LSB September 2021 LR

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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 6 THE BULLETIN September 2021
EXECUTIVE POWER powers as does the Chief Public Health Officer. Through a matrix of primary and subordinate legislation and instruments we are captured and controlled by unelected largely unaccountable people. None of this should take from their efforts. Additionally, it is parliament that did this and we elected its members. Yet the fact remains that the power delegated to the executive is vast. Analysing bills before parliament these days is a three part process. What is in the primary bill, what is in the regulations and then the real devil in the detail, what is in the delegations? Often it is there that one realises a minister can do whatever she or he wishes. Back to COVID, the use of executive power can be argued to be a necessity due to the speed with which decisions need to be made. On the other hand the control over our daily lives by government agencies and their leaders is extraordinary. It goes without saying that the power must be exercised with bona fides and the courts stand by to curtail these uses of power if they are beyond power. Yet it is a very big ask for a private citizen at personal expense to test such pervasive executive decrees. Odds are that they are lawful anyway. Moreover, the raison d’être behind an executive use of power may be singular (for instance to quell a disease) and have no regard for any consequential loss of rights. So it was when Western Australians were compelled to use QR codes after receiving assurances from their Premier and Health Minister that the data would be sacrosanct and used exclusively for health purposes, only to have police unapologetically seize the data as evidence in a murder investigation. So much for the oft employed lines of self justification, ‘if you only knew what we knew’ and ‘trust the system’. For the executive the ends so often justify the means, whereas the judicial arm of government is much more likely to take exception to that approach. However good faith immunities have made it difficult or impossible to resort to the courts for remedies. What the growth of executive power has meant for the legal profession has been profound. Administrative law has become a growth area. Administrative tribunals proliferate, and statutory interpretation is what the law is now mostly about. It has become necessary for superior courts to analyse what species of executive power is being utilised, and its validity. Traditionally we have had two sources of executive power in our country, by prerogative or by statute. Edmund Barton in Adelaide in 1897 explained executive power as: ‘primarily divided into two classes: those exercised by the prerogative ... and those which are ordinary Executive Acts, where it is prescribed that the Executive shall act in Council.’ 1 Born from those constitutional conventions was S61 of the Australian Photo: REUTERS / Sandra Sanders - stock.adobe.com. Constitution which seeks to describe the executive powers of the Commonwealth (though not exhaustively as remarked upon by Sir Anthony Mason), excluding those still held by the states. S61 reads as follows: ‘The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor- General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.’ Particularly at the Federal level the development of jurisprudence about executive power has been evolving since Federation. The use of executive power in borders cases has been central to that evolution including the Federal Court in Ruddock v Vadarlis. 2 Former Chief Justice Robert French AC summarised the recent state of executive power in Australia in a paper for the University of Western Australia Law Review in this this way: ‘There are, no doubt from an academic perspective, many unanswered questions about the scope of Commonwealth executive power in Australia and perhaps also the scope of the executive power of the States. Some of them may give rise to anxiety about future directions. The judiciary is unlikely to provide a comprehensive answer in any one case. The development of principle will proceed case-by-case.’ 3 September 2021 THE BULLETIN 7
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