Archival tape -- Professor Lorne Neudorf:

What's at stake here is, you know, who are we as a democratic society that values the rule of law?

And if we allow this to happen, if we allow more and more of our laws to be made behind closed doors by the government outside of parliament and now even avoiding committee scrutiny and the disallowance process, you know, what does that say about us as a democracy?

I think it raises some very serious concerns and some very troubling concerns. And I think if it is allowed to continue, I think you are undermining democracy.

RUBY:

From Schwartz Media, I’m Ruby Jones, this is 7am.

During Covid-19, the government has increasingly been using legislative powers to bypass the parliament.

The use of so-called Henry VIII clauses means that some of these laws cannot be amended or overturned.

Today, Karen Middleton on what this means for our democracy.

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RUBY:

Karen, can you tell me about the way in which legislation is bypassing the parliament and its usual processes?

KAREN:

Yes. So legislation usually passes both houses of parliament to become law. It has to go through the House of Representatives and the Senate. And there are particular rules about where it has to start, but it has to be passed in identical form by both houses of parliament to become law.

RUBY:

Karen Middleton is The Saturday Paper’s chief political correspondent.

KAREN:

There are some exceptions to this, and that involves delegated legislation, which we sometimes refer to as regulations. And there is a power for the government to make adjustments to those laws by decree, if you like, just by making a declaration and not having to have it passed the parliament, but mostly in order for the parliament to retain some kind of role in scrutinising this, it at least is allowed to disallow those regulations. So if a piece of delegated legislation is made and the parliament decides it doesn't like the look of it, there is a process by which it can be voted on and disallowed.

But increasingly, the government has introduced exemptions to that, meaning that in some cases, some pieces of delegated legislation can't be disallowed, which means they're just allowed to stand. And the parliament has no role in either crafting them or in removing them.

RUBY:

And this is something that is happening more and more?

KAREN:

Yes. So we've seen a growing tendency to use delegated legislation because governments have argued that it's quicker, it's easier. And when they're just making a straightforward change, it's something that doesn't need to involve the parliament, which has got other priorities and other things to do. But this current government has been using it more and more. And the percentages of that legislation that are being exempted from disallowance are also increasing, and particularly in the current climate where we've got a global pandemic, a health crisis and now an economic crisis in Australia, the use of delegated legislation has grown and so have the exemptions.

RUBY:

And what about the Henry VIII clauses? How do they fit into this?

KAREN:

Well, this is an interesting aspect of all of this. There are these clauses that are known as Henry VIII clauses, and they're named that way because Henry VIII was a ruler back in the day in England who didn't like consulting parliament. He sat on the throne and liked to make a number of decisions from on high and did not want them having to go through parliament and be debated, discussed and maybe not approved.

So these clauses are clauses that are being increasingly put into the delegated legislation that not only affect the immediate thing that they're about, but they also affect primary legislation. So other laws that have gone through parliament and have been voted on and passed. So they're not only adding to those, but in some cases subtracting from them, and actually changing the primary legislation. And that puts them in a slightly different category. They're not just an adjunct, but they are actually amending laws that were originally required to go through parliament. But these changes, these amendments, are not having to do that.

RUBY:

And Karen, what sort of legislation are we talking about here? What are the policy areas that are affected?

KAREN:

Well, a couple of the big ones relate to the Social Security Act and the Corporations Act. In the case of Social Security, the government's made some amendments to that using these Henry VIII clauses that haven't gone through the parliament that have been declared to be changes to the act.

For example, I think some of the effect, the extension of the pilot program on the cashless welfare card in indigenous communities. The pilot program was due to expire and has been extended using one of these clauses.

And in other cases, under the Corporations Act, it affects some of the decisions made about businesses, the arrangements involving businesses through the pandemic. But the Corporations Act itself has been amended in a couple of ways.

When those clauses are added, they usually have a sunset arrangement that they are going to expire after a certain time. So it isn't a permanent change to the original legislation. But in this case, the government has also granted itself an extension by six months. So when they would normally be due to sunset or finish later this year, the powers will exist that amend that other legislation going into next year, potentially for another six months.

RUBY:

So is this a fairly big change to how we expect a democracy to operate?

KAREN:

Well, I think there's an assumption that the parliament is there to scrutinise proposed laws, make adjustments where it thinks it's necessary, and then give them the stamp of approval and reject the ones that it doesn't think are necessary. But in this case, the power to make laws is being taken away from the parliament and it's being given just to the executive government.

And so there's naturally less transparency about the process leading to the creation of the delegated legislation. And there's less accountability in terms of the parliament and the parliament's role in making laws as set down in the Constitution. It's supposed to be the supreme law making body in the country. And then the high court scrutinizes the application of those laws. And we have seen the high court once or twice in recent years sort of hint at its concern that the increasing use of legislation that doesn't follow the standard procedure of going through both houses of parliament and being approved in identical form by both, is potentially breaching that arrangement under the Constitution for the supreme law making role of parliament. So it does have serious implications for democracy.

RUBY:

We'll be back after this.

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RUBY:

Karen, we're talking about the legislation that's bypassing the parliament. Are there people in parliament, though, who are raising concerns about this?

KAREN:

Yeah. So there are a couple of committees in the parliament whose job it is to scrutinize legislation before it passes and after it passes, in some cases in the Senate. There are two committees in particular, the Scrutiny of Bills committee that looks at all the legislation that follows the normal path going through both houses. And then there's the scrutiny of the delegated legislation committee, which looks particularly at those instruments that don't have to pass through the parliament.

That committee has raised concerns particularly strongly recently about the increased use of delegated legislation, in some cases for things that that committee thinks should really go before parliament rather than just have the executive government making a decision. And it's become increasingly concerned about that. And then on top of that, about the practice of these exemptions being granted.

So they've called an inquiry to look at the extensive use of exemptions and to investigate whether or not they're being well used.

RUBY:

How strong are the concerns that are being raised?

KAREN:

I think they're saying they're very strong. I mean, they thought they were significant enough to justify holding the inquiry and then making this submission in the first place. I think they think that it goes to the heart of the way our system works and is meant to work the Westminster system. And even though it's a sort of a maybe in a nerdy kind of parliamentary practice issue that not everyone would focus on, it does go quite deep - to the way our democracy runs, and the question of accountability, and if our parliament, who we elect to keep an eye on things, is not able to keep an eye on things because the government is choosing to go around it, then that's potentially a big problem.

RUBY:

Karen, can you tell me about who’s making these submissions to the delegated legislation committee?

KAREN:

So Lorne Neudorf, Professor Neudorf, is one of the academics and legal experts who's made a submission to the committee.

Archival tape -- Neudorf:

My submission response to the inquiry about the use of exemptions.

KAREN:

He's based at Adelaide University and he's a law professor and he's been looking at the issue, particularly of delegated legislation and the use of exemptions. He's been looking at the issue in a number of different countries.

Archival tape -- Neudorf:

So I've been carrying out a study for the past two years looking at the question of delegated legislation. The fact that it's being used more and more by governments to basically get around the parliamentary law making process.

KAREN:

He's concerned at the growing use of exemptions.

Archival tape -- Neudorf:

What I'm seeing is kind of a broader trend of using it and also essentially exempting it, are trying to get it exempted from scrutiny.

KAREN:

He points to the pandemic since earlier in the year. And the fact that the committee is scrutinizing committee has found that more than 20 per cent of the delegated instruments that have been created to address the pandemic are exempt from disallowance.

Archival tape -- Neudorf:

Maybe there is a good reason for exemption once in a while for particular uses. But when you see it starting to get up to 20 percent, you think what is really going on here?

KAREN:

So he is really raising a concern that he thinks that parliament should be what he calls the law maker in chief and that this process is potentially undermining that role.

RUBY:

And in all your time in the press gallery, have you seen this level of delegated legislation being used?

KAREN:

Well, I haven't charted it historically, I'm relying on the statistics that the the committee that's holding the inquiry have produced, but they are suggesting that it's increased. It's always been a practice. You're allowed to do this as a government, but it's the question of how much it's doing it and in what circumstances and whether those circumstances have now widened. So you are seeing money being appropriated to give out in grants and you were seeing the use of delegated legislation in circumstances where you never would have before. So the assumption that parliament is supreme is starting to be eroded. And it's a bit of a slippery slope situation, I think.

And that's where the critics are saying enough is enough. We really need to blow the whistle on this and we need to be more vigilant about what the rules are around what legislation can be made in this quick form by an executive government not involving the parliament.

And of that, what legislation really justifies being exempt from any kind of parliamentary scrutiny and whether too much of it is being put in that camp. And certainly the question of Henry VII clauses, whether it's legitimate to use these mechanisms that don't get parliamentary scrutiny to also change other unrelated legislation that has been through the parliament.

So there's obviously been a decision taken among the senators in particular that we've got to a stage where this practice is too widespread and it needs to be reined in.

RUBY:

Karen, thank you so much for your time today.

KAREN:

Thanks, Ruby.

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RUBY:

Also in the news -

Victoria’s Police Commissioner Shane Patton has revealed that hundreds more police have been added to the operation enforcing Covid-19 restrictions in the state.

As part of ‘Operation Sentinel’ police will be setting up roadblocks on major roads leading out of Melbourne.

Victoria recorded 134 new cases of coronavirus yesterday, making it the third day in a row with more than 100 new cases.

Meanwhile the Prime Minister Scott Morrison has flagged that the number of people coming into Australia could be further reduced, in a bid to ease the burden of administering hotel quarantine.

I’m Ruby Jones, this is 7am, see you tomorrow.