(b) Strengthening accountability and
the rule of law
Democracy relies on a system of constraints
on executive power. The executive branch is
empowered to use executive power by the
Constitution,20 which also ensures that the
exercise of executive power is checked by the
other two branches of government: the judiciary
and legislature. Rule of law principles provide
that the executive should be both separate from,
and accountable to, those branches, and it must
act within the law.21 Executive power should not
be so broad as to extend to arbitrary action –
particularly where people’s rights and freedoms
are affected by discretionary decisions.
However, in practice, there are relatively few
parliamentary or judicial safeguards on the
exercise of discretionary executive power.22 The
common law, the ‘traditional check on executive
abuse’, can simply be overridden by the clear
and unambiguous intention of Parliament.23
Parliament routinely passes laws that expand
upon executive power and grant broad
ministerial discretion.
A similar pattern has arisen regarding the extent
to which Parliament has delegated decisionmaking power to Ministers, with the Centre
for Public Integrity estimating that delegated
legislation has doubled in the past 30 years.24
This pattern was exacerbated during the
COVID-19 pandemic, with Parliament taking
long recesses during this period.25 Nearly 20% of
the executive actions taken since the pandemic
began are exempt from parliamentary oversight
altogether.26
A concern about how much decision making
was being delegated with exemption from
disallowance,27 prompted a specific inquiry by
the Standing Committee for the Scrutiny of
Delegated Legislation.
The Committee noted an increasing volume of
delegated legislation over time: ‘from an average
in the mid-1980s of around 850 disallowable
instruments tabled each year, it currently sits
72
around 1,500 each year’.28 In addition, there is
a trend for increasing amounts of delegated
legislation to be exempt from disallowance.
In 2019, 20% of the 1,675 laws made by the
Executive were exempt from disallowance; in
2020 it was 17.4%; but since 2014 there had been
a general upward trend.29
The Institute of Public Affairs, in its own report
on this issue, observed that
The volume of delegated legislation
exempt from parliamentary scrutiny
reveals a deeper vulnerability to our
liberties. A weakening of parliamentary
oversight has led to a reduction in scrutiny
of and transparency over law-making. This
has concomitantly removed an important
check and balance on the exercise of
government power, intervention, and
authority, leaving the Australian’s rights
and liberties exposed to government
overreach.30
Examples of laws that have increased executive
powers include:
• Counter-terrorism laws, for example
preventative detention orders enabling
a person to be held in secret without
arrest or charge,31 control orders, and
surveillance laws – including metadata
retention laws enabling access to data
by law enforcement agencies without
a warrant.32 Kieran Hardy and George
Williams, in a recent analysis of Australia’s
counter-terrorism laws, found that the
Australian Government has enacted
92 counter-terrorism laws in the twodecades since 11 September 2001.33
Despite recommendations for reforms of
problematic laws, the authors found that
the ‘framework laid out by laws from the
first decade after September 11 remains
almost entirely in place. In fact, many of
these laws exist in the same form in which
they were enacted, except where their
reach has been expanded’.34