LSB September 2021 LR

EXECUTIVE POWER
THE MARCH OF EXECUTIVE
AUTHORITY HIGHLIGHTS
FRAGILITY OF DEMOCRACY
MORRY BAILES AM, SENIOR LAWYER & BUSINESS ADVISOR, TINDALL GASK BENTLEY
As lawyers we spend a lot of time
talking up the importance of the
independence of the judiciary. It is indeed
critically important, so we are not wrong
in our obsession with it. An erosion of
independence in the judiciary is often the
first sign a democracy has lost its way. Take
Hong Kong as a current example. How
long can eminent foreign judges continue
to sit comfortably on its Apex court, when
it is now quite clear that there is political
interference in the selection of the judiciary
at other levels.
However, at times we dwell perhaps
too exclusively on this admittedly most
vital of building blocks, perhaps at the
expense of scrutinising our other arms of
government.
Our parliament is fairly easily
understood fulfilling its legislative
role. However executive government
remains shrouded in a bit of mystery. It
is opaque in a way the United States of
America’s system is not, where executive
power is so singularly concentrated in
the office of President. Here executive
power is wielded by some of the same
parliamentarians that pass law, including
the Attorney-General.
The parliamentary convention in the
British Parliament is that the Attorney-
General of England and Wales has no
position in Cabinet creating a degree of
separation, answerable to the parliament
rather than the cabinet. Not so in our
country or in our state. The Attorney-
General is at the heart of executive power.
What is not at first apparent in the use
of executive power is just how much is
delegated through subordinate legislation.
Parliament is responsible for delegating
a great deal of its function, by necessity,
to ministers who in turn rely on their
agencies. The ‘trickle down’ effect is
not widely understood nor is the extent
of such delegations. All of a sudden,
decisions are being made that parliament
didn’t know about or hadn’t necessarily
contemplated. Enter the era of rule by the
executive, and a foreboding sense that the
executive arm of government may have
spread its tentacles so far that it is difficult
to entirely comprehend or reign in.
A current example arises from the
Return to Work Act, introduced by the
former ALP government and passed by
the then parliament. It gave certain powers
to the Minister for Industrial Relations, to
makes changes to the Act’s impairment
assessment guidelines.
Following some judicial decisions
involving interpretation of the Act and
guidelines, the perception was that things
had gone against the interests of Return
to Work SA. The Minister for Industrial
Relations indicated an intention or interest
in changing the guidelines, perhaps to take
away the disadvantage for Return to Work
SA created by those judicial decisions,
although that was not his stated intention.
Instead, his intent was cloaked in more
beguiling words:
“to deliver greater clarity, consistency,
and transparency, and to reflect relevant
clinical developments. There are also
corrections and clarifications proposed.”
In spite of a sense of inequity about
what the Minister for Industrial Relations
may do, and opposition from parts of the
legal profession and medical profession,
the powers delegated to the Minister were
not contained in a disallowable instrument.
When parliamentarians had a look at what
they had enacted, they discovered that
as the powers were not contained in the
disallowable instrument, parliament had no
role; it could not move a motion to prevent
the minister using his delegated power.
Despite Labor’s attempt to rectify a situation
(which it largely created) by introducing
a Bill to mandate that such changes be
made via Regulation, the Minister recently
gazetted the changes with all but the stroke
of his pen. All because parliament gave
away its power to a member of executive
government, and lost control.
Needless to say that example is one of
thousands upon thousands of delegations
by way of subordinate legalisation to the
executive arm.
No example though better illustrates
the true power of the executive than
what has happened from the start of the
COVID pandemic. Parliament has quite
literally allowed our freedom of movement,
our freedom of association, our liberty, and
an accounting of our daily whereabouts
to be decided by government agencies.
The Commissioner of Police has certain
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THE BULLETIN September 2021