In recent decades, successive Parliaments in Australia and elsewhere have proliferated an extraordinary amount of legislation. Notable features of this phenomenon are the complexity of these statutes and the breadth of discretionary powers bestowed on the executive government with a concomitant deleterious impact on fundamental rights. This panel explores various problems that arise from this...
Australian anti-terrorism law as hyper-legislation
This paper will exhibit aspects of Australia‘s anti-terrorism law as instances of the phenomenon of hyper-legislation. Although much of this law takes the form of criminal law – that is, the establishment of general legal norms prohibiting conduct on pain of punishment – careful attention to the details of the legislation, and to its interaction...
Hyper-legislation and deference to the executive
Two particular features of hyper-legislation are the broad discretion that laws confer on government officials, and the extent to which they authorise officials to make decisions that restrict fundamental rights. These issues pose a challenge for courts, whose role it is to ensure that discretionary powers are exercised lawfully while respecting the mandate of democratically...
Judicial interpretation in the age of hyper-legislation
This paper will outline the phenomenon of hyper-legislation in an Australian (i.e. federal) context and then consider judicial responses to it. It will do so with particular reference to the principle of legality. That inquiry will consider also the role which the principle may increasingly play to ensure that proper consideration is given in statutes...
The age of hyper-legislation?
In order to frame the panel discussion, this paper defines the phenomenon of hyper-legislation and outlines the constitutional problems that it poses. Roach coined the phrase “hyper-legislation“ to describe Australia‘s legislative response to the 9/11 terrorist attacks. Arguably, the phenomenon extends beyond the national security realm. The Australian legal system is now populated by innumerable...