Don’t let democracy die

It may sound too obvious to need stating, but in this time of crisis some of Australia’s leaders are ignoring it: without Parliament, parliamentary democracy cannot function.

It is Parliament that scrutinises and evaluates the actions of the executive government, holding the Government to account and protecting the liberties of citizens.

That is why the Senate’s Scrutiny of Delegated Legislation committee, which reviews all laws made by regulation – i.e. by action of the executive government – has resolved to continue its work during this time when sittings of Parliament may be suspended for an extended period of time.

Throughout the history of the Commonwealth – until now – Parliament continued to sit, no matter what crisis confronted the nation, whether war, natural disaster or social and economic calamity.

During World War II, not only did Parliament sit but the contest of parliamentary democracy remained vigorous.

The prime lost the confidence of the House of Representatives, resulting in a change of government that was later confirmed in a general election. All this happened without any weakening of the war effort.

Labor, under John Curtin, declined when in opposition to take part in a national unity government and instead participated in an advisory War Council. When Curtin was prime minister, his political opponents did the same.

Even during the Spanish flu pandemic of 1919-20, Parliament did not cease to function. Indeed, at the peak of the pandemic, in 1920, there were more sitting days in both chambers than there were during each of the last three years of World War I.

But now the Morrison Government has cancelled the scheduled May and June sittings of Parliament.

There will be a one-day sitting on 8 April to pass the wage-subsidy legislation, because the Government has no alternative. Only Parliament can enact the necessary measures.

But all the signs are that this will be another truncated, almost perfunctory sitting like that which legislated the previous stimulus measures. Regular sittings are not scheduled to resume till August.

And by then, who knows how the rapidly moving crisis confronting the nation will have unfolded?

Will the Government ask the Governor-General to extend the state of emergency declared under Biosecurity Act, which allows it to make regulations that cannot be overturned by Parliament even when it is sitting?

The covid-19 pandemic poses challenges that the Commonwealth has never had to face before, but they do not remove the need for parliamentary scrutiny.  On the contrary, they are a stark reminder of why that scrutiny is needed.

While actions may be perfectly legitimate today, the question remains: when will they no longer be legitimate?

In the early stages of the pandemic, Labor offered bipartisan support for the Government’s economic stimulus measures to get them under way, but that support never extended to the abandoning of parliamentary democracy.

We voted against the Government’s decision to suspend the May and June sittings. In the eyes of some, that was a lamentable display of partisanship. They wanted Labor to fold its tents and depart the scene.

The Government’s performance since then is sufficient refutation of that argument, and not only because of the stumbling, poorly executed and often confusing implementation of its program.

We have seen a minister, Stuart Robert, pluck excuses out of the air rather than accept responsibility for the failure of the Government’s social security service portal.

When the MyGov website crashed, the minister insisted it was the result of a cyber attack. Only later did he concede that the website couldn’t cope with a sudden surge in demand.

We have also seen, with the attack on industry super funds and encouragement to siphon cash from low super balances, an insertion of long-held ideological agendas into the stimulus measures.

In times such as these, it is the poorest and most vulnerable members of the community who are most reliant on having parliamentary representatives to defend their civil and industrial rights.

What else might be on the agenda if the crisis extends longer than the six-month period that is most often predicted? Wage cuts?

Then there is the question of how we rebuild after the pandemic is over – a question we cannot postpone answering until then

The inevitable restructuring of the economy must not be a job for what would effectively be a one-party state if Parliament is not sitting.

The response to the crisis has led to an unprecedented curtailment of civil liberties, including restrictions on movement and gatherings, enforced detention, and the electronic tracking of individuals.

In the present circumstances these measures are justified. But for how long should they be imposed, who will decide if and when they should lifted, and in what circumstances? Does the Government intend to leave it all to Peter Dutton?

The actions of ministers should be debated and judged according to democratic process, but it is extremely difficult to do so when Parliament is not sitting and regulation becomes the means for implementing Government policy.

The regulations imposed under s.477 of the Biosecurity Act, for example, are what academic lawyers call “Henry VIII” measures, i.e. they prevail over other existing laws and impose criminal sanctions on those who do not comply.

They are not subject to review by the Senate’s Scrutiny of Delegated Legislation Committee, and even if Parliament were sitting they could not be disallowed.

That is how authoritarian governments rule.

Of course, Australia is not yet on the path to government solely by executive decree, as has happened in Hungary under Viktor Orban. But we must ensure that we do not head down that path, and the way to do so is to allow Parliament to continue holding the executive government to account.

Even before the spread of covid-19, there was evidence of declining public trust in our institutions of governance.

If democracy is allowed to wither through an extended suspension of Parliament, reactionary, far-right nationalists will more easily manipulate the fears and anxieties that are rife in times of crisis

The worst response to such manipulation would be for Parliament to remain suspended.

There are no technical obstacles to holding sittings of Parliament in our present circumstances, extraordinary though they are.

The Constitution states that Parliament must meet in “the seat of government”, i.e. in Canberra. But, as Professor Anne Twomey of the University of NSW has argued, this requirement could be satisfied with only minimal personnel – the presiding officers and perhaps a minister – physically in the House and Senate chambers. Other members and senators could participate online.

We must all practise social distancing, but that does not mean we should allow it to become an excuse for the abrogation of democracy.

Parliament must resume its full sitting schedule, and fulfil its obligations to the Australian people.

Kim Carr is a Labor Senator for Victoria and Deputy Chair of the Senate’s Scrutiny of Delegated Legislation Committee.

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