Industrial relations aside, the two big-ticket items since the change of government have been Telstra and Aboriginal affairs. Perhaps it was coincidence, but the legislation for each reveals a change of, what sociologists call, the dynamic between the legislature and the executive.
In the days when the executive usually controlled the legislature in Australian federal and state parliaments … from about 1942 to 1972 … large slabs of the legislative function were delegated … without a right of parliamentary veto … to the executive. Typically, this meant legislation along the following lines:
“”This is an Act to do XYZ. . . . It will come into effect on a date the Minister sees fit. The Minister may make regulations not inconsistent with this Act to do whatever he wants with respect to XYZ.”
Then the legislature got a bit uppity (especially Upper Houses), and demanded the right of either House to disallow ministerial action. The legislature was sick of being treated like a rubber stamp and did not like the dictatorship of the Minister and the bureaucracy. But some legislative drafters continued to work as if the old rules applied. The 1987 Australia Card legislation, for example presumed the Minister could create a starting date for the legislation. And despite all the fuss of the double dissolution the legislation was worthless because the Minister’s starting date was subject to disallowance by the Senate.
As a consequence of that fiasco, a lot less legislation gave critical disallowable functions to the Minister. There has been a greater recognition that the executive government is one thing and the Parliament is another. It has meant that governments, having struggled through the bargaining process to get minor parties or the Opposition to agree to legislation, have made the legislation self-executing, rather than dependent on the Minister nominating the starting date.
For example, key amendments last year to the Aboriginal and Torres Strait Islander Commission Act (providing for an elected chair) did not say they would come into effect when the Minister decided, but on July 1, 1996. If the ATSIC Act had been drafted under the old Minister-decides formula, the new government could have simply not proclaimed the new law. But under the new, post-Australia Card environment, the new Government now has to repeal a law that has not yet come into effect if it wants to keep the status quo of an appointed ATSIC chair.
There are a stack of other examples in the pipeline, though they are less sensitive. A swag of copyright-law changes, for example, are to come into effect a year after a world trade treaty comes into effect. In the old days of less suspicion between the executive and legislature this would have been left to be proclaimed by the minister at the appropriate time.
Similarly, self-executing amendments to the National Health Act, the Navigation Act and Therapeutic Goods Act will come in to force on certain days after treaties come into effect or on dates running out to 1998.
And it will cut the other way. Governments fearful of losing government down the track will use legislation to lock things in that would otherwise have been left to ministerial discretion. Hitherto, government trading enterprises, such a Telstra, were run with a large degree of ministerial discretion. Labor’s legislative legacy to the new government, however, has been to lock things away with legislation that would require new legislation and therefore approval by both Houses’ and Democrats to undo.
Such legislation prohibits sale of Telstra by the Commonwealth, and similar provisions apply to the Commonwealth Bank and the Australian Overseas Telecommunications Corporations Act.
In short, the statute books now contain quite a few things that tie the hands of the new government, which in the past could have been overturned by ministerial signature. The separation of powers has taken on a stronger meaning.
Expect to see more of it as the new dog learns old tricks. Once minor-party agreement has been negotiated as much as possible of the executive’s agenda will be cemented in legislation so it cannot be undone by ministerial whim.