Plenary executive power seems repugnant to the rule of law. It is often said that such power cannot exist: that all executive power must have legal limits. Yet, it remains unclear which principle or principles of Australian constitutional law would prevent the federal Parliament from conferring plenary executive power. The High Court has suggested that a federal statute purporting to confer an entirely open-ended discretion on a Minister would simply not be a ‘law’, or else lack the requisite connection to a head of power found in ss 51 or 52 of the Australian Constitution. This article examines the latter claim. It explains the nature of the limitations imposed by ss 51 and 52 and the role of the High Court in ensuring that those limitations are complied with. It concludes that the scope of executive power that Parliament may confer is constrained by ss 51 and 52, but not to the extent that has been suggested by the High Court.
This article provides an empirical analysis of the legislative practice of the Australian Parliament and considers its implications for the rule of law. Federal legislation is so voluminous, complex and changeable that it risks diminishing the rule of law, in the sense that it makes the law difficult to know. This could be potentially ameliorated by Australian courts embracing Chevron-style deference, or an administrative law doctrine of legitimate expectations, but neither option is ideal. More broadly, the article comments upon the way in which the rule of law and legislation should be understood in a modern administrative state.
Standards for permissible exposure to radiation and the way they are established must incorporate a set of principles that uphold both health and democracy. When the science is uncertain, the burden of proof that risk is not being imposed should be on the source of the risk, not on the possibly affected public or workforce. Scientific processes must be transparent to the public, must address all relevant risk issues and endpoints (and not only cancer), and must be inclusive of the actual experience and opinion of the people who are exposed to radiation risks. Scientists are too often dismissive of public experience and interests, as for instance with worker illnesses or fallout, even though input from the public and workers has frequently proven to be valuable in the development of radiation protection principles. Incorporating the concerns, views, and experiences of workers and the public in a respectful way while maintaining a high standard of scientific work must be an essential part of the standard-setting process. Further, the clearly enunciated International Commission on Radiological Protection principle that the imposition of risk must be accompanied by a clear benefit needs to be a far more explicit part of standard-setting processes, which must also ensure that all known risks are disclosed and that suspected risks, such as possible synergisms between some radionuclides and hormone-disrupting chemicals, are carefully considered. Finally, given the long-lived nature of risks from many radionuclides and the large uncertainties about future physical, social, economic, and other conditions, the issue of how the interests of future generations can be included in standard setting is a difficult but vital matter.
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