Unelected Officials Are Stifling Our Democratic Freedoms

Finally there’s a serious conversation happening about the Australian Parliament’s scorn for democratic accountability and the rule of law.

It was always going to be a bit controversial to propose absolute ministerial discretion to strip citizenship from dual nationals on the 800th anniversary of Magna Carta, that great symbol against arbitrary power.

But we’ve had a rule of law problem for a very long time in Australia. Long before the Islamic State. Long before al-Qaeda. And that problem has gone largely unnoticed – whether due to a lack of awareness or a lack of interest – by those groups now furious about the Abbott government’s national security policies.

Let’s start with the most basic rule of law principle: that we all deserve legal protections when accused of an offence, whether that offence is terrorism or traffic violation.

Last year the Institute of Public Affairs conducted an audit of all Commonwealth legislation and found 262 provisions of federal law that violated fundamental legal rights. These either removed the right to silence, removed the privilege against self-incrimination, reversed the burden of proof, or did away with “natural justice” – the suite of rights like the right to a trial, to appeal judgments or to know what we are charged with.

These violations aren’t just found in the sorts of laws that the human rights community was talking about this week – anti-terror and immigration laws. They’re found in economic laws like the Australian Competition and Consumer Act 2010 (that regulates mergers and consumer protection) or the Navigation Act 2012 (which regulates shipping) or the Broadcasting Services Act 1992 (which regulates broadcast media). The Fair Work Act violates all four legal rights.

In other words, they’re targeted at people in business, not just people in terrorist organisations. The Tax Administration Act has nearly as many violations of the right to natural justice as the Migration Act does.

Shortly after the 2013 election, the new attorney-general George Brandis directed the Australian Law Reform Commission to look at laws which limit traditional rights and liberties with a particular focus on workplace, commercial and environmental law.

You’d have thought such an investigation would have been well covered already by the Australian Human Rights Commission. But the commission, along with Australia’s human rights community more generally, have utterly neglected limits on personal freedom when they are bundled up with limits on our freedom to trade, truck and barter.

In a recent speech, the commission’s head Gillian Triggs pointed to all the post-September 11 laws which limit rights in the name of anti-terrorism. What about those which limit rights in the name of market failure?

It’s only economists and the occasional corporate lawyer that have been talking about, for instance, the draconian powers of the Australian Securities and Investments Commission.

Of course, rule of law is about more than personal legal protections. It describes the principle that administrative decisions should be made by elected officials and according to due process.

Parliament should write the laws and control the purse strings. Many of these principles can be traced back to Magna Carta. These principles have come under sustained assault in recent decades.

The prospect of ministerial discretion to strip citizenship without judicial review is just a tiny window into a much deeper problem.

For instance, Australian governments have vested more and more decision-making power outside Parliament and into “independent” bureaucratic agencies. These undemocratic, unelected officials have enough discretionary power to effectively make government policy.

Just last month the Tax Commissioner was granted the power to change tax law if he felt doing so would be in the interest of taxpayers. But it is Parliament’s job to make and amend the law of the land, not the bureaucracy’s. Other regulatory agencies have similar powers.

In many ways Australia is not a liberal democratic state, but a democratic-administrative state, where power is shared between elected representatives and a permanent network of independent bureaucracies who are only loosely answerable to Parliament, let alone voters. Some of the basic institutions of our government are undemocratic.

Gillian Triggs was right to say our democratic freedoms are under threat. Still, did she see any irony in the fact that the democratically elected Abbott government obviously wants to fire her but – since she commands an independent statutory agency – it cannot?

In 2012 Parliament passed a bill giving the government blanket authorisation to spend money on basically anything it wanted without having to ask Parliament’s permission first. The bill was rushed through with bipartisan support following the school chaplains case in the High Court. It was barely noticed by the press. Yet it was one of the most complete surrenders of parliamentary responsibility in the last half century.

There are serious problems with the Abbott government’s citizenship-stripping proposal. Coalition members might be happy with Peter Dutton holding such power. But all governments are temporary. Will they be just as happy when the next Labor immigration minister is able to wield the same powers?

This is the thing about the rule of law. Just as it protects good people and bad ones, it constrains good governments and bad governments alike. To abandon the rule of law is not just to abandon those protections, but to erode democracy itself.