The Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Bill 2015, which was recently introduced into the Western Australian Parliament, represents the latest addition to what is unfortunately a long list of instances of executive overreach. In this case, though, the violation of the basic tenets of the separation of powers and the rule of law is particularly egregious, assuming this bill becomes law.
As is usually the case when the executive arm of government exceeds the traditional bounds of its powers, the argument in favour of this bill is superficially attractive. Roughly $1.7 billion in proceeds from the liquidation of the Bell Group of companies in the early 1990s is to be protected from being eaten up in lawyers’ fees through protracted litigation.
Putting aside the question of whether legitimate concerns are being addressed through the litigation or the naked self-interest on the part of the WA Government (a government-owned corporation is expected to be one of the main beneficiaries from the litigation ceasing), there are a number of elements of the bill that are deeply concerning.
First among these is section 47 of the bill, which imposes penalties up to $200,000 and/or 5 years’ imprisonment for any action “impeding the operation” of the bill “or the achievement of its objects”. This could be legitimately interpreted as applying to any legal challenge to the bill’s validity, meaning large penalties may be imposed for calling out the government for exceeding its authority. The implications for the rule of law of this provision on its own are very significant as this could be a precedent for governments exceeding their legitimate authority and pre-empting any appropriate challenge to such excess.
Compounding this abuse of authority is the second area of particular concern, section 67, which removes the right to appeal any decision made under the bill (once it has become a law). This represents a significant challenge to the traditional separation of powers as it exists in Australia and upon which many of the freedoms that we take for granted rest. The judiciary is meant to act as a check and balance on executive action – where the government exceeds its authority, the courts are there as the forum where such excesses can be challenged and rectified. The bill, though, seeks to remove this check and balance, leaving the executive to act unrestricted.
It is interesting to observe that similar provisions, where executive action could not be challenged in a court, were the basis on which the High Court struck down legislation seeking to outlaw the Communist Party in the 1950s. Australia’s traditional system of checks and balances worked then; it is a shame to see that two thirds of a century later governments still seek to exceed their authority and avoid being held to account. If for no other reason, this attempt at implementing unrestricted government power, even if well-intentioned, should be concerning to any person who cherishes our free society.