Why emergency rules need scrutiny
Public health rules with massive criminal penalties have escaped parliamentary oversight,
IT has been said that adversity does not build character, it reveals it. If that is the case then the COVID-19 crisis has revealed a lot of good things about Tasmanians – not least our willingness to exercise selfrestraint for the common good – and some bad. One of the more concerning revelations is our apparent willingness to forgo principles of parliamentary democracy in a time of crisis. Indeed, our parliament was sidelined from the very outset of the declaration of a public health emergency, when it was adjourned and its members sent home (at that point for six months). Government, on the other hand, did not send its own workforce home.
The notion that parliament is the first appendage to be cut in a crisis doesn’t jell well with notions of democracy. But it seems especially foolhardy given we were (and remain) a small jurisdiction, forced to make emergency laws that require wide-ranging community buy-in.
Abandoning our primary law making institution when laws need to be made and updated so rapidly is bound to create problems. Yet this view of the parliament has persisted, with every call to reestablish democratic oversight of the public health emergency rebuffed or ignored by government. Only last week the Government blocked a proposal from the Legislative Council to establish a COVID19 Parliamentary Committee, leaving us as the only Australian jurisdiction without dedicated parliamentary oversight of pandemic lockdown laws. Tasmania’s approach is both unique and alarming, and appears to have been permitted by a series of myths and misconceptions about the role of parliament and its committees, especially in times of adversity.
Perhaps the most common myth is that parliamentary scrutiny would undermine efficient and effective responses to the emergency. This is simply untrue and reflects a misunderstanding of how our system — which has evolved over centuries and many crises — works. If the Government has been authorised to exercise emergency powers by the parliament, then it is free to exercise them in response to a threat, without asking for permission in advance. However, the key word is authorise. Because we are a democracy, parliament is the ultimate legal authority, and has the right and duty to make sure emergency powers were validly exercised, and direct how those powers might be improved in present and future crises.
Another misconception is that such a parliamentary scrutiny process has been happening in the pandemic. Indeed, one of the Government’s justifications for blocking a COVID-19 committee was the argument that a standing committee (the Subordinate Legislation Committee) is already scrutinising the COVID-19 response. This is a half-truth and a misdirection. The Subordinate Legislation Committee has been reviewing some technical rules and notices, but not the ones that ones that actually affect the lives of Tasmanians. Most importantly, it has not reviewed any of the public health lockdown directions that required Tasmanians to stay at home, not gather in public, or shut their businesses. These directions, issued by public officers under the threat of massive criminal penalties, have not been subject to any form of parliamentary review or oversight at all.
This is not to deny that public health directions are essential, and it is not to deny their importance in arresting the pandemic. However, that justifies more community representation and scrutiny, not less. That is especially the case given how much was at stake if they didn’t work, but equally recognising that those lockdown laws involve the most wideranging restrictions on civil rights since wartime.
The problems with making laws on the fly in a small jurisdiction like Tasmania has been evident throughout the crisis. Those strict rules at Easter? Arguably illegitimate because they extended for longer than permitted by the parent Act. Those reassurances you could go fishing? There was never an actual legal exception to the stay-at-home direction for this – unless you categorise fishing as exercise, which is a bit of a stretch, some might say, on a tinny. Even the 30km from home exercise rule had an odd technical drafting fault that meant it applied only to gatherings rather than individuals undertaking exercise. Technical mistakes (assuming they were mistakes) such as these and many others are completely understandable in the highly stressful context of a crisis. However, that is a reason to include the parliament in the process, not exclude it. The best way to detect mistakes in
rushed laws is to give affected individuals and communities a say in their review and improvement. Regular press conferences are a welcome addition to such a system, but not a replacement for it. The media is an important part of our democracy, but journalists are not an appropriate standin for elected community representatives. So much of the debate about scrutiny has been undermined by the view that if you critique the process you critique the frontline responders.
That misses the point. We can celebrate our heroes but still ask why the battle was fought in the way it was or why we abandoned certain ideals to achieve the victory. If a more democratic process would have produced the same outcomes then we must critically question why we chose that path. Yes, the public health response to the crisis has helped save us, but the fact that we achieved that by throwing our parliament overboard suggests we need to review our commitment to the most fundamental aspects of our democratic constitutional system.