The power of emergency executive government has legally moved beyond elected parliament, with democracy and the law the poorer for it, writes Morry Bailes.
The way out of the COVID tunnel lies in the confidence of the public to be vaccinated, but in the meantime the law has a central role to play.
However, this pandemic episode in Australian history has highlighted some disturbing paucities in our system of democracy.
The law has operated on so many levels during this crisis. First we started with the Australian Constitution. Could States lawfully close borders? The answer, after the point went to the very top of our judicial system, the High Court of Australia, was yes. Indeed, closing borders had been done before for a variety of reasons, and then, as now, it was unquestionably lawful. Law was central to that measure. Without the law on their sides, no State could have lawfully closed a border.
Next came lockdowns, and penalties. Could we really be lawfully incarcerated in our own homes? Could our liberty be arbitrarily taken from us because we had walked into the wrong supermarket or service station to buy a product? Could we be fined and actually imprisoned for daring to disobey the edicts of the executive? The answer is most assuredly, yes. How then in law is that done?
The executive is making decisions beyond the reach of parliament.
The answer is an explanation of the separation of powers in our country, and how our different arms of government work, which leaves one with an abiding dilemma. There is the Parliament which enacts our laws, there is the judiciary which is largely consigned these days to interpreting them, and we have the executive.
As the Americans perhaps have always known with the election of a President who holds all executive power in that country, executive power is where it’s at. You can do most anything, even if it’s wrong. Not in law, but in fact. Such as closing a border, in the case of the Northern Territory, when it had but a singular case of COVID and posed, as it turns out, no threat to our state at all. It is an example close to my heart, given it cost my family and I our annual holiday and thousands of dollars.
And the dilemma? Based on medical advice our law has pretty much given carte blanche control to unelected, unaccountable and untouchable members of the executive arm of government.
The dilemma more precisely is how are we to run a democracy when two branches of government have been all but sidelined? ‘Never trust government’ we now know doesn’t mean don’t trust parliamentarians, but rather that we cannot trust the apparatus that we, the people, have permitted our parliamentarians to construct. Perhaps it is one and the same.
Meantime who exactly is running this show? Is anyone accountable? Not really. If you give to someone else the power to make your decisions for you and they get it wrong, by in large it’s ‘tough’.
In the 2005 movie V for Vendetta, a totalitarian government takes control of Britain after a viral epidemic, wielding unchallenged executive power to enslave a people and a nation. This is more fantasy than fact in Australia, thankfully. However, when a policeman and a doctor run our lives, making the Parliament and courts all but redundant, you have to wonder the direction in which we are heading. Parliamentarians have been displaced to the smiling, waving and head-nodding second row. And it is lawful.
The executive is using the law our parliament has given them to take from us our liberty; no questions asked, no answers given. The executive is making decisions beyond the reach of parliament.
So how far can this go? Can executive power also be used to compel people to be vaccinated? We all know the only way out is a vaccine. Can executive government force that measure?
The answer is no. It is in law a step too far. Given the provisions of our ironically named Fair Work Act, employers are unlikely, in most instances, to be able to compel employees to be vaccinated, even though to not do so is to imperil fellow workers and leave the rest of us in a nether world of arbitrary household detention and with limited movement.
Likewise, the government wielding executive power cannot compel the population at large to be vaccinated. You see, there are limits to executive power. We can be imprisoned in our homes, we can be restrained, and we can be detained, but we cannot be made to do the one thing that would mean all of that is unnecessary: have a vaccine.
Where does that leave Australia?
Perhaps we have long known our democracy is changing. This proves it. When power has been donated by the parliament to a handful of unelected decision makers who wield executive power largely as well as practically difficult to challenge in the courts, it is seems less like democracy and more like benevolent dictatorship.
The answer to these democratic threats is for parliaments to take back some of the role it has forsaken. It may be a utilitarian measure to legislate away its responsibility and it’s decision making; to relegate all that boring time consuming stuff to unelected executives answerable only to a Minister who only knows half the story anyway, as we have so regularly experienced. But that is not always as it should be.
The executive may even be right in every one of its decisions, but it is still questionable to allow it to make all of these decisions in such an unaccountable fashion. Why? Because it has the hallmarks of a process that is undemocratic. To instil in the few the destiny of all of us, is the very definition of what may constitute an undermining of democratic principle.
In the ultimate test of the law, the law fails us, but because it has been set up for failure. When we make unelected people’s decisions lawful, when we hand over democracy to the machinations of executive decree, we have engineered a system of governance that struggles for the chance to turn to the law for salvation. The real failing of our parliaments is not about their social or economic decisions, it is the decision to abdicate responsibility for what it was created to do – govern us.
For a start, if you’ve been fully vaccinated should we not allow travel? Why should the legislature not enable that, otherwise what is the incentive to do the right thing? At present, absolutely nothing save the obvious protection against a disease we don’t yet fully understand, nor in what iteration it will attack us next. Is it responsible government to turn over all the power to the States’ employees and then tremble unvaccinated in the lock-up we used to call a home?
As to the pandemic, we don’t need government, parliamentary or executive, to give us that answer. Neither do we need the law. All we need is a modicum of common sense and have the vaccine. Please, so we can get this undemocratic, autocratic horror show behind us.
And the parliament? It would be comforting to have its hands more on the wheel. The courts have successfully regulated the excesses of the parliament when it crosses the line; it’s now parliament’s turn to concern itself with the excesses of executive power. The doctrine of the separation of powers only ever works if the powers are equally balanced. The rule of law is only as good as it’s guardians, and on this occasion parliaments across Australia have been found to be wanting.
Too much has been gifted to the executive, and it is critical to recognise that fact, and to ensure that such emergency measures must be of a very temporary nature only.
We cannot permit excessive executive power to become the norm in our state and in our country, or we risk upsetting the fine balance that underpins the success of our democracy.
Morry Bailes is Senior Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia
Originally published InDaily 22/07/2021