Australia is one of the world’s six or seven oldest continuing democracies and, like all democracies, has a suspicion of concentrations of power.
That is why we separate the judicial from the legislative and executive powers. That is why Australians, when asked, always vote to keep their upper houses, as Queenslanders did in 1917.
That didn’t stop the politicians abolishing it and even changing the constitution to require the people approve any move to restore it. But that was an aberration. As Lord Acton said: ‘‘Power tends to corrupt. Absolute power corrupts absolutely.”
Dealing with the virus is of course a matter for the government, but it does require that constitutional proprieties be observed.
At least the latest changes went through the cabinet. But given their importance we should surely see the “health advice” on which it is said to be based.
The unprecedented closing down of the construction industry last week, now partially reversed, had the alarm bells ringing.
And while Gladys Berejiklian invariably says all these decisions are based on “health advice”, Chief Health Officer Dr Kerry Chant told the press she didn’t advise the government to shut down the state’s construction industry.
It is truly extraordinary that what was the most draconian lockdown in the history of this state was affected by Health Minister Brad Hazzard sitting in his office, signing a law described as a mere ‘Order under the Public Health Act’.
This sort of thing is being done today without any of the controls which were once normal procedure.
Anything of this magnitude should always be approved by the Cabinet. Then senior ministers should put them to the Governor in the Executive Council.
The Governor would first want to know what power she had and if there were any conditions on the exercise of the relevant power, whether they had been fulfilled.
And since she was being asked to do this on health grounds, the Governor would surely be entitled to see the health advice that supported this conclusion.
Now the Governor would not be actually taking the decision, just seeing everything was in order. That’s an important role for a Governor which is too often these days skipped over. That, incidentally, makes Annastacia Palaszczuk’s move to propose the Queen make her Chief Health Officer Dr Young the next Governor all the more curious.
There’s another traditional check and balance which in recent years is disappearing in NSW.
Such an order, more significant than many acts of parliament, could once be debated after adoption and potentially disallowed in either House.
Someone like Mark Latham or Fred Nile would be able to insist on seeing the advice and, if not satisfied, propose the House disallow it. That’s how parliamentary democracy is supposed to work.
Without debate, without notice, an announcement is made that a whole key industry was frozen. In the same way Minister Hazzard, in his office, without explanation or apology, fixed up the government’s oversight in not regulating limousine drivers for airline crew.
According to one report, the government was warned about this loophole four months ago.
Remember this is the whole basis of the current outbreak for which the people of South-West Sydney are suffering. It was originally called the Bondi Cluster; perhaps it should have been called the Berejiklian-HazzardNSW Cluster.
Shouldn’t such a law have to go to someone independent, say the Governor?
It seems major changes can be made just by the Premier and a minister. That surely has to change.
David Flint AM is an emeritus professor of law. In 1991, at Barcelona, he received a World Jurist Association award as World Outstanding Legal Scholar. He was made a Member of the Order of Australia in 1995.
