding of how this “lazy” process can be used to avoid the scrutiny of elected MPs that aren’t members of the executive.

In relation to the pushback coming from the SDLC, Rowlings said, it’s “a healthy and welcome response from responsible parliamentarians of both major parties in particular.”

“It takes courage for them to stand up to bullying tactics by the executive government,” he added.

Paul Gregoire is a Sydney-based journalist and writer. He has a focus on civil rights, drug law reform, gender and Indigenous issues. Along with Sydney Criminal Lawyers, he writes for VICE and is the former news editor at Sydney’s City Hub.

 

This article was originally published on The Big Smoke.

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21 comments

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  1. Harry Lime

    Morrison is a text book narcissist, and displays every characteristic of one in spades.
    Lack of empathy
    Grandiose sense of self importance
    Sense of entitlement
    Interpersonally exploitative
    Envious of others,or believes others are envious of him
    Requires excessive admiration
    Shows arrogant,haughty behaviors or attitudes
    Belives he is’special’
    Preoccupied with fantasies of unlimited success,power etc.
    The tide is turning, and there’s going to be an almighty bust.
    The most destructive,insulting and outright dangerous pretender ever to sully the body politic,dragging his gutless, amoral party with him.The end can’t come too soon.

  2. Graham

    Law making via regulations crafted by the executive have been common since Henry VIII’s time – and they are subject to legislative oversight. Commonly a regulation must be tabled in the upper house of Parliament within 30 days of it being promulgated and can be disallowed by the upper House.

  3. Kathryn

    As each day passes, Morrison becomes more and more emboldened to rule our (once) democratic nation in a terrifying undemocratic manner that borders on fascism! Morrison has become a pompous dictator who – without any consultation with other members of parliament, without listening to medical experts in relation to Covid-19, without the slightest consideration for the rights of others – goes on and on doing what HE wants despite his very limited experience or lack of knowledge in the areas he is passing autocratic legislation! The problem is that Morrison is a bully with the emotional maturity of a two year old – he will do what HE wants, WHEN he wants, HOW he wants and to hell with anybody else who tries to stand in his way – even if those (supposedly) advising and guiding him know better! This makes Morrison a dangerous and short-sighted leader and explains WHY just about everything Morrison and his undemocratic, ruthless regime touches, turns to chaos and dysfunction in record time.

    The sooner Australians WAKE UP and realise that Morrison is dragging our nation back to the very dark days of the know-all Menzies whose despotic, paternalistic and misogynistic rule over our country, caused a national level of stagnation, lack of growth, lack of incentive and patriarchal condescension for women over decades.

    Morrison – who strongly, and notoriously, supports a cruel prosperity-driven cult – shows very little compassion for anyone who is poor or, in any way, vulnerable; he and his incompetent, self-serving regime kowtow to billionaires and pander to the Top 1%; the LNP’s current level of bible-thumping hypocrisy is off the scale and they place themselves way, way ABOVE the laws they lay down for everyone else! Whilst the rest of us are in strict lock-down during a life-threatening pandemic, we see Morrison, Frydenberg and Cormann jetsetting all around the world, getting their photos done whilst smugly clinking wine glasses in Europe!

    The contemptuous sneering arrogance expressed by Morrison and his cabinet is absolutely astonishing and shows a callous, scant regard for ordinary Australians! The level of political corruption has reached a point where Australians, in general, have become so disillusioned and so angered by the rising level of self-serving greed, blatant dishonesty, lies, nepotism and the abuse and misuse of hard-earned taxpayer dollars, it seems that Morrison and his regime are now absolutely disconnected from any sense of propriety or any level of integrity. It is now clearly evident that the ONLY thing that Morrison and his regime hold as a priority, is to maintain their ruthless grasp on autocratic power no matter the cost. Members of their regime have become multi-millionaires since they became politicians with Dutton’s personal worth said to be more than $300 MILLION and Morrison’s personal worth rising up from $34 MILLION – how the hell does THAT happen?

    C’mon Australia, we deserve SO MUCH better than this! Click on the link below and learn just HOW morally bankrupt and corrupt this regime REALLY is! Do this nation, our international reputation (which is currently in freefall), our vandalised environment and our children’s future a HUGE favour and kick this mob to the gutter at the next federal election!

  4. mrflibble4747

    First they came for the poor and disadvantaged with RoboDebt and the NDIS and I did not speak out— Because I was not poor or disadvantaged.

    Then they passed laws to limit freedoms of movement, speech and protest and held secret trials and I did speak out on Facebook and Twitter and felt good about myself

    Then they came for me—and there was no one left to speak for me or with any legal power to act on my behalf.

  5. Phil Pryor

    This is a frightful account of a progressive decline of standards of accountability and acceptability. We have some ugly, deficient, regressive types in office, and the future is clouded. Corporate capitalist controlling criminailty is a dangerous enemy to most people’s hopes and needs, selfish, narrow.

  6. Ill fares the land

    It is horrific, of course, but it is not, or should not be, a surprise. If you look back over Promo Bargearse-McSmirky’s scandal-laden “professional career”, what he is doing as PM is replicating exactly what he did in both tourism roles in Australia and NZ. This guy is so puerile and so trapped in his neurotic persona that this is all he does and all he can do (I do suspect that Mr Potato Head is also enamoured with this kind of controlling, autocratic secrecy). That this is clear to those (of us) who know who and what Bargearse-McSmirky is goes without saying. What worries me is that none of P B-M’s staggering failings get the attention they warrant, either from the sycophantic right-wing media or from an anaesthetised population who are dead-from-the-neck-up and besotted with the increase in value of their house and that they have claimed a 100% tax deduction for a new $60,000 dual-cab. You know that if Albanese had P B-M’s skeletons in the closet, it would be a media pile-on, but for the voter population who either can’t see how truly awful P B-M is as a human being and as a PM, it makes me sad to think this is the country we live in – bearing in mind this is the sort of chicanery that populist governments around the world are doing to build and embed the autocratic power of white, male, middle-aged despots.

  7. Vikingduk

    @Harry Lime, not only is the thing called morrison all of those things and more, it is always worth remembering that the smirking jerk and his band of arse licking sycophants are, to a man and woman, all country members. A disgusting state of affairs that this fucking mob of corrupt fascists lead what is tragically called a democratically elected government.

    What the fuck is the hamster, albanese, doing? Running, running in his little wheel, round and round he goes, achieving fuck all, but look how hard he works in his little wheel, I’ll have some of that, too, says the hamster to the liar from the shire, those wedgies can be mighty painful, might even have to maintain a position of principle, oppose the fascist overlords.

    This corrupt system is dying a slow death, there is no room in a functional, loving society for this absolutely rotten to the core behaviour, no room for arrogant, irresponsible fuckwits. We are in the privileged position of watching this world wide death of democracy, watching lies become truth, watching greed become an admirable trait, watching gross incompetence become the accepted standard. How lucky are we, as we lock up refugees indefinitely, that these “others” will never walk freely here, and that we deny them the medical attention they so desperately need, all the more for us, you see.

    How will this pack of self serving xxxxx buy the next election? What’s left to rort, what’s left to announce, and when will the braindead realise that this morrison shitshow announces, they’re the gold medallist when it comes to announceables, piss poor when it comes to the doing.

    All lovingly supported by an equally corrupt and incompetent media. Aren’t ya proud to be orstrayan?

  8. Ban Chen

    You don’t have to be too smart to see where this is heading. Under cover of the smoke-screen of a 24/7 media panic associated with a man-made virus which is slightly more dangerous than a bad seasonal flu, weak politicians are eroding rights and natural freedoms that were the norm less than 2 years ago.
    Mao and Stalin would be impressed.
    The lie- ‘2 weeks to flatten the curve’ is now a unspoken promise- ‘2 years to flatten small business’. Charities are a backstop and more reliable than any govt equivalent and now they are threatened with extinction if anyone dare protest. Shut up, keep your ideas to yourselves- that is the takeaway message. Our future increasingly looks like a Chinese social credit score dystopia. Last week I watched a video clip where residents of Guangzhou were marched through the streets 2 evenings a week to a PCR test centre to get a mandatory swab of dubious quality, dubious that is if one believes evidence of hydrogel in some samples of swabs tested as being evidence. Aust is being ruled by idiots, this is the New Normal. Next stop is Gene Therapy Passports. You like gene-therapy? Yes? To end on a light note, here’s a joke- Labor will save the day.

  9. John OCallaghan

    Show me a man\woman that gets rich by being a politician and I’ll show you a crook!…..
    An honest public servant cant become rich in politics,he\she can only attain greatness and satisfaction by service!…. Harry Truman.

  10. Gangey1959

    @ mrflibble4747. Spot on. I grew up listening to Pete Seeger. He has a song about the Kentucky coal miners strike from way back. It’s called “Which side are you on?”
    That is where Australia is, right here, right now.
    If someone who has suffered seriously at the hands of this form of underhanded and secretive awmaking finally lost their marbles and took violent retributive action agains their “imagined” persecutors, could they not plead “National Security Concerns” as a defence.
    It’s all well and good for scottyfromadvertisingandannouncements to plead “I don’t hold the pointy stick, mate” but when someone takes a potshot at one of the canberra bubble loonies-in-charge because they woke up one morning to find that there was a special tax on fresh air, and that the “cottage industry” hole in the ground company next door had drained the water tank to make mud so there was nothing left to drink, I won’t be surprised.
    Nor would I find them guiltyof anything except not causing enough by-elections.

  11. GL

    2023: Dear Leader Saint Scotty of the Marketing announces to the world the New Democratic Theocratic People’s Republic of ‘straya has arrived.

  12. Jon Chesterson

    DEMOCRACY UNDER THREAT – Legislation by executive order and legalising the power of policy directives and autocratic instruments. Many of us have been raising this for a long time now amidst the massive corruption that underpins it!

    Morrison is charging up an Australian Junta under the shadow of the Covid-19 pandemic and the NSW government is one of his role models and principal ally. Dutton will cement this further and then crack down his military and police State model if he ever gets the chance. We can see how that is already emerging in this pandemic in the management of border control, quarantine, vaccine rollout, public protests and the increasing incursion of police and military into public and civilian life, replacing our civilian public service and administration.

    The next election may be the last chance for Australians to push back on this totalitarian form of government Morrison is imposing in revenge against established democracy, bypassing Parliamentary authority and oversight.

    This happened once before nearly a hundred years ago with disastrous consequences, noting the victims then now lead one of the most aggressive right wing religious-centric States in the world on apartheid, ethnic cleansing and slow release genocide. Morrison, as a religious zealot himself would have no problem with that.

  13. David Stakes

    This is nothing, wait until the Vaccine rort comes out of hiding beneath a national security blanket.

  14. Dianne

    One wonders how many took note of Graham at 10:02 am when he pointed out that: Law making via regulations crafted by the executive have been common since … and they are subject to legislative oversight.

    Why it’s even explained in official publications. Delegated (also known as subordinate) legislation is legislation made not directly by an Act of the Parliament, but under the authority of an Act of the Parliament. Parliament has regularly and extensively delegated to the Executive Government limited power to make certain regulations under Acts

    https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/Practice7/HTML/Chapter10/Delegated_legislation

    Perhaps wider reading generating greater understanding might be more helpful?

  15. Jon Chesterson

    Unhelpful Dianne, ignoring the scale of it and the current pervasive and persistent trend. To infer we are all ignorant of its existence in our political history is a touch presumptive and arrogant and that we should therefore just suck it up is nothing less than gross dereliction of civilian and democratic duty if we want to continue with and preserve a viable democratic constitution. We should be defending, enhancing and improving it – ‘Advance Australia fair’, isn’t this the key stone line in our national anthem, for a free and democratic people?

    PS There was no fully elected Parliament by the people in Henry VIII’s time – False news.

  16. Jon Chesterson

    Britain did not become a democracy until the Representation of the People Acts of 1918 and 1928 that gave the vote to all men and women over the age of 21.

    Previous incarnations were not fully democratically elected.

    The House of Commons of England was the lower house of the Parliament of England (which incorporated Wales) from its development in the 14th century to the union of England and Scotland in 1707, when it was replaced by the House of Commons of Great Britain. In 1801, with the union of Great Britain and Ireland, that house was in turn replaced by the House of Commons of the United Kingdom.

    The first English Parliament was convened in 1215, with the creation and signing of the Magna Carta, which established the rights of barons (wealthy landowners) to serve as consultants to the king on governmental matters in his Great Council.

    Parliament should not be confused with democracy or a democratically constituted parliament.

    The colonies of Australia began to grant universal male suffrage to white men during the 1850s.

    The Australian Parliament passed the Commonwealth Franchise Act 1902, which set a uniform law enabling women (except those who were “aboriginal natives” of Australia, Africa, Asia, and the Pacific Islands, unless excepted under section 41 of the constitution) to vote at federal elections and to stand for the federal parliament.

    Australia was not a genuine or authentic democratic elected parliament until the Commonwealth Electoral Act 1962 received assent on 21 May 1962 granting all Aboriginal and Torres Strait Islander people the option to enrol and vote in federal elections.

    What happened in Henry VIII’s time and earlier in 1215 is simply not comparable or relevant for the purposes of understanding democracy and parliamentary processes and legislation, other than understanding some general historical principles in common law and governing monarch.

    Final caveat – Anyone who believes our country behaves as a truly fair and democratic nation true to its constitutional, common law, legislative and judicial responsibilities is arguable poorly informed or delusional, but that is another argument entirely.

  17. Jon Chesterson

    Graham – Entertaining reading, reads like a fairy tale, such to start with as to what we know about the tyrant English monarch Henry VIII and his executive orders. Such provisions are in his time simply not relevant or comparable to modern day ‘democracy’ and constitutional parliamentary process and legislative oversight. There weren’t even two houses to draft or conduct legislative oversight let alone an elected one.

    However we might like to compare Morrison to Henry VIII and he himself might like such executive powers as our friend Henry would have had, but it will be Dutton chopping off our heads. Morrison’s view of the place of women sounds similar, perhaps his daughters one day might inherit his robes and create Australia’s golden age. I wonder if the women of Australia will approve and allow these means and provisions to justify the outcome? Do we want such a tyrant to be our head of State?

  18. Henry Rodrigues

    Is anyone wondering why we see so many public programs like the vaccination rollout, being headed by men in uniform ? Is this the thin edge of the wedge into future governments of autocrats backed up men in uniform and a self serving sycophantic media and a thoroughly intimidated/compromised public service that covers up the misdeeds of the dictators and their henchmen ?

    And still the stupid Australian voters seem to be unaware or deliberately compliant. We are headed into dangerous waters.

  19. Andrew J. Smith

    It can also be a cynical long game to not just quietly implement nativist libertarian regulations or amendments, but plan for a long game for political and/or sociocultural agitprop; aka Howard’s changing the definition of marriage way back in 2004 then reemerge as an issue over a decade later….

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