Broader inquiry needed into States Pandemic Response

25 August 2022

Anthony Albanese’s pursuit of Scott Morrison’s secret ministerial appointments has entered a period of high risk.

The prime minister’s credibility on this issue depends on the breadth of the inquiry that will soon take place.

Morrison’s conduct needs to be examined but only as part of a broad inquiry into lawmaking during the pandemic and how real power was transferred from parliament to the executive branch of government. That needs to cover the states as well as the federal government to ensure parliamentary control of the executive branch is maintained during the next emergency.

Albanese has rightly observed that Morrison’s secret decision to appoint himself to five ministries undermined the doctrine of responsible government: the executive is responsible to the parliament.

Solicitor-General Stephen Donoghue QC agrees, but it needs to be kept in mind that O’Donoghue merely provided a legal opinion. He did not conduct an inquiry.

Because responsible government is of constitutional importance, it would be irresponsible not to conduct an inquiry after being warned that the doctrine had been undermined.

But if the inquiry focuses only on Morrison and ignores the states it will send the wrong message. Instead of being accepted as a legitimate response to the erosion of democratic norms, it will be dismissed as a move to get square with the Coalition.

A research project by the Rule of Law Institute on the use of emergency powers has identified problems for the states that should be part of the inquiry.

National cabinet was supposed to be co-ordinating the response to the pandemic, but the preliminary results from the institute’s research have identified major inconsistencies in the way the states handed power to officials and informed the community about what was happening.

Health orders in NSW, for example, remained valid for 90 days even if they were not published in the Government Gazette.