Pearls and Irritations

The COVID-19 crisis has rapidly hit every aspect of our lives. Governments are making life or death decisions during this emergency period that will reshape the face of our nation for decades to come.  Strong democratic systems that enable transparency, scrutiny and accountability are key to success on all these fronts.

Extraordinary measures require strong oversight

There is no doubt that extraordinary times require extraordinary measures. To combat COVID-19, Government politicians are asking that we trust them. But without accountability, trust can be difficult.

We have seen the Finance Minister given the power to spend $40 billion “as required for urgent matters”. This extremely broad ministerial discretion was passed in Parliament last month, without the oversight measures proposed by the Labor Opposition – to publish weekly expenditure figures and require bipartisan consent for spends over $1 billion.

The Australian Defence Force has been deployed to support state and territory police forces to issue COVID-19 penalties, many of which are broad, vague and enable highly subjective policing. Reports of inappropriate COVID-19 policing are already starting to emerge, with over sixty complaints already reported through the covidpolicing.org.au website run by the Police Accountability Project of which Grata Fund is a partner. A majority of people reported negative experiences, describing their interactions with police as “aggressive”, “interrogatory”, “intimidating”, “harassing”, “rude”, “very rude’, “unpleasant”, “nasty”, “forceful”, “not friendly”, and “frightening”.

The Fair Work Act was amended during the recent wage subsidies parliamentary sitting along with an implicit request for workers to trust that the Government will protect them from employers who abuse the system. Reports are already emerging of some employers inappropriately denying their workers the JobKeeper payment or making employment contingent upon workers paying them a $600 cut of the payment.

Mass surveillance capability will be introduced including a potentially mandatory app that will track the population’s movement and interactions with others who have been infected with COVID-19. What happens to this data and what security agencies do with this capability after COVID-19 is currently unclear.

Decisions about the management of the pandemic will have life or death implications for Australians, while also reshaping our entire economy and social security system and widening the powers of law enforcement and impacting its relationship with us for decades to come.

Meanwhile, on 23 March 2020 Parliament voted to adjourn until 11 August, a gap of almost four months, giving the Government an unprecedented break from formally and publicly answering to Parliament, aside from a short sitting this month to pass urgent social security reforms.

This is a decision of historic proportions, one not taken during the World Wars or by many other countries around the world who are facing the same challenges posed by COVID-19. Facing ongoing criticism from civil society, media and opposition parties the Government has agreed that Parliament will return for a trial week in May. At this stage it’s unclear whether this sitting will capture the full range of scrutiny functions of the Parliament.

State and Territory parliaments have also shuttered doors or are working at significantly reduced levels with some returning only to pass emergency COVID-19 related legislation.

The courts too have been forced into various stages of closure or modification as they migrate – with various levels of effectiveness – towards digital systems of operation for registries, hearings and decisions. Reports of applicants considering a broader range of courts than normal for filing cases and threats of applying to shift cases into jurisdictions with superior remote technology are beginning to emerge, as applicants seek to avoid long hearing backlogs. Criminal courts are grappling with the technicalities of conducting jury trials during a global pandemic, one of the few explicit rights in the Commonwealth Constitution for Federal offences. While the digital revolution being thrust on the judicial system is welcome, it may be some time until we fully realise the impacts of COVID-19 on the judicial administration of justice and accountability.

Global comparisons  

Some democracies at regional, national and local levels have adjusted well to COVID-19 and ensured any changes or restrictions to protect public health are necessary, proportionate and non-discriminatory.

New Zealand’s Parliament has adjourned while the country is at its most restrictive lockdown level.  But impressively, the Government worked quickly with opposition parties to set up an Epidemic Response Select Committee with broad ranging powers, chaired by the Leader of the Opposition and made up of majority opposition parties to provide vital scrutiny of Government for the duration of the adjournment. With new COVID-19 infection numbers down, New Zealand’s Parliament will return at the end of April, having only missed a total of 5 sitting days, in a demonstration of the importance of scrutiny to maintaining public trust throughout the management of the crisis.

The European Union Parliament is using technology to shift operations online and facilitate ‘remote participation’.  This participation means ‘being able to view and listen to proceedings, ask for the floor and intervene in meetings. It’s a significant effort, being led by Secretary General of the EU Klaus Welle, for one of the largest parliaments in the world representing 27 countries and comprising 705 Members of the European Parliament.

The UK Parliament is considering digital communication that can facilitate oral questions to Ministers and enable the live broadcast of statements to the House by video link. If this is successful, other proceedings including the consideration of legislation may also be moved online.

Adaptation is happening at regional levels too. The Welsh Assembly has shifted online and is running regular sessions of Parliament through video calls. Through this technology the Assembly has been able to continue regular business without the restrictions on agenda seen in other countries. Members have been able to question the First Minister about COVID-19 related measures, conduct regular business, like debating whether the voting age should be lowered to 16, and voting using representatives from parties to cast votes. The model has been so effective that the Assembly has been approached by other parliaments for advice on implementation.

Unfortunately, the protection of democracy has not been valued by all countries and their responses to democratic operations during COVID-19 have been anything but necessary, proportionate, time bound and for legitimate public health purposes. Leaders of many countries have used the pandemic as an opportunity to expand their powers and suspend scrutiny.  The openDemocracy media network reports that 2 billion people globally have their parliaments shut or limited by COVID-19.

Gambia shut down its Parliament after just one case of COVID-19 was confirmed for the entire country.

Hungarian Prime Minister Viktor Orban has been given the power to rule by decree indefinitely. He has already introduced prison sentences of between 1 and 5 years for disseminating “fake news” related to the pandemic in what is understood to be part of broader efforts to restrict free press in the country.

Israeli Prime Minister Benjamin Netanyahu cited COVID-19 when closing the courts from 1am on the day his corruption trial was scheduled to begin. At a minimum this will delay the trial for two months and given the current environment could foreseeably be extended much longer.

Unaccountable governments with weak democratic institutions are less equipped to deal with COVID-19 and implement effective public health measures. Globally we are starting at a very weak baseline. Freedom House has reported that 2019 was the 14th consecutive year of a decline in civil rights and democracy around the world. Last year the CIVICUS annual report of civil rights downgraded Australian’s democracy from ‘open’ to ‘narrowed’ in line with the United States, Ghana and Botswana.

Public trust in democracy will see us through

Public trust is essential for the effective management of COVID-19 and it is contingent on good government, confidence in leadership and integrity of processes. It is fair and proper that we expect our democratic accountability institutions continue to function – arguably at an even higher standard.

It is inevitable that mistakes in the COVID-19 response will be made, regardless of the best intentions. The crisis has moved fast and rapidly transformed our lives, the way we work, our economy, social security system and security agencies.

Earlier this month, a range of civil society organisations put pressure on the Liberal Government to create a parliamentary committee to provide oversight of the COVID-19 response. Grata Fund worked with seven other legal groups to push for a Select Senate Committee to be established. The Committee was successfully established during Parliament’s single sitting day on 8 April and is to be chaired by Labor Senator Katy Gallagher. It has been set up with broad powers to examine any aspect of the Government’s COVID-19 response, examine people and documents and run for 2 years.

The Select Senate Committee has a big job ahead for it. It provides an avenue for people who may otherwise not have a voice with the Government to have their experiences heard and can be used to inform and strengthen Australia’s public health response. State and Territories must set up similar committees with oversight of COVID-19 measures like the Federal Government’s and the NSW Government who have the Public Accountability Committee.

But committees alone cannot protect the public trust vital to the management of the COVID-19 pandemic. The six parliaments adjourned around Australia must return in a safe manner and draw from successful examples worldwide.

Adjustments will need to be made to ensure that the operations of these institutions do not adversely affect the public health response to COVID-19. Examples from the Welsh Assembly and New Zealand show that this is absolutely possible.

The courts too must be provided with the funding and support they need to transition to digital or modified operations and to function at increased capacity during the immediate post-crisis phase. Community legal service providers must also be provided with additional funding to deal with backlogs of COVID-19 related matters, including debts, family and custody issues, housing and policing matters.

Democratic renewal

We must use this time as an opportunity for democratic renewal, to push the bar higher on issues of transparency, accountability and scrutiny. These measures will make us ever stronger as we move into an uncertain future and the next apocalyptic challenges of climate change, the re-emergence of fascist leaders around the globe and increasing pressures of wealth inequality.

Isabelle Reinecke is the Founder and Executive Director and Belinda Lowe is Head of Strategic Communications at Grata Fund. Grata empowers Australians to create extraordinary change by removing the enormous financial barriers to court and by integrating litigation with strategic movement-driven campaigns on the issues of human rights, democracy and climate change.

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