One of the great lessons from Covid-19 has been the need for checks and balances to ensure emergency powers are exercised with proper oversight and democratic control.

This should have been clear from October last year when 26 Victorian barristers, including 23 silks, warned that the state government’s plan to amend the Public Health and Wellbeing Act would allow it to effectively rule by decree without proper parliamentary oversight or the usual checks and balances on executive power.

Some changes were made. But in the light of the latest research, Victoria’s pandemic emergency law still falls short of what is needed if there is to be proper oversight and checks on the exercise of power during the next wave of Covid-19.

The state’s Public Health and Wellbeing Act fails to incorporate almost half – 43 per cent – of the essential checks on power that are part of a scorecard drawn up by the Rule of Law Education Centre.

For those Victorians who were locked in their homes for the best part of a year, this might cause unease about what lies ahead.

But it needs to be kept in perspective: the Rule of Law Education Centre’s scorecard provides a broad indication of the state of the Public Health and Wellbeing Act that is based on subjective and objective assessments.

And while the scorecard has identified problems, it has also made it clear that the law currently in force in Victoria is more in line with democratic standards than the disastrous legislation that was in force before last year’s amendments.

The original Public Health and Wellbeing Act failed to incorporate 85 per cent of the checks on power that are part of the scorecard of the Rule of Law Education Centre.

The second reading speech for last year’s amendments said the bill included “several major new mechanisms … to increase transparency in government decision-making during a pandemic” while “ensuring the legality and accountability of decisions made by government”.

But if the goal was to provide real oversight and real checks on power, those changes should have gone much further.

For Victorians, one of the scorecard’s most startling findings is that the absence of checks and balances on pandemic powers is even worse in NSW. That state’s Public Health Act is missing 68 per cent of the checks and balances listed in the scorecard, compared to 43 per cent for Victoria’s Public Health and Wellbeing Act.

This is in line with a report by the NSW parliamentary research service that found some of the emergency legislation enacted by that state used a technique pioneered by King Henry VIII of England that “can be seen as trumping the work of parliament and as an example of executive overreach”.

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

At the moment, NSW and Victoria are the first states whose pandemic laws have been assessed for compliance with democratic checks and balances. They will not be the last.

Over time, this exercise will be extended to cover the nation.

The centre’s checklist on pandemic emergency powers draws on recommendations made by bodies such as the Australian Human Rights Commission, the Victorian Bar Association, the South Australian Law Society and the World Justice Project.

It covers three broad categories, drawing on those used by the World Justice Project Rule of Law Index, and includes 15 sub factors.

The main categories under consideration are whether internal mechanisms and the legislature limit government powers and whether those powers are limited by independent review.

The scorecard covers issues such as whether health orders and declarations are made by officials or by members of parliament who can be held to account at elections.

It also considers whether parliament is empowered to disallow health orders, whether freedom of speech can be wound back and whether there are contingency arrangements for when parliament can’t meet.

This exercise has identified an authoritarian tendency that is showing up in other Western democracies.

This was made clear last month by Lord Jonathan Sumption, a former judge of Britain’s Supreme Court, when he gave the Menzies Oration at Melbourne University’s Robert Menzies Institute.

“Until March, 2020, it was unthinkable that liberal democracies would confine healthy people to their homes with limited exceptions entirely dependent on the discretion of government ministers,” he said.

“It was unthinkable that a whole population should be subject to criminal penalties for associating with other human beings and answerable to the police for all the most ordinary activities of daily life. We have come to regard the right to live normal lives as a gift of the state. It’s an approach which treats all individuals as instruments of collective policy,” he said.

So who is to blame? Lord Sumption believes people will submit to authoritarian regimes if they are sufficiently frightened.

He also believes the pandemic marks a turning point in which many people are prepared to surrender their liberties to the state.

“I see no reason why politicians should ever want or need to respect basic liberal values if the public is happy to see the back of them,” he said.

The challenge for our times is to prove Lord Sumption wrong.

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