Democratic Governance in an Emergency: Recalibrating for Pandemic

As a Western liberal democracy, Australia enjoys a high standard of governance. Our law making and enforcement systems are designed with checks and balances whose purpose is to distribute power and thereby hold decision-makers to account. Part of the function of government, however, is to be responsive to the needs of the population. In the case of emergency, this can entail a suspension of regular processes in favour of manoeuvrability.

In Australia we frequently see governments resort to emergency powers in natural disasters such as flood, cyclone, and fire. At the moment we are witnessing emergency powers arising from the COVID-19 Pandemic. But unlike the more short-lived or localised emergency situation, the Pandemic is of a longer-term, unknown duration. In addition to the extended adjournment of the Federal parliament, there have been other disruptions to regular norms of governance that deserve scrutiny.

In the Australian federation, it is largely the states with the responsibility for day-to-day matters including management of domestic emergencies and public health. In Queensland for example, there are two principal statutes giving emergency powers. Under s69 of the Disaster Management Act 2003, the Premier or Minister may declare a disaster. The declaration will last for 14 days, evidencing the general expectation that a disaster will be short term only. Under the Act, members of the emergency services are empowered to exercise general powers (s77) aimed at being able to manage infrastructure, people and property. The Premier and Minister for Fire and Emergency Services declared a disaster situation over the whole of Queensland, on 22 March 2020. The declaration has since been extended numerous times by regulation.

The Public Health Act 2005 also provides for emergencies, with associated powers. The Queensland Minister for Health declared a public health emergency in Queensland on 29 January 2020. Declarations are expected to last for seven days, unless extended. As with the Disaster Management Act, an emergency declaration under the Public Health Act involves a host of emergency powers in the emergency services and health officers.

Since the initial declaration of emergency, the Queensland government has passed amendments to the Public Health Act and various regulations to give the Chief Health Officer (CHO) additional powers including, under s362B, the power to give directions. In addition, the emergency has been extended by regulation, most recently for 90 days (expiring on 19 May 2020).

What has been extraordinary about these directions is not that the CHO is empowered to take charge of public health—this is an expected feature of the role. What is most challenging to comprehend about the directions is their scope. This is especially so in terms of how we ordinarily understand the checks and balances of law-making. There are three factors in particular that stand out.

First is the extent of the measures introduced. The borders have been closed, people have faced criminal prosecution for leaving their homes without valid reason, and businesses have been shut down. These measures constitute radical incursions into existing rights and assumptions about the way we live.

Secondly is the extended time frame within which these fairly extreme laws are operating, without the opportunity for parliamentary scrutiny. While generally emergency measures might subsist within a seven, or 14, day window, these laws have been made operational for the duration of a 90 day emergency. It is important to note that Parliament has itself determined the extended time frame. This illustrates how governance processes can mesh together to ensure a pragmatic response to an emergency, whilst retaining overarching Parliamentary authority. That is to say: the directions issued by the CHO are not by any stretch a random power grab—they operate within boundaries that are determined by the Parliament. The question remains, however, whether this delegation of power to implement such extreme measures is appropriate in the longer term.

The third notable feature of the CHO directions is the mode of their declaration. Generally legislation, including subordinate legislation, is published on the official government legislation website. Other notices and declarations are generally published in the Queensland Government Gazette. While neither of these sources may be appealing reading for the general public, they are authoritative sources of law that are properly promulgated.

By contrast, directions concerning the COVID declared emergency are issued by the CHO on the Queensland Health website. They appear there pursuant to amendments to the Public Health Act passed in March. In the beginning, they featured as ‘tiles’ on the web page. As more directions issued, and some were superseded, a more advanced system evolved. Now they are listed alphabetically. All directions appear as html (ie as a web page). Superseded directions do not appear on the face of the website—they are hidden. However, they can be accessed by searching online for ‘superseded directions’.

Publishing the directions on the Department of Health website is a good means of making them accessible to the public. However, there are concerns about this process in terms of keeping track of authoritative law. The directions are not available as PDF documents, as is normally the case for legislation and regulations. They are simply part of a website. The implication of this is that when the departmental website changes, unless steps are taken to preserve the information, they will be lost to the public. Because they do not appear in the Government Gazette, or on the Queensland legislation site, the directions break with the regular protocols concerning preservation of authoritative sources of law.

Raising these factors is not a commentary on the value or appropriateness of the measures themselves. Nor is it a challenge of the power of Parliament and of government to make law in an emergency. But we now know that the Pandemic is likely to last for some time—perhaps for a couple of years. Although we are seeing a gradual easing of restrictions now, it is possible that there will be intermittent spikes in infections, and perhaps the need for periodic reinstatement of restrictions. In other words, the duration of this emergency is likely to be far longer than ordinarily contemplated by the current framework of emergency powers. We need government to be able to exercise extraordinary powers, but we also need the means to hold law makers to account through appropriate processes into the longer term.

For this reason, it is worthwhile reconsidering the checks and balances embedded in our system of governance. We need the opportunity, at least, for a discussion on the role of Parliament, the role of the CHO, and the means of implementing measures that are extreme and punitive, over an extended period. Enhanced public engagement with the processes involved will result in better outcomes for governance and for our democracy.

By Associate Professor Kate Galloway