26 The Centre for Public Integrity, ‘Executive law-making doubles while accountability decreases’ (Briefing Paper, September 2020) <https://publicintegrity.org.au/wp-content/ uploads/2020/09/Briefing-paper-executivelawmaking-doubles.pdf>. 41 27 42 Human Rights Watch, World Report 2020 (January 2020) <https://www.hrw.org/worldreport/2020/country-chapters/australia>. The existing framework for exemptions from disallowance is summarised in Commonwealth of Australia, Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight (Final Report, March 2021) ch 3. 28 Commonwealth of Australia, Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight (Final Report, March 2021) [1.28]. 29 Commonwealth of Australia, Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight (Final Report, March 2021) [1.29]. 30 Institute of Public Affairs, Bypassing democracy: A report on the exemption of delegated legislation from Parliamentary oversight (June 2020) 1 <https://ipa.org.au/wp-content/ uploads/2020/10/Bypassing-DemocracyA-report-on-the-exemption-of-delegatedlegislation-from-parliamentary-oversight.pdf>. 31 Criminal Code Act 1995 (Cth) s 105.35. 32 Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth). 33 Kieran Hardy and George Williams, ‘Two decades of Australian counter-terrorism laws’ (2022) 46(1) Melbourne University Law Review, 45. 34 Kieran Hardy and George Williams, ‘Two decades of Australian counter-terrorism laws’ (2022) 46(1) Melbourne University Law Review, 43. 35 Australian Law Reform Commission, Traditional Rights and Freedoms: Encroachments by Commonwealth Laws (Final Report No 129, December 2015) [4.5]. See, eg, Crimes Act 1914 (Cth) ss 70, 79. 36 Migration Act 1958 (Cth) s 189. 37 Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth); Migration Act 1958 (Cth) s 501. 38 Yee-Fui Ng, ‘Have our governments become too powerful during COVID-19?’ The Conversation (Online) 20 September 2020 <https:// theconversation.com/have-our-governmentsbecome-too-powerful-during-covid-19-147028>. 39 Stephanie Brenker, ‘An Executive Grab for Power During COVID-19?’ Australian Public Law (Web Page, May 2020) <https://www.auspublaw.org/ blog/2020/05/an-executive-grab-for-powerduring-covid-19>. 40 See Australian Law Reform Commission, Traditional Rights and Freedoms: Encroachments by Commonwealth Laws (Final Report No 129, December 2015) ch 4. Rebecca Ananian-Welsh, ‘Why the raids on Australian media present a clear threat to democracy’, The Conversation (Online) 5 June 2019 <https://theconversation.com/why-theraids-on-australian-media-present-a-clear-threatto-democracy-118334>. 43 CIVICUS, Global Report 2019 (2019) <https:// civicus.contentfiles.net/media/assets/file/ GlobalReport2019.pdf> 44 Comcare v Banerji (2019) 267 CLR 373. 45 Australian Human Rights Commission, ‘Submission of the Australian Human Rights Commission seeking leave to appear as amicus curiae’ submission in Comcare v Banerji’ (2019) 267 CLR 373, No. C12 of 2018, 12 December 2018. See also Kieran Pender, ‘“A powerful chill”? Comcare v Banerji [2019] HCA 23 and the political expression of public servants’ Australian Public Law (Blog, August 2018) <https://www. auspublaw.org/blog/2019/08/a-powerful-chillcomcare-v-banerji-2019-hca-23>. 46 Comcare v Banerji (2019) 267 CLR 373 [164] (Edelman J, dissenting). 47 Robert French, ‘The State of the Australian Judicature’ (Speech to the Law Council of Australia and the Australian Bar Association, 29 April 2016, Hobart, Tasmania) <https://cdn. hcourt.gov.au/assets/publications/speeches/ current-justices/frenchcj/frenchcj29Apr2016. pdf>. 48 Section 75(v) of the Australian Constitution guarantees the High Court’s jurisdiction to judicially review the actions of a Commonwealth officer (including the actions of a Minister). Section 39B of the Judiciary Act 1903 (Cth) gives the Federal Court jurisdiction to review the lawfulness of federal executive action. The Administrative Review (Judicial Decisions) Act 1977 (Cth) sets out grounds for review of decisions made under many Commonwealth laws. 49 Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 [40]. 50 Fiona McLeod SC, ‘National Interest and the Rule of Law’ (Richardson Oration, ACT Law Society, 28 September 2017) <https://www.actlawsociety. asn.au/article/national-interest-and-the-rule-oflaw#fn38>. 51 Law Council of Australia, Submission 166, Free & Equal Inquiry. 52 Migration Act 1958 (Cth) ss 339, 411(3), 473BD. 53 Migration Act 1958 (Cth) s 501(3). 54 Migration Act 1958 (Cth) ss 501A(2)–(3). 55 Migration Act 1958 (Cth) s 502 (also ss 5H(2), 36(1C), 200-201). 56 Migration Act 1958 (Cth) s 5(1). 57 Migration Act 1958 (Cth) ss 5(1), 66(3). 58 Australian Lawyers Alliance, Submission 29, Free & Equal Inquiry. FREE AND EQUAL A Human Rights Act for Australia 2022 95