Democracy Damaged by Covid Overreach

Chris Merritt 11 August 2022

Published in the Australian Newspaper

In the first few months of 2020, when Covid-19 arrived in this country, it did much more than kill people; it triggered emergency measures that damaged parliamentary democracy in ways that should never be repeated.

Instead of holding the executive branch of government to account, parliaments around the nation suspended proceedings and were complicit in an extraordinary transfer of power to federal and state ministers and officials.

In some cases, rules with criminal penalties were imposed on the community with little involvement by parliament. This came at a high price.

It left the impression that democratic law-making is a mere indulgence that can be set aside whenever important issues are at stake.

At the time, emergency rule was explained as a temporary measure to enable officials to protect public health. Yet even in the darkest days of the pandemic it was a mistake to wind back the power of parliament.

Doing so ignored the reality that rules and regulations derive their legitimacy not from all-knowing officials but from democratically elected parliaments that are supposed to hold those officials to account by testing the rigour of their proposals.

The greatest mistake of the pandemic came when parliaments surrendered that responsibility. Parliament alone has the ability to make laws that balance competing interests.

While governments are able to legitimately restrict many human rights in response to a public health emergency, those restrictions always need to be justified, non-discriminatory and proportionate. Proper scrutiny is therefore essential.

Yet long after most systems of governance have returned to something approaching normal, some governments are reluctant to surrender the powers they gained during the early days of the pandemic.

Human rights commissioner Lorraine Finlay made this clear last month at an independent review of the nation’s response to the pandemic that is being run by the e61 Institute, a non-profit research foundation.

“It is concerning that in some jurisdictions state of emergency declarations – which are extraordinary measures intended for short-term use in a crisis situation – have been in place for well over two years,” Finlay told a review panel led by Peter Shergold, a former senior public servant.

The problem is that many emergency measures not only lack democratic legitimacy, they also fail to embed human rights standards into policy responses. The most excessive of those responses have been criticised as potential breaches of international human rights standards.

“Some examples include international and interstate border closures, extended periods of lockdowns, curfews and other restrictions on movement, hotel quarantine; vaccine mandates, and disparities in the severity of restrictions and responses in different localities,” Finlay told the review. The Human Rights Commissioner says one of the most serious potential breaches of human rights obligations was last year’s decision to strand 9000 Australians in India. Anyone who returned home faced five years in prison and a $66,000 fine.

“These are only some of the human rights impacts that have been raised by Australians with me, and with the commission. The impact that pandemic response measures have had on the human rights of Australians is wide-ranging and should, in my view, be the subject of a separate review, building on existing work,” her submission says.

Finlay’s concern is part of a growing consensus that the pandemic caused a transfer of power to the executive branch of government and was accomplished using techniques that have no place in modern Australia.

The NSW parliamentary research service has produced a report on law-making during the pandemic that says some of the emergency legislation enacted by that state used a technique pioneered by King Henry VIII that “can be seen as trumping the work of parliament and as an example of executive overreach”.

“Henry VIII clauses”, once inserted into legislation, permit regulations made by ministers and officials to amend the requirements of primary legislation enacted by parliament.

“Some of the emergency legislation passed by the NSW parliament in response to the Covid-19 pandemic included Henry VIII clauses,” the research service says in a report produced in July last year.

So while parliament might have agreed on a law that says one thing, a Henry VIII clause allows this to be changed by regulation without the inconvenience of additional scrutiny.

But who is to blame? Whenever parliaments allow these sorts of provisions to be included in legislation they are abrogating their responsibilities and handing power to the executive.

Unlike other states and territories, NSW did not declare a state of emergency but took advantage of powers under the Public Health Act that allowed its health minister to issue directions that remained in force for 90 days and could not be disallowed by parliament.

In April, just before the federal election, a Senate select committee expressed concern about what it described as “an unprecedented transfer of power to executive government and its agencies”.

It found that emergency law-making undertaken in response to the pandemic had “challenged the Australian parliament’s capacity to provide meaningful scrutiny of proposed laws, particularly in identifying and addressing the impact of emergency powers on the rights of individuals”.

The select committee that produced that report had been chaired by Katy Gallagher, who is now finance minister, and is well placed to give impetus to her committee’s call for a royal commission to ensure the nation is prepared for the next wave of Covid-19 and other pandemics.

This is in line with Finlay’s view that a review is needed to ensure all governments learn from the mistakes and human rights abuses that took place during the pandemic.

Chris Merritt is vice-president of the Rule of Law Institute of Australia.