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Was it Necessary to Suspend Parliament?

Written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.

On 23 March 2020 it was announced that federal Parliament would not sit again until 11 August 2020 due to the spread of the Coronavirus. The Parliamentary sittings of May and June were cancelled and the budget was postponed until October. The move was opposed by Labor and the Greens, who expressed concerns that legislation hastily passed to deliver economic stimuli and welfare was likely to be flawed and to require amendments. Civil liberties groups also criticised the decision to suspend parliament, saying it would mean there would be very little parliamentary scrutiny of government decisions during a crucial period when extreme emergency powers are being exercised.

How did the suspension come about?

The government suspended parliament after announcing that the budget would be postponed until October. House Leader Christian Porter stated:

“some risk attaches to the operation of parliament, particularly during what is anticipated to be the peak point in the transmission of the coronavirus.”

The Prime Minister has appointed a panel of business people to manage the country’s economic response to the pandemic, chaired by Fortescue Metals chief Nev Power. The National COVID-19 Coordination Commission (NCCC) will co-ordinate advice to the government on mitigating the social and economic effects of the pandemic. Supply bills were passed prior to the adjournment of parliament to ensure that government expenditure would be funded until August.

Criticisms of the decision to suspend parliament

Concerns have been raised that the NCCC will not operate subject to the codes and traditions of parliament and will be accountable only to the Prime Minister. Morrison’s appointment of a mining executive to chair the commission has been described as ‘autocratic’ and as representing a corporate, rather than an administrative, mentality in the Prime Minister.

It has been pointed out that the Australian parliament kept sitting throughout both world wars and throughout the Spanish Flu pandemic of 1918 – 1920. The loss of parliament for five months has been called ‘devastating’ for the accountability of the federal government to the people of Australia.

Commentators have predicted that parliament will inevitably be recalled before August due to the need to deal with issues arising from the pandemic and because the legislation already passed is unlikely to be sufficient.

Civil liberties concerns

Civil libertarians have warned the decision to suspend parliament for so long is dangerous for democracy, with Shadow Attorney-General Mark Dreyfus calling on parliament to continue to sit so as to scrutinise the government’s use of its emergency powers under the Biosecurity Act.

Andrew Edgar, an Associate Professor in the University of Sydney Law School, has outlined how lawmaking is different in times of emergency as the activation of emergency powers gives rise to the ability of public health officers to exercise broad regulation-making powers.

The use of these powers raises a number of concerns, including the following:

  • Regulations and orders made under the emergency powers tend to be unstable and regulations are often made and then varied or repealed a few days later.
  • Regulations made under the emergency powers can be hard to find as they are not published on government legislation websites. This can be problematic when breaches of the regulations carry heavy penalties, including imprisonment.

The suspension of parliament during a period when lawmaking is occurring through broad regulation-making powers could lead to very low levels of accountability and scrutiny. This is particularly concerning when orders are being made that seriously infringe on the everyday freedoms of individuals.

Do we need a virtual parliament?

Since the decision to suspend parliament, its committees have continued to operate. This means that the Joint Committee of Public Accounts and Audit can still scrutinise government expenditure, for instance. Parliamentary committees can communicate remotely and are still regarded as parliamentary proceedings and covered by parliamentary privilege. It has therefore been suggested that parliament itself could sit remotely with the use of technology to communicate. This would allow new laws to be debated and passed during times of emergency and without the need for face-to-face contact between MPs.

The UK Parliament sat via zoom for the first time on Wednesday.

Most of the Australian state and territory parliaments have altered their sitting patterns in response to COVID-19 after the decision by the federal government to suspend parliament. At this stage, no virtual parliament is being considered for either federal or state and territory parliaments in Australia.

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