Nearly half of all legislation is now delegated legislation, i.e. made by ministerial orders, and some of it cannot be disallowed by Parliament. Such an extraordinary accumulation of power in the hands of the federal government is dangerous for democracy. A recent Senate committee report proposes strengthening the parliamentary committee system to increase accountability.
The decline of trust in Parliament and other public institutions has dropped markedly over the past few decades. The Democracy 2025 Project, based in Old Parliament House in Canberra, has tracked a fall in public satisfaction with democracy from 78 per cent of survey respondents in 1996 to 41 per cent in 2018.
It has not been a relentless downward plunge. The Project records peaks and troughs in public satisfaction. What is clear, however, is that increasing numbers of Australians feel disconnected from democratic institutions and processes.
They no longer feel they are full participants in, or beneficiaries of, a system that works for them.
This is a crisis not only of liberal democracy but of social democracy too. If it continues, it will undermine the basis of our system of government.
Australia has not witnessed the virtual extinction of constitutional democracy that is taking place in some Eastern European countries such as Hungary and Poland, or political violence on the scale of the storming of the US Capitol on 6 January.
But the kinds of far-right populist movements that initiated these upheavals, and that exploit the anxieties of those who feel alienated from democratic politics, are active here too.
That is why in July 2019 the Senate referred an inquiry into nationhood, national identity and democracy to the Legal and Constitutional Affairs References Committee, which I chaired.
We received 205 submissions and conducted three public hearings, reflecting views from across the political spectrum and all sectors of society.
The report, which records the wide diversity of views tendered in evidence, is a snapshot of what Australians think of their country at this turbulent time in its history and that of the wider world.
Our work, like so much else in public life, was affected by the Covid-19 pandemic, which resulted in several extensions of our reporting date.
During the pandemic, the decline in trust in government that appeared so widespread when our deliberations began seemed to be replaced by a renewed confidence in the power of the Commonwealth and the states to keep Australians safe.
Whether this revival of trust will outlast the pandemic, however, is an open question.
The report proposes increasing public engagement with Parliament by strengthening a far more potent mechanism of accountability, the parliamentary committee system.
Committee inquiries bring the public into the work of the Parliament, drawing on ideas and creativity from across our society and shining a light on the performance of government.
In this era of fake news and conspiracy theories, it is vital that Parliament have access to reliable, evidence and data, and advice from informed sources.
That is why another of the committee’s recommendations was for the establishment of a Parliamentary Office of Science, to give MPs access to independent advice from Australia’s best scientists.
We also argue that MPs must be more vigilant when it comes to defending democratic processes, discharging their responsibilities as elected representatives and ensuring adequate scrutiny of legislation.
Nearly half of all legislation is now delegated legislation, i.e. made by ministerial orders, and some of it cannot be disallowed by Parliament.
The report starts from the premise that our Parliament and other core democratic institutions matter, and that through them we can build a higher level of civic engagement.
That is the best defence of democracy and the best defence means of building a more just and equal society.
Kim Carr is the longest-serving member of the Australian Senate. He is a former minister and shadow minister for higher education, innovation, industry, science and research. He is chair of the Senate Legal and Constitutional Affairs References Committee and serves on several other committees, including the Environment and Communications Committee.
Professor, the Hon Kim Carr, is Vice-Chancellor’s Professorial Fellow, at Monash University.
Comments
5 responses to “We can and must reverse the dramatic decline of trust in Parliament”
I quote:
“Nearly half of all legislation is now delegated legislation, i.e. made by ministerial orders, and some of it cannot be disallowed by Parliament.”
Could someone please educate me as to what is meant by “delegated legislation” and why it would not either be in contempt of Parliament or appealable to the High Court as unconstitutional?
Charles: outstanding point.
Some delegated legislation is important for proper functioning of government.
The High Court has, and continues to, determine whether delegated legislation, and actions under it, are lawful.
Since the 1930s there has been a Senate Committee devoted to overseeing Commonwealth delegated legislation. https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legislation#:~:text=The%20Senate%20Standing%20Committee%20for,and%20principles%20of%20parliamentary%20oversight.
On 2 December last year, it published its first inquiry report – on disallowance (of Covid 19 emergency actions) by Parliament. The report was unanimous.
There were 30 submissions to the inquiry, many excellent. I recommend no.12.
Basically the report decried non-disallowance clauses in legislation.
However…
On 10 December, the Senate, a day after hearing from the Committee chair, passed without division, (i.e. unanimously) or comment, legislation allowing the Prime Minister to (effectively) declare national emergencies, largely defined by self, during which there is a large element of rule by decree without recourse to Parliament.
That legislation included a non-disallowance clause.
Unless otherwise explained, e.g. by Senator Carr (see my comment on this post), I take that as: 86 years to enunciate a foundation democratic principle, and < a week to discard it in practice - in some of the most far reaching legislation in my lifetime. Some details: https://www.thejadebeagle.com/emergency-achieved.html
Then there are the States and delegated legislation actions like locking down capital cities on suspicion of a single Covid case…….
Regards
Parliamentry sittings do not suit the LNP government under Morrison. so lets not bother! Lets have government by an unelected Covid Committee , filled with mates of the PM, lobbyists as appointed advisors to Ministers who write the legislation, new legislation by regulation. The neo libs new democracy!
Senator Carr: I agree with this post’s sentiments, most of the Committee’s recommendations and some dissenting comments.
The introductory paragraph well set out the critical problem – delegated legislation putting Government beyond the ready reach of Parliament. A matter also objected to, on similar ‘danger to democracy’ grounds, in another Senate Committee report, 2 December 2020.
The Committee report gave as an example of the danger:
‘populist governments may seek ‘to take advantage of the crisis to suppress the opposition or increase their powers, especially as the world is focused on other things’….. ‘Hungary was singled out as a prime example, with the head of state ’empowered to rule by decree, aided by unconstitutional extension of the emergency’
So what might be the reason for the Senate on 10 December to pass, without Division or even comment, a Bill with the most far reaching concentration of power in the Government with exactly that defect? Allowing the Prime Minister to call a national emergency for reasons including the threat of harm to an individual?
Looking forward to your response.
Regards
What a welcome inquiry. Beside Australia, I have lived in three other countries, two of which claim to be democracies. Of the three, Australia has the best practice of democracy. Although it is far from prefect, it is all we have got; and any effort to improve it or to prevent it from declining further is timely. Anyway, I have always believed that democracy is an ideal; and where each country is at on the route to that ideal differs from the forces of circumstance. For this reason, I think it is insensitive and arrogant to try to impose it on other countries that we deem not democratic. I believe that they have other priorities that are more urgent and are at a different stage of their development.
While I agree that the biggest part of a constitutional democracy is about representation, I find it hard sometimes to reconcile the idea of representation with leadership. Much as I dislike to mention it, we have an example of a Senator who is xenophobic but had to say “Please explain” when the word was mentioned. We have another who constantly said “Empirical! Empirical!” in a Q&A episode but did not seem to make a connection when Professor Brian Cox produce a wad of data from NASA indicating climate change. Two things come to mind. There should be a level of gatekeeping just to ensure that representation is sound. Failing that, the other is that there must be a level of continuous education to make sure that the basics of a democratic government is observed.
I am saying all of the above from a lived experience.