Call comes as civil liberties advocate warns extended adjournment is ‘unacceptable and dangerous for democracy’

This article is more than 5 months old

This article is more than 5 months old

The shadow attorney general, Mark Dreyfus, has called for parliament to continue to sit and scrutinise government emergency powers to deal with coronavirus, as concerns about unchecked executive power in Australia grow.

The call on Wednesday comes as the bipartisan delegated legislation committee resolved to establish an inquiry into non-disallowable instruments including new Covid-19 public health orders, citing research by the legal expert Andrew Edgar that they are putting federal government actions beyond the reach of parliament.

The New South Wales Council for Civil Liberties president, Nicholas Cowdery, has urged the commonwealth and NSW parliaments to resume before August and September, warning the current extended adjournments are “unacceptable and dangerous for democracy”.

On Wednesday Scott Morrison and Anthony Albanese agreed to a sitting day on 8 April to pass the third government Covid-19 support package.

Earlier, Dreyfus called for an unabbreviated – but possibly remote – session of parliament to consider other business. Labor has also written to the Australian National Audit Office asking it to scrutinise the more than $200bn of government spending and more than $100bn in lending in the first two tranches of economic support.

On 18 March the governor general declared Covid-19 to be a “human biosecurity emergency”, which enlivens very broad powers in the Biosecurity Act for the health minister to “determine any requirement that he or she is satisfied is necessary” to prevent entry or spread of a disease.

Scott Morrison needs to target his spending at significant problems or he will only be remembered for debt | Richard Denniss Read more

They are subject to safeguards that the requirement must be “likely to be effective”, is “appropriate and adapted” to its purpose and is “no more restrictive or intrusive than is required in the circumstances”.

The Labor senator Kim Carr, the deputy chair of the delegated legislation committee, has received advice that the powers could be used to order telcos to turn over metadata, including location data, to track whether citizens are abiding by physical distancing rules and conduct contact tracing.

On 23 March the Australian Health Protection Principal Committee endorsed the use of mobile phone data to enforce quarantine.

Edgar noted on the Australian Public Law blog that as at 27 March the minister had made four non-disallowable determinations including to ban overseas travel by Australians and to use the Swissotel in Sydney for quarantine by declaring it to be a “human health response zone”.

Edgar noted their non-disallowable nature “conflicts with regulation-making norms” – that parliament can reverse executive actions that go beyond legislative authority – and the orders come with criminal penalties including imprisonment.

“The check on the power that is relevant is that the determinations cease to apply at the end of the human biosecurity emergency period, which is three months.”

Carr told Guardian Australia he is “concerned that executive-made laws do give the appearance of decision-making by decree”.

Carr accepted they were “entirely justified for the defence of the community today” but said they need to be explained by the government, including their duration, which he said cannot be “indefinite”.

“This is not a question of disagreeing with the policy aim, it’s about implementation, the arbitrary use of power by decree – there should be proper scrutiny of that.

“I don’t want Australia to become like Hungary,” he said, in reference to new laws using the coronavirus to create indefinite emergency powers. Carr also questioned the use of the military to conduct quarantine checks, which are then enforced by state law enforcement.

The delegated legislation committee, which is chaired by the Liberal senator Concetta Fierravanti-Wells, resolved to write to ministers warning them that regulations must “be time limited where it trespasses on personal rights or liberties, or amends, or modifies the operation of, primary legislation” and calling on the government to explain what safeguards are in place.

“Parliamentary scrutiny of executive-made laws is essential in critical times like these,” Fierravanti-Wells said.

“By continuing to scrutinise legislative instruments which would ordinarily be subject to parliamentary oversight, the committee will play its part in ensuring that the government remains accountable to the parliament during this time.”

On Wednesday, Dreyfus welcomed the government’s decision to recall parliament to pass its $130bn third support package, which includes a new jobkeeper wage subsidy payment.

On Twitter, the shadow attorney general said Scott Morrison “must not shut [parliament] down again as soon as he gets what he needs”.

Mark Dreyfus (@markdreyfusQCMP) When the Parliament re-convenes, Mr Morrison must not shut it down again as soon as he gets what he needs – Parliament should continue to sit in some way, shape or form during the current crisis (e.g. with the assistance of technology or with fewer MPs attending in person) 2/5

“Over the coming months, the Morrison government will make decisions that will have extraordinary consequences for millions of Australians and for the social and economic fabric of our country for at least a generation,” Dreyfus said.

“Parliament has given the government emergency powers to respond to this crisis.

“Every member of the parliament has a role in ensuring that those powers will be exercised in the best interests of their constituents and of our nation.”

Mark Dreyfus (@markdreyfusQCMP) Parliament has given the Government emergency powers to respond to this crisis. Every member of the Parliament has a role in ensuring that those powers will be exercised in the best interests of their constituents and of our nation. 5/5

The shadow finance minister, Katy Gallagher, has written to the auditor general noting that the first two tranches of fiscal stimulus were dealt with in a single day’s sitting and Labor expects the third tranche will be “dealt with in a similarly expedited way”.

Gallagher noted parliament had increased the contingency fund available to the finance minister, Mathias Cormann, to $40bn and allowed the social security minister, Anne Ruston, to vary thresholds for welfare payments.

Gallagher suggested the “unprecedented” level of spending and “novel arrangements and extra powers” given to ministers warranted an ANAO audit.

Several Australian states and territories have issued public health orders and directions under their own state laws to implement a recommendation of the national cabinet on Sunday to ban gatherings of two or more people.

New South Wales, Queensland and Victoria have gone further than the “strong guidance” to stay home by also banning non-essential outings.

Breaching the orders is punishable in NSW by fines for individuals of up to $11,000 or six months in prison, or both, and in Victoria by fines of up to $19,800 through courts and $1,652 on the spot.

On Wednesday, Cowdery wrote to the federal and NSW governments and opposition, warning that the current adjournments of parliament were “unacceptable and dangerous for democracy”.

He cited the constitutional law expert Anne Twomey, from the University of Sydney, who has warned that “there will be very little parliamentary scrutiny of the government for nearly five months, a critical period during which extreme powers may be exercised”.

“Even the darkest days of the world wars did not force parliament to close for extended periods,” Cowdery said.

“NSWCCL believes Australia needs more democracy and accountability in these difficult months, not less.”