A Statutory Shield of the Executive: To What Extent does Legislation Help Administrative Action Evade Judicial Scrutiny?

Abstract

There are two broad arguments that suggest it is generally preferable for the Executive’s power to be codified and in statutory form. The first is democratic: despite the role of cabinet governance in the Australian democratic system and the fact that Cabinet quite properly makes many decisions which are unsupported by legislation, it is generally preferable in a democracy for exercises of executive power to be constrained by legislation whose terms have passed through the parliamentary process and have thus been ratified by the elected representatives of the people. The second is functional: that codifying executive power should make reviewing exercises of that power easier because it has the practical effect of placing express limitations around the range of discretions given to the decision-maker. The second (functional) justification for codification assumes that placing powers on a statutory basis would simplify assessing whether the executive acts appropriately in exercising that power. This is because such an assessment would be based on questions including whether the decision-maker has complied with the statute or whether the statute is constitutionally valid. These are questions which, at first blush, seem particularly amenable to resolution by the courts.

This Chapter will not explore the first (democratic) justification raised above. Indeed, we accept that the public law heritage Australia takes from Britain makes it impractical for every instance of executive action to be ratified by Parliament by passing primary legislation. That was the preference of AV Dicey, who was opposed to vesting discretionary powers in the administrative state rather than in Parliament and abhorred the idea of ‘law’ that came from any source other than Parliament or the ‘ordinary’ courts of England. However, notwithstanding the support of prominent followers, this view has long been out of fashion, for several reasons. The first was that he did not understand the difference between ‘discretion’ and ‘arbitrariness’. The second was that Dicey’s fears that discretion was a threat to the rule of law have not proved justified. The third is the most important: Dicey wrote at time when England (and, by extension, certainly Australia) could be governed from the floor of Parliament. The almost exponential growth of the administrative state throughout the western world between the Depression and the aftermath of the Second World War demolished Dicey’s belief structure in this regard. Parliamentary time is now at a premium and, although it is held to the highest standard of available accountability, legislation passed through both Houses of Parliament can frequently be slow to make, unresponsive to changing circumstances and inflexible. Delegated legislation is not made in Parliament but it does not lack accountability in as much as it is authorised by Parliament. In any case, we should be far more concerned about executive regulation that takes place without any delegation from Parliament at all. Show more