Below are two scenarios that raise issues about the the relationship between the exercise of executive powers and their oversight, and foundational concepts studied in Government and Public Law. Please consider the scenarios set out below and answer the related questions.
a. In a press conference, Saroj Ibrahim, a reporter for Guardian Australia, noted recent news stories chronicling the Health Minister’s rejection of applications from retail workers working in ‘non-essential’ retail stores for a determination that they are authorised workers under the Human Biosecurity (Stay at Home Requirements) Order 2020 (Cth). She asked the Prime Minister, Ara Margossian, why the Health Minister had been given such a wide power to limit who could leave their homes to go to work. Mr Margossian admitted that there was little evidence to suggest that retail workers going to work in a workplace where retail customers could only ‘click and collect’ items was a source of spread of COVID-19. However, he said: ‘not only will the Minister receive what she wants in terms of additional powers or additional resources, but more than what she needs or wants’. Explain why this statement is inconsistent with:
Question i. constitutionalism; and
Answer: Constitutionalism is the political ideology that explicitly states what the government may and cannot do, which serves as a check on the power of the government. Hence, the statement giving additional powers to the ministers only leads to the exploitation of retail workers because there is little evidence of the source of the spread of COVID-19.
Question ii. TRS Allan’s definition of the rule of law.
Answer: The emphasis of TRS Allan’s definition of the rule of law is freedom. He claims that your freedom is secured, but not in a way that restricts the freedom of others. He contends that any restriction on freedom must be justified. Liberty must be restricted only when it is required for the common benefit. Any law that falls short of this requirement is not a law. In his theory of the rule of law, a person should also be free from arbitrary independence. Hence, the statement depicts that ministers have been given the power to curtail the freedom of retail workers unjustifiably.
b. Maya Krishnan lives alone. She is really worried about getting lonely and the impact it will have on her mental health if there is no way for someone to come and visit her at home while the order is in place. She writes to the Commonwealth Ombudsman asking them to conduct a review into the Minister’s decision not to include a ‘social bubble’ in the list of reasonable excuses for leaving your place of residence under Part 3 of the Human Biosecurity (Stay at Home Requirements) Order 2020 (Cth).
Question i. Can the Ombudsman directly review the Minister’s decision? Why or why not?
Answer: In Australia, the ombudsman examines and keeps track of some secretive and invasive powers employed by the police and other law enforcement organisations. Hence, the ombudsman can directly review the Minister’s decision under Part 3 of the Human Biosecurity (Stay at Home Requirements) Order 2020 (Cth) because they have the authority to review the administrative actions of the ministers.
Question ii. The Ombudsman is limited to making non-binding recommendations for the government to consider. Is this a reflection of political constitutionalism? Why or why not?
Answer: Political constitutionalism means restrictions on the powers exercised by the political institutions. In this, the legislature act as a main check upon the executive. For effective political constitutionalism, different political institutions are created that share authority and supervise one another. It contains certain pre-conditions when the legislature acts as the main check upon the executive that scrutineers should be impartial and take their job seriously, and transparent, representative deliberative politics are required. Hence, the non-binding recommendations of the ombudsman to the government reflect political constitutionalism.
Question: Section 477 of the Biosecurity Act 2015 (Cth) and the Human Biosecurity (Stay at Home) Order 2020 (Cth) are a reflection of the nature of constitutionalism in Australia. Discuss.
Answer: Constitutionalism is a loosely defined phrase. Its breadth and what can be regarded as its features vary depending on the context. The development and functioning of Australia’s constitutional arrangements highlight the difficulties of defining constitutionalism in a way that is both concrete enough to be meaningful and flexible enough to allow for distinctions between states that, instinctively, justify identification with constitutionalism. Constitutionalism also necessitates the study of the characteristics of the constitution. These include the constitution’s status as a collection of fundamental rules with which any exercise of public power is required to follow, as well as the constitution’s legitimacy, which is based on and generally assigned to the people.
While considering this, four constitution characteristics emerge that are universally shared and, taken together, provide a yardstick for analysis. First, a constitution must include significant values and behaviours, whether or not they are defined as basic law. Second, the constitution should be envisioned as deriving its authority from the people, either actively due to how it was drafted or more passively, as capitulation, both at the commencement and later stage. Third, the constitution should establish a structure for the government of and by the people in a form that constructs public power in such a way that it both empowers and limits the agencies of the state. Finally, the constitution should be functional because conformity is the norm, with sanctionable violations. Australian constitutionalism fits within these limits, albeit with certain distinguishing features. It is based on a thinly codified constitution that works within a constitutional culture impacted by sentiments drawn from an uncodified constitutional context.
The division of public power largely determines the nature of Australian constitutionalism among levels and branches of government confined within the Commonwealth Constitution. These arrangements, which have evolved over a period, both empower and limit institutions. The constitution establishes the foundation for Australian federalism. A federal system divides legislative and other powers between two tiers of government, limiting each’s power by nature. On the surface, the constitution delegated significant power to the states, including, most significantly for current purposes, human rights and comprehensive criminal law. For example, under section 477 of the Biosecurity Act 2015 (Cth), the health minister has been given the power to determine emergency requirements during the human biosecurity emergency period. He has also been given the power to prevent or control the entry of the listed human disease into Australian territory or a part of Australian territory.
Another important aspect of Australia’s institutional separation of public authority is bicameralism. Except for Queensland, the Commonwealth and all State Parliaments have legislatures with two chambers, the former due to federalism and the latter as a legacy of colonial history. However, all Australian second chambers are now elected, albeit through a variety of electoral procedures. In a political context where party discipline often dictates outcomes in the lower House, the increased consideration they bring to the legislative process has been respected. Currently, all second Chambers have significant legislative and oversight authority over the executive branch. The High Court has supported the rights of upper Houses to hold administrations accountable, so changing the principles of sensible government in Australia. These developments have strengthened legislatures as institutions in their own right and provided them with some independence from executive control.
Bicameralism serves as a political safeguard, operating through the political or electoral branches of government. Other safeguards may be enshrined in the constitution or imposed by statute. Constitutional safeguards are important, especially when they are challenging to remove, as they are in Australia. Consider what kind of government Australia would have now if the constitution could have been modified by the legislative majority, as in certain nations, rather than through referendum. Of course, governments would have reconfigured the system to their liking, removing limits on their power. However, as previously said, systems of government can be modified without requiring official modifications to the constitution; written constitutions can be challenged.
Secondary and statutory safeguards are also beneficial. Auditor-generals, administrative appeals tribunals, ombudsmen, and freedom of information act as statutory safeguards in Australia. However, all of these safeguards are at the discretion of governments in control of the legislature. They can be taken down at any time. For example, under s 3 Part 1 of the Human Biosecurity (Stay at Home) Order 2020 (Cth), the Administrative Appeals Tribunal is empowered to conduct a merits review for significant errors to balance the need for oversight against the need to act quickly and decisively, and the Parliament is empowered to monitor the exercise of powers under this order, with the assistance of the Commonwealth Ombudsman. Also, the ombudsman is provided with certain documents by the Minister if the Minister decides that a person is an authorised worker under section 6 of the Human Biosecurity (Stay at Home) Order 2020 (Cth) so that the ombudsman can review complaints regarding this decision of the Minister and determine if they are incorrect, unreasonable, unlawful, discriminatory, or simply unfair. The ombudsman also seeks remedies for persons who have been harmed by administrative shortcomings and works to improve public administration in general.
Separation of powers is the third and most important method of allocating power among institutions. The separation of powers doctrine is not directly stated in the Australian constitution but is considered to be legally established by implication. This conclusion stems from the separate vesting of the Commonwealth’s legislative, executive, and judicial powers in the Parliament, through separate chapters provided under Chapter III of the Constitution (“Chapter III courts”). The separation of powers as a constitutionally enshrined legal principle was not inescapable in Australia. It resulted from judicial interpretation of the constitution’s structure rather than any clear purpose of the framers or express language in the text to that effect. Thus, in Rv Kirby, ex parte Boilermakers’ Society of Australia, the High Court found that the constitution implied a legal separation of powers. The separation of judicial powers was carefully enforced. In addition to precluding the vesting of “the judicial power of the Commonwealth” in anybody other than the courts provided for in Chapter III, it limited the power such as arbitral or administrative, which were constitutionally verboten to them.
Compliance with the constitution and the law is an essential component of the rule of law in Australia, and it has historically been a source of strength for Australian constitutionalism. Even before the federation, judicial scrutiny of the legality of legislation and government action was common in Australia. However, Imperial law was the major yardstick and the ultimate arbitrator was the Privy Council. Federation provided the impetus for effectively enshrining judicial review in a codified Constitution. In keeping with the common law tradition, Australia adopted a system of diffuse review in which all courts could potentially deal with constitutional questions as a component of the generalisability of the law to be applied, with the High Court serving as the final court of appeal once appeals to the Privy Council were exhausted.
Moreover, despite continued adherence to the ancient Imperial practice of appointing judges solely by the executive, Australian courts are usually considered independent and impartial. The fact that the States recognise the High Court as both adjudicator of the constitution’s federalism provisions and final interpreter of State legislation, although having a small input in High Court selections, demonstrates Australia’s faith in judicial independence. For example, under s 5(2), the Minister has the power to determine whether a person is an authorised worker if they are satisfied that it is in the public interest for them to leave their place of residence for work. However, such a decision of the Minister can be reviewed by the Administrative Appeals Tribunal if the Minister’s decision is based on substantial errors of fact. The Administrative Appeals Body (AAT) is an Australian tribunal that performs an independent merits review of administrative decisions issued by the Australian Government under Commonwealth statutes.
Australian constitutionalism is the result of a long history in which elements from other constitutional systems mingled and were tailored to local situations. The emphasis on electoral democracy, reliance on the integrity of public institutions, and lack of entrenched state protection of rights are all distinguishing features of Australian constitutional systems. Due to these characteristics, Australia is an intriguing case study in a type of political constitutionalism under an entrenched constitution. This strategy has successfully developed Australia as a state that can be well-described under the ambit of constitutionalism. However, it includes flaws that have already driven steps toward more intentional and robust rights protection. More modifications will likely be required in the future to sustain the benefits of constitutionalism.
A. Articles/ Books/ Reports
Carney, Gerard, ‘State Constitutions’ in Saunders and Stone, The Oxford Handbook of the Australian Constitution (Oxford, OUP, 2017), 277.
Commonwealth Parliament, House of Representatives Practice (7th ed, 2018), chapter 1.
Dicey, AV, ‘Will the Form of Parliamentary Government Be Permanent?’ (1899) 13 Harvard Law Review 67.
Dicey, AV, Lectures Introductory to the Study of the Law of the Constitution (JWF Allison, ed), (Oxford, OUP, 2013), 43.
Dobner, Petra and Loughlin, Martin, ‘The Twilight of Constitutionalism’ (2010) Oxford 3.
Evans, Harry, ‘Constitutionalism, bicameralism, and the control of power’ (2006) Parliament of Australia 6-7.
Goldoni, Marco and McCorkindale, Chris, ‘Three Waves of Political Constitutionalism’, (2019) 30 King’s Law Journal 74.
Gussen, Benjamin, ‘Australian Constitutionalism between subsidiarity and federalism’, (2015) University of Southern Queensland 5.
Hardin, Russell, ‘Why a constitution?’ (2013) Cambridge University Press 51.
Hayne, Kenneth, ‘Rule of Law’ in Cheryl Saunders and Adrienne Stone (eds), The Oxford Handbook of the Australian Constitution (Oxford, OUP, 2018), 167, 181-186.
Saunders, Cheryl, ‘Constitutionalism in Australia’ (2020) Cambridge University Press U of Melbourne Legal Studies Research Paper No. 880.
Saunders, Cheryl, ‘Separation of Legislative and Executive Power’ in Saunders and Stone’, (2018) The Oxford Handbook of the Australian Constitution, 21(2) 617.
Stone, Bruce, ‘Australian Bicameralism: Potential and Performance in State Upper Houses’, (2002) Department of the Senate Occasional Lecture Series 1-19.
Williams, George and Reynolds, Daniel, ‘The operation and impact of Australia’s scrutiny regime for human rights’ (2020) 41(2) Monash University Law Review 475.
Egan v Willis (1998) 195 CLR 424.
New South Wales v Commonwealth (1915) 20 CLR 54.
R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.
Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73.
Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 463.
Australia Constitution Act 2001 (Cth)