The elected or the appointed

There was a time, no so long ago, when there was the legislative, executive and the judicial.  Now we have the administrative, legislative, executive and the judicial.

And it seems that the administrative has primacy above the others, at least so believes the administrative.

Take for example the following comment from (relatively) new ASIC Commissioner Daniel Crennan QC:

We at the commission level would like to see the completion of the taskforce legislative reform but of course we understand there’s a lot of other important legislative reform, not just about regulation, going on as well.

The last little qualification about other reform was a nice touch, but really, who is in charge – the elected or the appointed?  Are there any other public servants who believe it is their role to instruct the members of the executive council on priorities and actions?  Or should that be any who don’t believe it is their role?

Who’s in charge – the elected or appointed? – Brexit anyone?

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13 Responses to The elected or the appointed

  1. a happy little debunker

    ‘Yes Minister’ was a documentary, wasn’t it?

  2. Behind Enemy Lines

    It’s not as sinister as it sounds.

    The regulators have a critical role in identifying and advancing suggestions for legislative change, off their own bat.

    Ministers and parliamentary secretaries generally arrive with a sense of what they’d like to accomplish, but zero technical background in the subject. Same for their advisors. At the same time, Australian business continues to work under and test the regulations under real-life conditions. And the world goes on, with infinite complex changes that cut across existing legislation in ways that one simply can’t anticipate.

    For the regulator — that is, the government’s body of experts on a given set of legislation — this means there is an ever-evolving set of new legislative needs and fixes to be made. A critical part of their job is to stay on the front foot, keep an eye on developments and then (on their own initiative) make suitable recommendations for the government to consider.

    Addressing these is done under a heavily rules- and process-based system, which involves explaining the issues to the minister’s office and gaining official imprimatur, anticipating likely costs, consulting the public, and of course ultimately moving legislation through parliament. It involves an immense amount of back-and-forth, cross-portfolio negotiation and so on.

    The regulators would be remiss if they didn’t have a stack of possible legislation (more exactly, a set of proposed legislative priorities) for executive consideration. But they aren’t instructing the executive on priorities. They advance their recommendations, and prioritisation is fought out at portfolio level, based on discussion between the ministers and their staffs.

    [This is not to say that the legislative ideas are all sound, or that the priority list make best sense for Australia.]

  3. @ Behind Enemy Lines

    “identifying and advancing suggestions for legislative change”

    Entirely fair and valid. But this is not identifying – it has already be identified. It as about publicly and loudly giving them a hurry along. One thing to do discretely behind closed doors. Another to do loudly in the media.

  4. Roger

    You eat me to it, debunker.

    Perhaps Sparty is too young to have seen ‘Yes Minister’?

  5. Roger

    beat…damned sticky keyboard.

  6. Bruce

    Or, as seems to be the norm, use their media arm, (LSM), to lay the propaganda groundwork to “encourage” the enactment of the laws and regulations that THEY want.

    Every year that passes, “Yes Minister / Prime Minister” seems to be more a TRAINING FILM series than a “docco” or whimsical comedy in the spirit of Gilbert and Sullivan.

  7. Cementafriend

    All senior appointed officials including the Govenor General should be subject to recall by citizen iniated refrenda as in Switzerland. The govrnor of the reserve bank is doing the wrong thing by lowering interest rates below 1.5%. Growth of the economy could easily be achieved by the government removing RET and stop subsidising wind and solar etc to get electricity prices down.

  8. max

    The Crucial Pillar of the New World Order
    By Gary North
    February 4, 2012


    The modern war for political power is a war over two systems of control: democracy vs. bureaucracy. Democracy counts votes. Bureaucracy counts exams. Democracy screens access to power by vote-getting. Bureaucracy screens access by examination, followed by tenure. Politics secures power by patronage funded by tax money. Bureaucracy secures power by enforcing rules that are written by the bureaucracy, interpreted by the bureaucracy, and enforced by the bureaucracy. The term for this process is “administrative law.” This thesis was laid out by Harvard legal historian Harold Berman in the Introduction to his book, (1983). I regard this introduction as the most important essay I have ever read. He argued that the West is losing its liberty because of the relentless spread of administrative law, which is undermining the Western legal tradition.

    Bureaucracy is based on substituting examinations and academic criteria for votes. We begin to get to the heart of the matter when we look at the steady replacement of democracy by bureaucracy. When a Civil Service system replaced the spoils system in the United States, the Old World Order of politics was itself replaced. The culmination of this process was the New Deal. It came to power by votes. Its legacy, secured by Truman, was massive bureaucracy.
    This process has happened all over the West. The original Anglo-American model was based on two things: family connections and access to the two major universities, Oxford and Cambridge. The elite sent their sons there, not for formal education, which everyone knew was irrelevant, but for contacts: the old boy network. In the United States, Harvard, then Yale, then Princeton served as the equivalents.

    The rival model to England’s was Prussia’s. It began in the aftermath of Napoleon’s defeat of the Prussian military in 1806. It was an imitation of the French system, which Napoleon was developing: the premier academies. Passing exams was crucial to entry into power. The University of Berlin was the central institution, but there were other universities with influence.

    In the United States, the English model served the elite from 1636 to 1960. The elite, trained in a handful of elite universities, have controlled the common people by means of the tax-funded Prussian school system. The sons of the elite go to the prep schools and the 20 elite universities. The masses go to public schools, K-graduate school. A handful of elite graduate schools, law schools, and business schools let a few carefully screened “Prussians” enter the elite. Think “the Clintons.” They got to go to Yale Law School. They were outsiders. The two Bushes, father and son, weren’t.

    This conflict between “Britain” and “Prussia” has gone on in the United States ever since the 1840s: the coming of tax-funded schools in New England.

    The Prussian system is now winning.

  9. Behind Enemy Lines

    The Artist Formerly Known As Spartacus
    #3035039, posted on June 5, 2019 at 10:53 am
    @ Behind Enemy Lines

    “identifying and advancing suggestions for legislative change”

    Entirely fair and valid. But this is not identifying – it has already be identified. It as about publicly and loudly giving them a hurry along. One thing to do discretely behind closed doors. Another to do loudly in the media.

    I do think there are serious problems with the Administrative State – but I don’t see this as a really good example.

    There’s been an official review, recommendations were made, and the government’s accepted a number of them and agreed to act. The legislation’s been put in train. Some items very likely got stuck in transmission during the election, and will have to be restarted. Others were put on ice until after the election. And now, here we are. There’s nothing sinister about the chap saying he’d be pleased to see it done. In essence, it’s his agency’s job to get it done. Full marks for advancing what remains, after all, the government’s own agenda. At the same time, he recognises that there are other priorities – in other words, he acknowledges that the government will make its own decisions, in its own time, about what gets done and when.

  10. max

    Harold Berman was convinced that a seventh revolution began in the early 20th century: administrative law. This revolution separates the courts from the executive and the legislative branch. It separates the idea of law as possessing a separate foundation and separate jurisdiction from the executive. This revolution centralizes power in the state, and crushes the earlier legal revolutions. I disagreed with him with respect to the Russian Revolution. I think it was an administrative law revolution. But that tradition ended in December 1991.
    The legal revolution of administrative law is the greatest single threat to liberty in the world today, and it is firmly locked into the American social and legal order. People unthinkingly accept it. They are unaware of it. They do not understand the implications of the Federal Register, which now publishes 80,000 pages of fine print administrative law every year.

    Politics is impotent to change this. Politics is unaware of it. Those few laws that get passed by Congress and signed into law by the President are then administered by the federal bureaucracy, and there is almost nothing that a President or Congress can do to stop it. Occasionally, the Supreme Court may hand down a ruling that will stop some minor aspect of the expansion of the federal bureaucracy, but this is rare.

    Berman did not see anything on the horizon that would indicate a rollback of administrative law.


    One thing can stop it: the Great Default. As long as the money rolls in, whether taxed, borrowed, or printed, administrative law courts are going to expand their jurisdictions, and our freedom is going to be constrained. Something else is shrinking it: Moore’s law. This was described best in Kurzweil’s article. The escalating effect of Moore’s law in reducing the cost of information is changing the whole world in ways we can barely perceive today. There is no way that any federal bureaucracy can keep up with the social, economic, educational, and political transformations that are taking place as a result of Moore’s law.

    Law is now moving back to the private sector. It is moving away from centralized government control. Arbitration is becoming more popular. People are finding ways to participate in the world economy that are outside the jurisdiction of the administrative state.

    I do not believe that bitcoin is going to make a difference, but I would like to believe that, someday, something like bitcoin will work. In any case, Moore’s law is on the side of decentralization. Decentralization is basic to Edmund Burke’s theory of conservatism. It is consistent with Ludwig von Mises’s system of economic analysis. It is consistent with private education. It is therefore a threat to Hamiltonianism, which means central banking and Keynesianism.

  11. Leo G

    There was a time, no so long ago, when there was the legislative, executive and the judicial.

    The dream time.
    The administrative accords with reality. The legislative, executive and judicial are merely legal fabrications.

  12. Nato

    Independent bodies allow for the denial of ministerial responsibility and claims that government has done something.
    They are unaccountable and assured a continued future through the power of legislation and future growth through bureaucratic creep.
    The only threat to the administrative wing is success in ending the social ill that originally called them into being.

  13. Suburban Boy

    For the umpteenth time: the administrative “branch” is simply part of the executive branch of government. Constitutionally, it falls under Chapter II of the Commonwealth Constitution.

    Having said that, yes it is dangerously unaccountable to the people.

    Blame the politicians for that – through Acts of Parliament they give the administrators the power and autonomy that limit effective oversight. Start the finger-pointing with Ministers Frydenberg and Hume, the two directly responsible for ASIC.

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