The Acting CPA Small Branches Chairperson explores the methods for optimising parliamentary functions without jeopardising the Executive’s capacity to respond effectively using the example of the Australian Capital Territory.

In the wake of crises, it’s common for Legislatures to temporarily yield greater power to Executive governments to allow their response to be fast and impactful. While this works for short-term emergencies, it is unsustainable to maintain this imbalance of power over longer-term crises, such as pandemics.

As the Commonwealth Parliamentary Association reflects on two years of the COVID-19 pandemic in this edition of The Parliamentarian, this article seeks to explore the methods for optimising parliamentary functions without jeopardising the Executive’s capacity to respond effectively during long-term crises. This is illustrated through the experiences of the Legislative Assembly for the Australian Capital Territory in managing the imbalance of power during the pandemic. Through this, I aim to make the case for the importance of adaptability and creativity in ensuring the core functions of Parliaments endure throughout persistent crises.

Why do these challenges arise?

Before progressing, it’s valuable to reflect briefly on what it is about long-term emergencies that lead to challenges arising.

The source of the issue lays largely in the distinction between response and recovery. In a short-term crisis, the actual incident begins and ends quickly. Its immediate impact is obvious and static, which enables a prompt and distinct shift from response to recovery. This importantly allows a reset of the temporary increase in authority yielded by Legislatures to Executives so they can respond to emergencies, restoring the balance of power. By contrast, incidents in long-term crises are drawn out over weeks, months, or years and their immediate impact evolve continuously. The fluidity and extended nature of these emergencies blur the line between response and recovery, often requiring them to occur simultaneously. It is from blurring that challenges arise, as the absence of a distinct end to the response period makes it unclear when to restore the pre-crisis balance of power.

Executive overreach

The rationale behind yielding increased authority to Executive governments during long-term crises is to empower them to respond to an immediate incident effectively. For Parliaments, this sometimes includes relaxing the rigidity of the Executive/Legislative divide and complying with government directions issued as part of the crisis response. Though an exercise in solidarity, it presents the risk of being seen as institutional acquiescence and opening the doors to governments overreaching the separation of powers and imposing on the Legislature. Though this may seem alarmist, the extended nature of long-term crises and inevitable ‘crisis fatigue’ means such imposition could innocuously manifest over time without anyone noticing.

Unchecked, such overreach can evolve into ‘Executive aggrandisement’, where governments concurrently consolidate their increased authority and weaken its checks and balances.2 The main casualty in this is parliamentary scrutiny and oversight, which can be discretely curtailed by closing the Legislature or limiting its operations. This is especially concerning as research indicates that decisions to take these measures appear unrelated to the severity of crises.3 Parliaments therefore require responsive measures which allow them to function effectively during crises while limiting cause for overreach or aggrandisement to occur.

Preserving Parliaments’ capacity to sit

One important way to preserve this is by preserving the capacity for the Legislature to sit during emergencies. While business continuity plans are common for modern Parliaments, these often cater to the short-term where sitting might be unsafe. What became clear as the Coronavirus pandemic set in was that a different set of challenges were presented.

The most visible evidence of this came when our Assembly in the Australian Capital Territory sat during the first wave of the Coronavirus in 2020. For a period, the Assembly agreed that only 13 Members would occupy the chamber (thus ensuring adequate physical distancing requirements were met), and that during Question Time, only Ministers who had to answers questions were present in the chamber. Later, when all 25 Members were permitted in the chamber at once and in order to maintain physical distancing, we utilised the public galleries to seat some MLAs and installed a temporary podium from which those Members could speak.

Physical changes to the layout of the Assembly chamber were made to adapt to the conditions of the crisis. Two new crossbenches were commissioned, and a pair of tables were retrofitted to increase the number of seats available on the floor. When it became clear that the pandemic would persist, microphones were added to the new desks and the temporary podium was removed. An acrylic divider was also installed between the clerks-at-the-table.

These changes allowed all Members to participate in sittings at even the most restrictive level of physical distancing. Measures such as these are an effective way to strengthen a Legislature’s operations during a long-term crisis while limiting opportunities for Executive overreach or aggrandisement.

Conducting proceedings using non-traditional mediums

For Parliaments that are unable to reformat their chambers, conducting proceedings using non-traditional mediums is a functional alternative with similar results. Access to new digital technologies is making it easier for Legislatures to ensure they can perform their core functions during long-term crises without having to meet physically – either in part or at all. While many hands have been wrung over the implications of digitising Parliaments, the COVID-19 pandemic has again shown us the value of embracing non-traditional technologies.

As we were able to reformat our chamber, our Assembly hasn’t had to use remote voting or conduct sittings with mixed or full virtual participation, though many others have.7 However, our Committees shifted to conducting virtual meetings and hearings with support staff coordinating them from within the Assembly building. What this did was optimise the capacity of Standing Committees to continue to scrutinise non-pandemic-related actions of the government. Only through being able to adapt our procedures was this achieved, which highlights how valuable institutional flexibility is. It is entirely possible for Legislatures to have robust procedures and traditions without the use of prescriptive rules which restrict its responsiveness during crises.

Legislating by delegation

Governments rely on an increased legislative power delegated to them during crises by Legislatures. These so-called ‘emergency powers’ allow the Executive to make and amend regulations and direction outside of the parliamentary legislative process to aid their crisis response. While this is proportional to the brevity of the delegation during short-term crises, the existence of a second legislative stream outside of a Parliament during extended emergencies is conflicting.

A University of Melbourne report notes that this conflict stems from the passage of stringent delegated crisis legislation without deliberation, especially when the Parliament is able to sit.9 Parliaments therefore need to be creative in using the tools they have available to provide increased scrutiny of these measures which, by reason of the crisis and prior delegation, are not being passed in the Legislature.

Using Committees to provide ongoing scrutiny

Establishing a specialist Committee is the quintessential way to provide this scrutiny. During the pandemic, the Assembly established two Select Committees into the Territory’s response. The first Committee was established on 2 April 2020 and over its life, has held 21 hearings, produced four interim reports, and made 40 recommendations. The second Committee was established on 16 September 2021 during the first sitting after the ACT entered its second lockdown on 13 August.

In addition to performing the Parliament’s scrutiny function for the delegated crisis legislation, these Committees also invited public submissions and heard from individuals and community and industry groups about the impact of the government’s response. For the most part, the pandemic response Committees have enjoyed a robust but collaborative relationship with the Executive, notwithstanding a difference in technical advice which initially saw a stand-off over the Committee’s preferred videoconference platform.12 The innate flexibility and collaborative nature of Committees allows Parliaments to maintain thorough oversight of delegated legislation without jeopardising an Executive’s crisis response.

Limitations

It is important to acknowledge that there can be limitations to this scrutiny depending on the type of delegation that Legislatures provide. In the ACT, health declarations made under the Public Health Act 1997 are notifiable instruments, rather than disallowable. Though the Assembly can debate them in motions in the chamber or summon the Minister responsible to appear before a Committee, it lacks the easy recourse to amend or veto that is available with disallowable instruments.

There is no ‘silver bullet’ solution that perfectly balances the Executive’s need to be efficient when responding to crises and the Legislature’s need to provide oversight. That which works well for one branch is unlikely to satisfy the other. However, it is important we as Parliamentarians continue to explore possible solutions to ensure the appropriate balance between informed decision-making and democratic legitimacy.

Technocratic accountability

Long-term crises such as communicable disease outbreaks, fiscal collapses, and extended civil unrest are characteristically technical. As such, it is common for relevant Ministers and specialist public officials to be empowered to lead the technical response. Understandably, there is increased public and political interest in expert-led and informed decision-making during such emergencies.13 As a former health professional, I greatly value the expertise many have contributed to shaping the ACT’s response to the present Coronavirus pandemic. The challenge that Parliaments face is how to hold Ministers and expert officials accountable for the decisions they make in response to extended crises without hampering their capacity to do so effectively.

Regular reporting of decisions

Requiring regular reports to the Legislature of decisions and their rational is one way by which accountability can achieved without unnecessary impediment. In his critique of Australian pandemic responses, Monash University’s Eric Windholz stresses that: What is needed is a decision-making framework that ensures technocratic medical-scientific experts function within democratic and accountable governance structures, without losing the substantive and legitimising benefits that come from their prominent participation.

The logic behind this is simple. Those who are delegated increased legislative power by a Parliament during a crisis need to be held accountable for its use in a way which is comparable to if Parliament itself were exercising the same power. In order to achieve this, our Assembly legislated a requirement for a report to be presented in the chamber every month for as long as emergency powers were in use. This was added to the Covid-19 Emergency Response Act 2020 by an opposition amendment, in recognition of the reality that “significant decisions need significant scrutiny.”15 There have been 19 updates provided to the Assembly since the Act’s notification on 8 April 2020, delivered by Ministerial statement. These have been a valuable opportunity to record the rationale for why decisions have been made through Hansard and offer a regular opportunity for the Assembly to discuss the ongoing response in a robust, constructive way.

This practice has also continued to evolve. Recently, the first human rights consideration statement from the Chief Health Officer was presented to the Assembly by the Health Minister as part of their regular update.16 This developed out of observations by the pandemic response Committee that health directions didn’t require statements addressing their compatibility with the Human Rights Act 2004 (ACT) in the same way that legislation presented in the Assembly would normally. This has helped establish a good precedent for accountability in future long-term emergencies. It’s yet another example of how institutional flexibility (tempered with some persistence) can help optimise parliamentary functions – such as accountability – during extended crises.