SPECIAL REPORT: PARLIAMENTARY DEMOCRACY DURING THE COVID-19 PANDEMIC
COMPLEXITY: EVOLVING PANDEMIC MEETS FEDERATION COVID-19 RESPONSES IN THE PARLIAMENTS OF AUSTRALIA 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. Complex Federal System 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.1 Not only do the responsibilities, powers and practices of the Federal Government differ from those of the States and Territories,
Professor Hon. Dr Ken Coghill is a former Member, Parliamentary Secretary of Cabinet, and Speaker of the Legislative Assembly at the Parliament of Victoria (1979-96) in Australia. He was also an elected local government councillor. Since retirement from Parliament, he has conducted parliamentary research and taught public management at Monash University (1996-2018) and Swinburne University (2018 to present). He has contributed to many books and journals, reporting his research, specialising in the enhancement of Parliamentarians’ knowledge, skills, capabilities and ethical competence. He is also a member of the Editorial Advisory Board for The Parliamentarian.
34 | The Parliamentarian | 2022: Issue One | 100 years of publishing
