One of the most basic of all constitutional principles is that law is made by parliament.
In Australia, at the Commonwealth level, the answer is affected by different factors, including the entrenched federal Constitution providing for a powerful elected Senate.
These make it clear that, on some matters at least, the will of the parliament will differ from that of the executive and tip the balance in favour of a deliberative style.
It has long been the case that a great deal of law is made by the executive branch, acting pursuant to circumscribed authority from parliament.
Classically, the executive branch for this purpose refers to the Governor-General in Council.
This has the advantages of involving the highest level of executive government for the significant function of executive law-making and doing so in a way that engages the collective responsibility of ministers who are accountable to the legislature.
Constitutional proprieties also are preserved by the formal capacity of parliament to repeal the enabling legislation and by procedures for ex post facto parliamentary scrutiny of the exercise of its delegated authority.While the problem nevertheless remains in play in Australia, it does not affect the principle that parliament makes law.That principle rests not only on the arguments from symbolism to which I have referred but on functional logic as well.There is a deep ambiguity in all parliamentary systems that have derived from Westminster about how parliaments are expected to exercise their authority.The ambiguity stems from the origins of parliament as advisor to the Crown and its long evolution since, in the course of which ministers with the confidence of the parliament assumed the executive authority.At one level, the principle can be understood in symbolic terms.The power of the state to change the rules by which the whole community is bound is extraordinary, even though we take it for granted.I am an outsider, who has studied the Australian constitutional system for a long time, in its own right and in the light of comparative experience.Together, it is our task to canvass some of the most important issues for the practice and principle of executive law-making in Australia as we see them.The ambiguity goes to the extent to which parliament can be expected to be deliberative and is entitled to insist on a view that differs from that of the executive branch.In England, from whence this style of parliament derived, resolution of this question is complicated by the historic aura that surrounds the parliament and its size and relative accessibility on the one hand and an unelected second chamber with power to delay rather than veto on the other.