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 and often prolix statutes, many of which confer expansive powers on the executive. This bespeaks a broader shift in the way in which statutes are used: statutes are now often used to create a legal framework within which the executive can act, rather than to communicate legal norms to “the people”. An appreciation of this practice may illuminate the answers to three fundamental constitutional questions: what are the requirements of the rule of law? What is the correct objective and method of statutory interpretation? And, what is the purpose and scope of judicial review of executive action?