Funding by delegated legislation
The federal government has appropriated $3.55 billion in the past 10 months without consulting parliament, using regulations that bypass both houses and can’t be disallowed.
The volume of funding allocated under delegated legislation is among the measures that have prompted a warning from a government-led parliamentary committee examining the government’s use of emergency powers during the Covid-19 pandemic.
The senate committee for the scrutiny of delegated legislation published an interim report last week on its inquiry into the government’s increasing use of lawmaking that avoids parliamentary scrutiny.
Led by Liberal senator Concetta Fierravanti-Wells, the committee found there were systemic barriers to parliamentary oversight of this kind of legislation, especially when made during times of emergency.
It found the government has used delegated legislation, which involves the government declaring a law rather than having it pass through parliament, to make 249 instruments since the pandemic was declared.
Of those, almost 20 per cent were also exempt from disallowance, meaning the senate was barred from vetoing them.
The exemptions prevented parliament from scrutinising measures such as travel restrictions on Australian citizens both beyond Australia and within its borders and the extension of the designated period of biosecurity emergency.
Once a biosecurity emergency is declared, any laws made under that declaration override all other laws in Australia, meaning the government is able to change laws more easily.
“The committee calls on all parliamentarians to carefully consider their responsibilities, as representatives of the people, to ensure that delegated legislation made in response to emergencies is subject to rigorous parliamentary oversight,” Fierravanti-Wells told the senate. “That is a responsibility that we as parliamentarians have and it is the reason why we sit in this place.”
The committee report was one of several warnings about the erosion of accountability as parliament approached its final sitting week of 2020.
Transparency International and Queensland’s Griffith University issued a new report, “Australia’s National Integrity System: The Blueprint for Action”.
It emphasised that perceptions of corruption in Australia were increasing with the erosion of public trust in institutions, with an October survey recording 66 per cent of respondents saying it was a quite big or very big problem, up from 61 per cent in 2018.
Coinciding with the report’s release, a group of advocates gathered at Parliament House, calling for a better national integrity commission than the one the government has proposed.
Former High Court justice Mary Gaudron, QC, described the government’s proposal as “something like a postmodern joke”.
Gaudron, who was Australia’s first female High Court judge, said the only way a parliamentarian could be brought before the proposed commission was if both that parliamentarian and the attorney-general reasonably suspected a crime had been committed.
“It’s unlikely, let me tell you, that a parliamentarian is going to front up and say, ‘I think, on reasonable grounds, that I’ve committed a crime,’ ” Gaudron said.
She said if the attorney-general did hold such suspicions, the commission could disagree and decline to hold a hearing. Alternatively, it could agree and proceed on a matter that really should have gone to the police. “It seems to me that in many respects, this is going to sideline the work of the police,” she warned.
The Australian Federal Police Association’s Troy Roberts voiced concerns the proposed commission would entrench a two-tiered system that singled out police, with public hearings held for investigations into law enforcement officers but not for politicians.
“We have to wonder … why there is that high bar,” Roberts said. “It should be the same rule for everybody.”
This article was first published in the print edition of The Saturday Paper on Dec 12, 2020 as "Integrity concerns".
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