Tuesday, 14th April 2020

During a pandemic, when lives are at risk, we want the Government to protect us, no matter what. This raises important public policy questions. Should we still strictly apply the law, or does an emergency justify a Government acting outside the law? Should Parliaments continue to scrutinise government actions, or just let Ministers get on with dealing with the crisis? Can a “national cabinet” take over and make laws outside the constitutionally prescribed law-making institutions?

At CEFA, we thought this was a good time to take a look at how governments and Parliaments have responded to the COVID-19 pandemic in Australia, and whether they are continuing to respect and apply the constitutional principle of the “rule of law”.

What is the rule of law?

The rule of law is a fundamental constitutional principle. It makes governments, corporations and individuals all subject to the application of the law, and protects against the exercise of power without a lawful basis.

In fact, covering clause 5 of the Commonwealth of Australia Constitution Act provides that:

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth…

It is a central idea in most modern democracies and dates back as least as far as the philosopher Aristotle, who famously expressed a preference for the “rule of law” rather than the “rule of men”. It has been said that the law restrains and civilises power and is a safeguard, not a menace. Everyone is subject to and constrained by the law. Put simply, no-one is above or beyond the law.

Why is the rule of law important?

The principle of the rule of law gives us a predictable and ordered society. Every person, regardless of who they are, is subject to the law and has access to the courts. The rule of law promotes justice and individual freedom. It provides a shield against the arbitrary exercise of power. It ensures that those who judge whether something is legal or illegal are independent of the people and institutions whose actions are being challenged. It is central to our democracy and fundamental to our Constitution.

During this pandemic, the rule of law continues to apply in Australia

Governments around Australia are having to make tough decisions to protect the people, but the rule of law means that these governments cannot act outside their powers. Nobody is above the law and this includes ministers and parliamentarians. If a minister travels to their holiday house in breach of restrictions on unnecessary travel, then they can expect to be fined just as anyone else would be.

We had a lot of comments on social media on our article about whether state borders being closed was allowed under the Constitution. Many of the commenters believed during this pandemic the Constitution should be set aside and any action needed should be taken by our governments. One such comment was:

I can't believe people even ask such foolish questions we are in an emergency situation there is a lot more at stake here than worrying about the constitution and the validity of closing the borders. This is the last thing people need to be worrying about right now!

But not everyone agreed:

We aren’t saying that the government can’t respond to the crisis. We are saying that their responses must be lawful.

The principle of legality

Closely related to the rule of law is the concept of the principle of legality. Basically, this means that when courts come to interpret a law passed by Parliament, they will interpret it in such a way as to be consistent with fundamental rights unless Parliament makes it very clear that it intends to affect those rights. This is to ensure that Members of Parliament think carefully about any impacts that the laws they are enacting will have on rights and take responsibility for them, rather than letting them slip by without debate or consideration of the consequences.

What are those fundamental rights? They include the right to have done to your body only things you consent to, the right not to have your freedom of movement restrained other than with lawful authority, the right to peaceful enjoyment of your property, the right not to be forced to incriminate yourself, the right of access to the courts, and freedom of speech and association. Parliaments can enact laws that affect these rights, but must take responsibility for doing so by making it clear in the laws they enact.

Is the “national cabinet” making laws outside the constitutional system?

Some people have raised concerns that a new body, the “national cabinet”, has taken over making laws that affect our lives, even though it has no basis in the Constitution. They are worried that laws are being made by way of announcements and tweets, rather than by the democratic processes prescribed by the Constitution. They see it as breaching the principle of the rule of law.

This is not the case. The “national cabinet” is simply a forum in which the leaders of the Commonwealth and State Governments can discuss policy proposals, co-ordinate their actions and share the evidence that will help them make decisions. It is the kind of co-operation in a federal system that we usually complain doesn’t happen enough.

Leaders can agree at a meeting of the national cabinet to give effect to certain policies, but each leader can only achieve this outcome by acting under the legal processes that apply in their own jurisdiction. They still have to enact laws through their own Parliament, or make delegated legislation under existing laws. The rule of law still applies. The announcements and tweets are not laws themselves – just indicators of what laws and rules are proposed to be made through the existing constitutional processes.

While the “national cabinet” is not mentioned in the Constitution, neither is the office of the Prime Minister or Premier, the federal cabinet or the Council of Australian Governments (“COAG”). But such offices and bodies, or their equivalents, have existed since colonial times in Australia. This does not make them “unconstitutional”.

Calling an inter-governmental body comprised of federal and State leaders a “national cabinet” rather than COAG, is largely a symbolic change. It may operate differently, from an administrative point of view, with less bureaucracy and greater flexibility, but it still does not have any law-making powers.

How are laws being made and scrutinised when the Commonwealth Parliament isn’t sitting?

Ordinarily, laws that affect the rights of people are made by Parliaments enacting statutes. But during a pandemic or other emergency, it may be necessary to make laws when Parliament is not sitting. This is particularly the case where it is dangerous or imprudent for parliamentarians and their staff to travel between their electorate and the Parliament and for sittings to occur in the one chamber. Australian Parliaments have altered their sitting timetables to respond to the COVID-19 pandemic, with most not proposing to sit again until August or September.

At both the Commonwealth and State levels, there is existing legislation which gives Governments wide power to make rules, known as “delegated legislation”, to deal with a public health crisis. The Parliament delegates that power to the Government, but continues to scrutinise it and can exercise a degree of control over it.

At the Commonwealth level, the Biosecurity Act 2015 (Cth) enables the Governor-General to declare that a “human biosecurity emergency exists”. This was done on 18 March 2020 and is in force for three months (but can be extended for periods of up to 3 months if the threat continues to be severe and immediate). This allows the Minister for Health to “determine emergency requirements during the human biosecurity emergency period”.

Ordinarily such determinations, or other forms of delegated legislation, are “disallowable instruments”. This means that they have to be presented to both Houses of Parliament shortly after being made, and either House can, within a certain number of sitting days, pass a vote to disallow them. If an instrument is disallowed by either House, it then ceases to apply as a law (but still validly applied up until the date it was disallowed).

But where a “human biosecurity emergency” exists, Parliament decided that instead of making the determinations disallowable, it would put a time limit on their application. So they only operate during the period that the “human biosecurity emergency” exists. They therefore cannot be disallowed during that period, but they could be repealed by the Parliament or made the subject of judicial review in a court.

Other delegated legislation in response to the COVID-19 emergency, such as that made under health, defence and customs legislation, may still be disallowed by either House when Parliament next meets.

In the meantime, Parliament can continue to scrutinise delegated legislation and raise concerns with the relevant Minister about its application, seeking alterations where necessary. This is done through its parliamentary committees, which can continue to meet by electronic means even though Parliament is not sitting.

One of the key committees is the Senate Standing Committee for the Scrutiny of Delegated Legislation. It has announced that it is continuing to meet, by electronic means, and is actively scrutinising the delegated legislation that is emerging while Parliament is not sitting. While the instruments that are not disallowable do not fall within its ordinary terms of reference, it is scrutinising the others, and has set up a special webpage to list all the COVID-19 related delegated legislation so that people can easily find it and scrutinise it themselves as well.

On 8 April, the Senate also established a Select Committee on COVID-19 to inquire into the Australian Government’s response to the COVID-19 pandemic. It will be able to scrutinise the non-disallowable delegated legislation made under the Biosecurity Act along with other Government responses to COVID-19.

What are the States doing?

Many of the laws that affect the movement of people are being made at the State level. State Governments have wide powers under public health legislation to make delegated legislation, when Parliament is not sitting, to deal with health emergencies. Where they are not disallowable, such instruments are usually subject to time limits on their operation.

Parliamentary committees in the States may also play an important role in providing continuing scrutiny of government action. This can be done by existing committees undertaking inquiries within their areas of expertise, such as law, health, public accounts and the scrutiny of delegated legislation, or by the establishment of a specific committee. For example, in New South Wales the Legislative Council’s Public Accountability Committee is currently holding an inquiry into the “NSW Government’s management of the COVID-19 pandemic”.

The rule of law during a pandemic

In order to maintain public confidence in the actions taken by governments during the COVID-19 pandemic, it is important for Parliaments to fulfil, and be seen to be fulfilling, their scrutiny and accountability roles, either by sitting (possibly as a “virtual Parliament”) or by their parliamentary committees closely examining the many new legislative instruments that are being created.

People are more likely to obey burdensome laws if they accept that the law is fair, has been properly scrutinised and found to be necessary in the circumstances, and applies to all. We need people to obey the laws in order to stop the spread of COVID-19, so taking action to satisfy them that the laws are fair, necessary and have been properly and democratically scrutinised is a key element in dealing with the pandemic.

Rather than looking at the rule of law as a burden on the ability of the Government to deal with the pandemic, we should be seeing it as a way of maintaining public confidence in the Government and compliance with the laws, which is the only way that the pandemic will be contained.

Image Source: TPR Jonathan Goedhart © Commonwealth of Australia http://www.defence.gov.au/Copyright.asp

Inspector Peter Aitken from the Queensland Police Service briefs the Australian Army contingent from the 9th Battalion, Royal Queensland Regiment, who are supporting the mandatory COVID-19 quarantine arrangements for international travellers at Brisbane Airport, Queensland.