1 Chapter 6 The executive and law-making by administrative agencies Copyright © Nelson Australia Pty Ltd 2003

2 Outline 1.The executive government 2.The process of executive government 3.Delegated legislation 4.The rise of the bureaucracy and executive dictatorship 5.The problem of administrative discretion 6.Reforming the process of delegated legislation 7.Challenging bureaucratic decisions 8.The balance of power

3 6.1 The executive government

4 Executive function of government – The carrying out, administration and enforcement of the law Under the Constitution, executive power is exercised by: the Governor-General the Ministers comprising the Executive Council.

5 The executive government Responsible government – The Ministers are members of Parliament. Ministerial responsibility – The Ministers are responsible and accountable to Parliament for their policies and the conduct of executive government. Collective responsibility – The decisions of Ministers are treated as collective decisions of the Cabinet, and Ministers are expected to support cabinet decisions.

6 6.2 The process of executive government

7 The Governor-General Although the Governor-General represents the head of State, there is little under the Constitution that the Governor-General can do independently of the Executive Council. The extent and nature of the Governor- General’s reserve powers are unclear.

8 The Executive Council Established by s. 62 of the Constitution and comprises all the Ministers of the government A formal advisory body which also has substantial powers to make laws under powers delegated to it by Parliament

9 The Cabinet Comprises only the senior Ministers The centre of the government’s decision- making process Not expressly referred to in the Constitution (but neither is the Prime Minister)

10 The public service Carries out the administration of government Divided into departments, each having functions in a particular policy area

11 Statutory authorities Established by Acts of Parliament at the instigation of the government of the day There are more than 500 statutory authorities in Australia, e.g. the Australian Broadcasting Commission.

Delegated legislation

13 Delegated legislation Legislation made not by Parliament but by a delegate upon whom Parliament has conferred legislative power The most common delegate of Parliament is the executive government. It is becoming increasingly common for Acts to simply provide a general framework for the law, leaving delegated legislation to ‘fill in the gaps’.

The rise of the bureaucracy and executive dictatorship

15 The rise of the bureaucracy ‘I suggest that it is a fundamental truth of our existing constitutional arrangements that the executive has got out of control, and Parliament, the traditional check on powers of the executive, is not performing that function in a satisfactory manner … Too often the paramount reason for introducing the regulation is the convenience of the administering department, not the welfare of the citizen … The regulation is one of the most fearful instruments of executive domination. For sheer speed, lack of warning, absence of consultation and debate, nothing beats regulations … We have witnessed the eclipse of Parliament. We should try to restore its supremacy as a law-making body.’ Professor Geoffrey Palmer

16 Executive dictatorship ‘In Australia [the Westminster system] is labelled ‘parliamentary democracy’ and ‘responsible government’ by its supporters. But it has grave deficiencies as far as democracy is concerned. In theory, Parliament is supposed to be master and the executive servant. The system no longer works that way, and hasn’t for a long time. In reality, premiers and their cabinets – not to mention prime ministers and theirs – now form a sort of ‘executive dictatorship’ with vast, and often unchecked, powers.’ Patrick O’Brien, ‘The fatal flaw: Has the Westminster system produced a form of executive dictatorship?’, Time Magazine, 16 September 1991

The problem of administrative discretion

18 Administrative discretion Parliament regularly passes legislation that grants to Ministers or public servants discretionary powers to make decisions with significant impacts. Examples include the power to grant or refuse a licence, the power to grant or refuse a pension, the power to impose a penalty, etc.

Reforming the process of delegated legislation

20 The current process The regulation is drafted by a public servant and submitted to the Executive Council. It is then signed by the Governor-General and notified in the Government Gazette. It is laid before each House of Parliament, but this is a passive process – if no objection is raised, the regulation is passed.

21 Reforming the process Sunset clauses – Provide a fixed life for a law Regulatory impact statements – Agencies must first make a proposed regulation’s costs, benefits and alternatives available to the public. Mandatory consultation with affected businesses More effective parliamentary scrutiny Better public access to laws

Challenging bureaucratic decisions

23 Challenging bureaucratic decisions The Ombudsman Freedom of information laws Whistleblowing The Administrative Appeals Tribunal Judicial review of administrative decisions

24 The Ombudsman Established federally by the Ombudsman Act 1976 (Cth) There are also ombudsmen in each State, and specialist ombudsmen. The Ombudsman ensures that complaints against officers of government agencies are investigated and remedial action taken where required.

25 The Ombudsman

26 Freedom of information laws The Freedom of Information Act 1982 (Cth) gives people a right of access to documents held by any Commonwealth government body. Each State has passed similar legislation.

27 Whistleblowing An act by a person who publicly blows the whistle because the organisation they work for is involved in corrupt, illegal, fraudulent or harmful activities Whistleblowers are protected under State legislation.

28 Administrative Appeals Tribunal Created by the Administrative Appeals Tribunal Act 1975 (Cth) Has jurisdiction to hear appeals from the decisions of ministers, officials and agencies Not a court, and forms part of the executive Has the power to substitute its own decision for that of the bureaucrat

29 Judicial review of administrative decisions The traditional remedy available from a court was the issuing of a prerogative writ, whereby the court ordered an administrative officer or tribunal to act or refrain from acting. Types of prerogative writ included: habeas corpus mandamus certiorari prohibition.

30 Judicial review of administrative decisions Under the Administrative Decisions (Judicial Review) Act 1977 (Cth), where the court is satisfied that a sufficient ground is established, it may make an ‘order of review’, which may: quash the decision order the decision maker to remake the decision make an order declaring the rights of the parties, or ordering them to refrain from doing something, or to perform some act.

The balance of power

32 The balance of power ‘Unhappily, however, for the power-hungry occupant of the Judicial Bench, the days have long since vanished when the law was thought to reside in the bosoms of the judges … today by far the greatest majority of judicial decisions on points of law are essentially decisions on the construction of statutes, and by and large the role of the judge has been downgraded from that of law-maker to that of interpreter.’ Donald Dugdale, ‘The absurd pretensions of the law of torts’, (1982) NZ Recent Law 260