The pandemic has thrown parliamentary powers into sharp relief, especially where powers are dispersed as in federations. This article discusses the effects of federation, focussing on the Commonwealth of Australia. The founding fathers of Australia’s federal parliamentary democracy, now 120 years old, could not have foreseen the likes of the COVID-19 pandemic much less the technologically sophisticated era in which it emerged.
As one would expect, the drafters of the constitution were men of their time and place (yes, all men). They were the leaders of their respective six colonies who saw federation as benefitting the home jurisdiction to which each owed his support. Most particularly, the leaders insisted that, upon their colonies becoming the states of the Commonwealth of Australia, those states would retain primary legislative authority except for those limited policy areas to be exercised by the Australian Government or concurrently with the states. The Constitution provides for the transfer of powers between one or more States and the Federal Government by legislation and agreements.
However, none of the Leaders had experience of a pandemic. In the decades before Federation, Australia had had cases of smallpox but in small numbers and mostly confined to port areas. Spanish Flu would come 20 years after Federation. There was nothing to alert the authors of Federation to the need for powers to deal with an infection spreading across the continent rapidly and unpredictably. Nor could they have foreseen the scientific advances that could reduce the disease’s risks and effects.
When the pandemic emerged, the Australian Federal Parliament and Government had human biosecurity emergency legislation but did not have general powers to over-ride the States on matters reserved for the States’ legislative authority. The closest approximation to such a power is the Federal Government’s right to make grants subject to conditions that it imposes on the recipient State or States. Offering a grant is nothing like the authority of an Act of Parliament!
The two self-governing territories – the Australian Capital Territory and the Northern Territory – are each created by Federal legislation. Although the Territories’ legislation can be over-ridden by the Australian Federal Parliament on any matter, in practice they function much like the six States.
This dispersal of legislative powers, practice over 120 years, judicial interpretation and constitutional development has led to a complex national system. For example, hospitals are regulated by States’ and Territories’ laws but are funded by the Federal Government under national agreement; universities are created under state laws and funded by the Federal Government which uses its financial influence to regulate them. Major airports operate under Federal powers including Federal quarantine controls and associated officials but are otherwise privatised.
Australia’s federal system leads to a mix of legislative provisions for dealing with emergencies generally and the pandemic in particular.
Early in the pandemic, there was confused disembarkation when a cruise ship with many COVID-19 infected passengers reached an Australian port. Should State or Federal Government officials have imposed quarantine controls? A State official boarded the vessel, but port quarantine is a Federal responsibility. The State official was claimed to have followed national guidelines. It was not clear who should have done what. Passengers walked off into the community spreading the illness. Federal and State governments blamed each other for the infection’s spread. The State Government instituted an inquiry into the incident which found that (State) health authorities made "serious mistakes" in allowing about 2,650 passengers to disembark when the ship docked.
Not only do the responsibilities, powers and practices of the Federal Government differ from those of the States and Territories, so do the States and Territories differ from each other. Thus while hospitals in each State or Territory are administered by their respective Governments, that is highly centralised in some (e.g. Victoria) whereas some others have much more decentralised administrations within regions of their states.
Yet further complication is the 144 Aboriginal health services operated autonomously by First Nation communities, under the leadership of NACCHO – the National Aboriginal Community Controlled Health Organisation.
The federation has developed ways dealing with coordination between the Federal Government, States and Territories. There have been long-stating portfolio-based meetings of Ministers (Ministerial Councils), supported by senior public servants (Standing Committees). Since the 1980s there has been a similar heads of government body – the Council of Australian Governments (COAG), recently re-named National Cabinet.
The re-naming was a direct consequence of the pandemic. Very early after the governments became aware of the imminent risks of the disease spreading to Australia and across internal borders, the Australian Prime Minister convened an ad hoc meeting with the heads of State and Territory governments. That meeting concluded that a more fast moving and responsive forum than COAG was needed and agreed to the term National Cabinet (legislation later re-named COAG as the National Cabinet and provided for Ministerial Councils.)
Meetings of National Cabinet are convened and chaired by the Prime Minister. They have been virtual, and each is followed by a statement by the Prime Minister.
The need to invoke emergency powers revealed major differences between jurisdictions. Remarkably, the Federal Government had no general legislative authority to impose emergency powers. However, the actions needed to prevent the spread of the infection within Australia and to deal with cases fell within State and Territory powers, so that there were no suggestions that Federal powers were necessary beyond existing quarantine arrangements.
The latter included the power for the Governor-General to declare that a human biosecurity emergency exists. Such a declaration on 20 March 2020 gave “the Minister for Health expansive powers to issue directions and set requirements in order to combat the outbreak.”
The powers can be used to “either combat the listed human disease (in this case, COVID-19) or to implement WHO recommendations in relation to that disease, the Minister may make a direction or set a requirement to ensure that action takes place.”
The Health Minister first exercised his biosecurity emergency powers under section 477 on 18 March 2020. The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements) Determination 2020 banned international cruise ships from entering Australian ports before 15 April 2020.3 That ban was still in force in early 2022.
It was not until passage of the National Emergency Declaration Act in late 2020 that the Federal Government had general powers to: ‘… make a declaration, called a national emergency declaration, in certain circumstances, including if the Prime Minister is satisfied that an emergency (whether occurring in or outside Australia) is causing harm that is nationally significant in Australia or in an Australian offshore area.
If a national emergency declaration is in force, a Minister may determine that certain provisions of Federal laws are modified in specified ways if certain conditions are satisfied’.
The Act provides that “(t)his Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.”4 It is clear that Emergency Declarations are not intended to over-ride State or Territory powers except “if a state or territory is incapacitated or overwhelmed by the emergency events in question”.
Human Biosecurity Emergency Declarations and National Emergency Declarations respectively made under the Acts are exempted from disallowance by either House of Parliament. The effect is that the accountability of the Executive is severely limited compared with the provisions that are standard in most legislation.
In contrast, South Africa is operating under a National State of the Disaster, administered through “Metropolitan Disaster Management Centres that coordinate local events and support the provincial and national disaster management centres”.
Australian States and Territories are each different;8 each includes emergency powers that can be invoked by Ministers or senior officials, as follows:
Australian Capital Territory: The Health Minister can make an Emergency Declaration under the ACT Public Health Act 1997 (ACT) and can extend the Emergency Declaration for further 90-day periods.9 There do not appear to be provisions restricting the Legislature from disallowance of orders.
New South Wales: The Public Health Act 2010 (NSW) creates the power to deal with public health risks, without a State of Emergency. The Minister can take action and give directions to deal with the risk and consequences of the risk. The Minister can make directions to: reduce or remove the risk to public health in an area; segregate or isolate people within the State; and prevent, limit access to any part of the State. Orders expire after 90 days and may be re-made.10 There do not appear to be provisions restricting either House from disallowance of orders.
Northern Territory: The Health Minister can declare an Emergency Declaration under the Public and Environmental Health Act 2011 (NT). A Declaration empowers the Chief Health Officer to take action and give directions necessary to alleviate the public health risk posed to the community by COVID-19. The Health Minister may extend the Emergency Declaration for 90-day periods.11 There do not appear to be provisions restricting the Legislature from disallowance of orders.
Queensland: The Queensland Chief Health Officer can declare a Public Health Emergency under the Public Health Act 2005 (QLD) (the Act) to assist in containing or responding to the spread of COVID-19. This applies for up to 90 days and further periods of 90 days can be declared.12 There do not appear to be provisions restricting the Parliament from disallowance of orders.
South Australia: The Emergency Management Act 2004 (SA) and the South Australian Public Health Act 2011 (SA) allow a Major Emergency declaration or a Public Health Emergency declaration respectively to be made for 28 days. The State Co-ordinator (and Authorised Officers) is given broad powers to manage and co-ordinate the response to, and recovery from, the outbreak of COVID-19. Note that neither Act gives authority to a member of the Executive. The Governor can extend an Emergency Declaration for 28 days.13 There do not appear to be provisions restricting either House from disallowance of orders.
Tasmania: The island State’s law allows Emergency Declarations to be made under both the Public Health Act 1997 (Tas) and the Emergency Act 2006 (Tas). A Public Health Emergency empowers the Director of Public Health and can be extended indefinitely. A State of Emergency allows the State Controller to exercise special powers in the Emergency Management Act and can be extended for 12-week periods. Again, no member of the Executive is given authority.14 There do not appear to be provisions restricting either House from disallowance of orders.
Victoria: Victoria’s legislative provisions were re-made in late 2021. The Minister stated that the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (Vic) was developed to support the response to current COVID-19 outbreaks and to any future pandemic diseases. The Premier is responsible for making a pandemic declaration. The Act ensures that it is the Minister who exercises the Executive powers (e.g., making an order) and receives expert advice. An Independent Pandemic Management Advisory Committee provides advice, which is published. The Minister will be required to publish an explanation of any rights in Victoria’s Charter of Human Rights and Responsibilities that are or may be limited by a pandemic order and is accountable to a Parliamentary Committee chaired by a non-government MP to scrutinise the Government’s implementation of the Act.15 The Pandemic Declaration Accountability and Oversight Committee can initiate disallowance of part or all of an order but that can be overridden by the Governor in Council i.e., the Government.
Western Australia: A State of Emergency can be declared under the WA Emergency Management Act 2005. A Public Health State of Emergency can also be declared under the Public Health Act 2016 (WA). These declarations allow for the exercise of certain emergency powers. The Minister for Health must extend the Declaration every 14 days.17 The rigorous use of these powers have been particularly effective in limiting spread in the vast State. There do not appear to be provisions restricting either House from disallowance of orders.
Note the huge disparity between the duration of declarations – 14 days in WA, around 90 days for several others.
The wide range of provisions create emergency powers ranging from limited and seemingly mildly intrusive into human rights, to having the potential to severely restrict personal activities including:
Some State and Territory provisions include as few as two of the more general of those powers listed above, whilst other jurisdictions include an extensive selection of emergency powers. That gives rise to accountability for the use of these powers by Ministers and senior officials – a key role for the Parliament. Here we find great diversity. The Federal Parliament for example quickly set up a Senate Committee chaired by a senior Opposition Senator, which has held many public hearings and been effective in holding Government to account. The most recent is established by the new Victorian Act (above) and whilst it can initiate disallowance of a pandemic Order etc, that can be over-turned. Committees in other jurisdictions include some that have used pre-existing structures and terms of reference, to new special-purpose Committees. Orders or like legal instruments made under the emergency powers can be disallowed, not-with-standing concern about other legislation in which subordinate legal instruments have been exempted from standard disallowance provisions.
The Committees are:
There is another important lesson that could have affected control measures in early stages of the pandemic. It relates to one of the technical features of spread of the infection. It was claimed that, like some other pandemic diseases, COVID-19 was contagious i.e., spread by physical contact with surfaces (including hands) contaminated with the virus. It is now accepted that aerosol transmission (airborne virus particles breathed in) is the major means of spread. The pandemic may have been curbed more effectively had the scientific evidence of aerosol transmission been accepted more readily.
Unitary parliamentary systems look so simple and effective! The empirical evidence of Australia’s success in slowing the spread of COVID-19 suggests that there is more to it than the number of levels of government. An advantage of a federation with strong states is that the States and Territories can each innovate and learn from each other’s diverse experiences.