Illustration: Andrew Dyson Indeed, Ciobo's response is probably the most instructive point to emerge from the fiasco and illustrates precisely why serious decisions which have the potential to be politicised - such as the stripping of citizenship in cases of suspected terrorism - should not be left to an unsupervised executive under such loosely-framed criteria. Under a Westminster system of government such as ours, the members of the executive branch of government are drawn from the majority party in an elected Parliament. This can have two overlapping consequences when it comes to the administration of government power. First, by its nature, the majority in Parliament will control the legislative agenda. This becomes problematic when the majority party's control goes so far that the executive effectively wields the legislative power of Parliament. This may happen through suppression of dissent within the parliamentary party, through large majorities in both houses of Parliament, and, as we have seen employed to great effect by this government in relation to its border and national security policies, through wedging an opposition politically, such that it cannot oppose the agenda without incurring electoral damage. While this might make good politics, the result of an executive wielding Parliament's legislative power is a debilitated Parliament, unable to perform its traditional constitutional role as defender of individual rights from the encroachment of the executive, a role especially important in Australia given the absence of a constitutional Bill of Rights.

The second consequence of the Westminster system - the consequence that Ciobo's comments on Q&A betrayed - is the potential politicisation of executive decision-making to the detriment of the good administration of government power. In response to Mallah's question, essentially asking if, under the proposed citizenship amendments, he, as somebody once charged with plotting terrorism and convicted of threatening a Commonwealth officer, would have his citizenship revoked, Ciobo replied, "I'm happy to look you straight in the eye and say that I would be pleased to be part of a government that would say that you're out of the country as far as I'm concerned." His response was provocative, sure, but it was also rash, indifferent to the particulars of Mallah's case, and delivered with the sort of absolutism the Liberal Party core constituency would have lapped up. It illustrated precisely the concern that many opponents have with granting such decision-making power to a government minister: that where an administrative decision is politically sensitive, an executive decision-maker is susceptible to political bias, susceptible to the sort of knee-jerk and politically-expedient decision making that is electorally popular, but without the necessary good-faith regard for the public interest and good administration of power. Similar charges may be laid at the feet of successive ministers for immigration from both sides of politics who have refused visas or release from indefinite detention to refugees found by ASIO to be threats to security, even where there has been no finding in relation to their threat to community safety. A utilitarian public interest is not always consistent with the preference of the majority. Raw populism rarely, if ever, makes good policy.

It is arguable that this is a deliberate consequence of the Westminster system; that an essential aspect of executive decision-making is its political nature. To be sure, a traditional distinction between policy/political questions for the executive, and legal questions for judges, is the executive's entitlement to balance the public interest against any individual concerns. However, this can only be legitimately the case when administrative decisions are made responsibly, in good faith, and not for political gain. After all, a utilitarian public interest is not always consistent with the preference of the majority. Raw populism rarely, if ever, makes good policy. This is especially so when politicians and corners of the media actively seek to distort a debate through fearmongering and shutting down debate by suppressing opinion. The inherent conflict in the role of a government minister plucked from an elected parliament gives rise at least to an apprehension of this political bias, even in circumstances where such cases of executive maladministration are probably rare and certainly unprovable. Britain, the birthplace of the Westminster system, is faced with similar issues. Its judiciary has stepped in to arrest the creep of unrestrained executive power. There, as some sort of counterbalance to executive excess, courts have embraced expanded powers, including enhanced scrutiny of administrative decisions, applying human rights standards, and in extreme cases reserving the right to overturn legislation egregious to the rule of law. https://www.supremecourt.uk/docs/speech_110628.pdf.

In Australia, the High Court has advanced more cautiously when it has come to policing executive power, hesitant to involve itself in anything it perceives as political. Certainly this has been the traditional role of the judiciary in the constitutional balance of power between the three branches of government. However, as we have seen, these traditional roles are changing. In the face of ever-increasing apprehension of constitutional misbehaviour from the executive, and a Parliament impotent to restrain it, it is appropriate for the third branch, the judiciary, to step in as a circuit breaker, standing as the ultimate safeguard of our core values, including rule of law principles and the fundamental individual rights peppered throughout the history of the common law. Andrew White is an administrative lawyer.