This is one of a special series of posts exploring the public law implications of the COVID-19 pandemic. For more information on the Gilbert + Tobin Centre’s work in the area of public law and public health, see here.

BY SARAH MOULDS

In response to the complex and potentially devastating threat posed by COVID-19, Parliaments around Australia have transferred unprecedented powers to executive governments and their agencies, often with the full support of the communities they represent. The usually sturdy doctrine of separation of powers that defines Australia’s constitutional democracy wobbled as Minister after Minister was handed sweeping discretionary powers designed to facilitate the fight against the invisible COVID-19 enemy.

What interests me greatly is that from within this throng of emergency law-making and institutional power transfer, one parliamentary oversight mechanism managed to struggle to its feet. The very same parliamentary mechanism that owes its existence to war-time law-making emerged as the go-to safety blanket in this modern crisis: the parliamentary committee. While Parliaments themselves have packed up shop and suspended or reduced sitting days, parliamentary committees have emerged as the forum of choice when it comes to providing some form of parliamentary oversight of executive action.

As George Williams and Lisa Burton have pointed out, this choice – this instinctual reliance on a mechanism designed to provide parliamentarians with the space to deliberate and examine executive decision making – says something important about the parliamentary model of rights protection that exists in Australia. It also raises important questions as to whether parliamentary committees are up to the job – particularly when the stakes are so high and the political terrain so uncertain.

In this post I will briefly describe some of the specialist parliamentary committees that have been set up to oversee the extraordinary powers transferred to the executive in response to COVID-19, and offer some thoughts on the capacity of these committees to deliver meaningful rights scrutiny in these exceptional circumstances. So what are parliamentary committees anyway, and how do they usually work to protect rights and hold the executive to account?

As Associate Professor Laura Grenfell has eruditely observed, a ‘spectrum’ exists when it comes to parliamentary rights scrutiny in Australia, and the role parliamentary committees play in assessing and reporting on the rights impacts of proposed or existing laws or examining the extent to which law-making power is transferred into the hands of the executive. At one end of the spectrum are the more sophisticated, structured and systematic approaches to pre-legislative scrutiny found within the Parliaments of the Commonwealth, Victoria, Australian Capital Territory and Queensland – where rights scrutiny conducted by parliamentary committees occurs within the context of statutory prescribed rights mandates (such as the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)). At the other end of the spectrum are jurisdictions like South Australia, which lack any overarching human rights legislation or any requirement to scrutinise Bills against a set of prescribed criteria, and instead rely on an ad-hoc system of parliamentary committee review. In each of these jurisdictions, no matter where they sit on the spectrum ‘select’ committees can be established to examine a particular law or thematic policy area and report to the Parliament on their findings. These committees are often granted a range of inquiry powers to engage with the public on the issues referred to them. Flexible in mandate, timeframe and outputs, it is this ‘specie’ of committee that has been commonly employed to undertake the COVID-19 oversight role.

For example, on 8 April 2020, the Senate resolved to establish a Select Committee on COVID-19 to inquire into the federal Government’s response to the COVID-19 pandemic. The Senate has given the Committee a long lead time to report, with a deadline of 30 June 2022, but the Committee has called for submissions from the public by 28 May 2020. The terms of reference of this special committee include ‘the Australian Government’s response to the COVID-19 pandemic’ and ‘any related matters’. The Chair of the Committee is ACT ALP Senator Katy Gallagher, supported by Victorian Liberal Senator James Paterson as Deputy Chair. Other Committee members are NSW Nationals Senator Perin Davey, NSW ALP Senator Hon Kristina Keneally, Queensland ALP Senator Murray Watt, Tasmanian Senator Jacqui Lambie and WA Senator Rachel Siewert from the Australian Greens. A long list of other Senators can be part of the work of the COVID-19 Committee as ‘participating’ members – an interesting feature of the Commonwealth committee system not replicated in all Australian states.

Special select COVID-19 Committees have also been established in South Australia and the ACT with similarly broad terms of reference and wide powers to call for public submissions and request information from government. In NSW, the Legislative Council’s Public Accountably Committee has been tasked with undertaking an inquiry into the NSW Government’s management of the COVID-19 pandemic.

In the jurisdictions with more sophisticated committee systems, select committees like the special COVID-19 Committee generally work alongside other committees in the system, including the older, pre-existing ‘standing’ committees such as the Senate Standing Committee on the Scrutiny of Bills or the Standing Committee on Delegated Legislation, which have existed at the Commonwealth level for many decades and focus on ‘technical scrutiny’ of proposed laws against certain rights-based criteria, rather than evaluating policy merits. At the Commonwealth level, these two committees – along with the statutory Parliamentary Joint Committee on Human Rights (PJCHR) – have been busy looking at COVID-19 laws despite the general exodus of MPs from Canberra. Like the workers stocking the shelves at Woolworths and Coles, the members of these committees and their secretariat staff have been slogging away behind the scenes. For example, the PJCHR has committed ‘to meet regularly by teleconference to continue its important work of scrutinising all federal legislation for human rights compatibility, including legislation relating to the COVID-19 pandemic’. The Delegated Legislation Committee has also committed to continue to meet regularly ‘to ensure that there is appropriate parliamentary oversight of all delegated legislation, particularly executive-made laws which implement COVID-19 response measures’ and has published a list of all COVID-19 related delegated legislation registered on the Federal Register of Legislation.

The membership, powers and functions of any parliamentary committee is ultimately in the hands of the Parliament itself, but is often prescribed by the Standing Orders and sometimes by statute. The capacity of any individual committee to influence the outcome of a policy proposal or fate of a legislative provision is difficult to measure and often dependent on political factors. After all, at the end of the day, the most a parliamentary committee can do is publish a report, make recommendations and sometimes, move to disallow a regulation. Many commentators and scholars, including Adam Fletcher, and Daniel Reynolds along with George Williams, suggest that this form of rights scrutiny is particularly weak in the face of executive dominance or politically popular legislative agendas – although my research suggests that when different committees work together the rights impact of this form of parliamentary scrutiny can be surprising strong and deep.

The burning question arising from the current context is whether the special COVID-19 parliamentary committees – either going solo or working alongside other committees – are up to the job when it comes to providing a meaningful check on executive power and scrutinising rights impacts.

In my previous research, I have looked at the role parliamentary committees play in rights protection in other emergency contexts such as responding to the threat of terrorism. Other scholars, including Dominique Dalla-Pozza, Shawn Rajanayagam, George Williams and Daniel Reynolds, Laura Grenfell and Julie Debeljak and Adam Fletcher have also carefully examined the role parliamentary committees play in rights protection in the context of law-making in response to serious threats or public emergencies.

There is no consensus view among these scholars as to whether parliamentary committees can provide meaningful rights protection and hold the executive to account in these contexts. For example Fletcher, Rajanayagam, and Williams and Reynolds warn that without structural reform that contemplates an active role for the courts, parliamentary models of rights protection are fatally flawed. Despite this divergence, there is a degree of commonality in identifying the relevant factors that may be determinative when it comes to a committee’s overall influence or impact. These common factors include:

  • The deliberative capacity of the committee – such as the extent to which the committee is able to engage meaningfully with experts, community organisations and individuals, as well as its potential to provide a ‘safe space’ for members to change their mind in the face of compelling evidence.
  • The political characteristics of the committee – such as whether the committee has a government or non-government majority, the political seniority of its members and expertise of its Secretariat staff, whether it is comprised of members from both Houses, or whether its mandate is considered to be highly politicised or not.
  • The relationship between the committee and relevant executive agencies – including the committee’s access to relevant government information or capacity to hold ‘private briefings’, and track record of developing practical recommendations that can be readily implemented by government.
  • Whether the committee is tasked with a ‘policy scrutiny’ or ‘technical scrutiny’ function – such as whether the committee is tasked with undertaking compliance-related activity by assessing proposals against a prescribed list of criteria, or whether the committee is given broad scope to examine the policy merits of the law and hold public inquiries and examine witnesses.
  • Whether the committee exists within a sophisticated system of committees or operates on an ad-hoc basis – highlighting the ‘spectrum’ of experiences documented by Grenfell and noted above.
  • Timing of the issue of committee reports and recommendations – including whether the committee’s reports, recommendations or findings are able to be tabled or published prior to the enactment of the proposed law or before the cessation of any relevant disallowance period or sunsetting provision.

Within each of these factors tensions arise. For example, establishing relationships of trust between committee members and key executive agencies in times of emergency can be critical to developing viable, practical, less rights-intrusive alternatives ‘behind closed doors’ before public recommendations for reform are made. However, these same relationships can undermine public and political confidence that the committee is acting ‘independently’ when undertaking it scrutiny role.

Applying these factors to the Commonwealth COVID-19 Select Committee, an interesting image emerges. Some factors point towards the Committee having some influence when it comes to improving the rights compliance of the laws enacted in response to COVID-19 or providing a meaningful check on executive power. For example, the broad and diverse membership of the Committee suggests that it will be well positioned to attract input from a wide range of experts, community organisations and individuals, provided it can overcome the practical challenges associated with ‘online’ or ‘virtual’ public engagement. This is no small challenge but one that could be overcome with the provision of adequate resources, including the use of senior Secretariat staff with experience in utilising innovative consultation techniques in previous committee inquiries. However, the absence of any capacity to host ‘face-to-face’ public inquiries alters the optics of committee scrutiny, which can be central to attracting media attention or generating external political pressure to support the work of these bodies.

The interesting political shift away from entrenched ideological positions towards a pragmatic approach to policy development in this area also points to the potential for a committee like this to provide a ‘safe space’ for members to change their mind in the face of compelling evidence. Commonwealth-level experimentation with novel models of engaging with experts – such as the National Cabinet approach – also provides interesting new platforms from which to consider the deliberative potential of a committee like this.

The Commonwealth COVID-19 Committee also exists within a sophisticated system of parliamentary committees, a small handful of which continue to actively scrutinise the COVID-19 laws and delegated legislation. These ‘technical scrutiny committees’ – including the Scrutiny of Bills Committee, the Delegated Legislation Committee and the PJCHR – have the potential to furnish both the COVID-19 Committee and its submission makers with important, detailed information about the extent to which these laws adhere to rights principles – even if the COVID-19 Committee itself does not focus exclusively or explicitly on the rights impacts of the laws.

Pulling against these factors are political characteristics of the COVID-19 Committee, which appears to lack authority at least at this early stage. The Committee’s membership is heavily weighted towards the Opposition and cross bench – reflecting the debate that ensued in the Senate at the time the COVID-19 laws were passed. While some members are senior political figures (such as Senator the Hon Kristina Keneally), the political landscape is highly dynamic. The starting position of non-government Senators to ‘not stand in the way’ of the Government’s COVID-19 assistance agenda is rapidly giving way to more nuanced political positioning that might not be clearly visible until Parliament resumes in August.

Then there are some unknowns that could go either way when it comes to the impact of the COVID-19 Committee. The relationships the Committee is able to forge with key government agencies (including Centrelink, the Department of Health, and the Australian Federal Police (AFP)) and state and territory bureaucracies could be determinative of its overall success. Research into the role of the specialist Parliamentary Joint Committee on Intelligence and Security (PJCIS) suggests that establishing strong relationships of trust with key agencies such as the Australian Security Intelligence Organisation and the AFP provides Committee members with the opportunity to ‘workshop’ legislative and regulatory alternatives ‘behind closed doors’ and generate consensus views across the political divide. Importantly, and perhaps surprisingly, this research also suggests that when committees work closely with executive agencies they can also have significant rights-enhancing impacts on the final shape of the law – as they move to identify less rights-intrusive ways to achieve the same shared policy goals.

This type of trajectory could occur in the context of COVID-19 if the Committee is able to develop these close relationships with key agencies. From a practical perspective this could mean requesting secondees from key agencies to help advise the Committee’s Secretariat staff or providing the Committee with ‘private briefings’ on key aspects of the practical implementation of the existing laws, and on legislative alternatives. Of course, this closeness with the executive could also give rise to questions about the independence and rigour of the committee as a scrutiny body – and may be resisted by members of the Committee itself. If this occurs, the COVID-19 Committee would be highly dependent on the submissions it receives from the community and external experts, some of whom may lack capacity or appetite for public engagement in committee processes.

In its very first public hearing, which took place on 23 April 2020, the COVID-19 Committee demonstrated a strong willingness to engage constructively with experts, public servants and the community utilising a wide range of technologies and platforms, with Committee Chair Senator Gallagher explaining that:

Public hearings will be held virtually, with senators and witnesses joining in by video link or telephone. We will be conducting our work with the assistance of various technologies. We are hopeful that this will be seamless, but there may be teething problems, so apologies for that upfront if we do encounter those.

In this first public hearing, the Committee examined two witnesses: Chief Medical Officer Professor Brendan Murphy and Acting Secretary of the Department of Health Caroline Edwards. Committee members and participating members asked the witnesses a wide range of questions largely focused on the effectiveness of the Government’s initial responses to slowing the spread of the COVID-19 pandemic in Australia rather than a detailed analysis of the rights impacts of any particular legislative or regulatory measures. However, towards the end of the hearing both witnesses were asked about the effectiveness and privacy impacts of the Government’s (at that time not yet implemented) ‘contract tracing app’, suggesting that the Committee is interested in exploring rights themes and intends to engage in rigorous examination of the Government’s proposed and existing legislative and regulatory measures. The need for timely information from the public service was also reiterated by Committee Chair Senator Gallagher who said that:

This committee is a key vehicle to provide accountability, transparency and scrutiny of the Australian government’s response to the pandemic for the Australian people. Over the next 18 months we will work tirelessly to shine a light on every aspect of the national response. This is not your typical Senate committee. We will demand a lot of witnesses in terms of a cooperative approach that is based on working together in the national interest to ensure all aspects of our response are the best they can be. Political grandstanding will be kept to a minimum; major political points can be made by members in other places.

… Considering the significant challenges facing the nation and the high level of public interest in the matters we are inquiring into, the committee expects that ministers and public servants at the table will be in a position to answer the questions put to them by committee members. The committee expects witnesses to be absolutely frank with it and to provide as much information as possible. This is what the Australian people would expect of their government and of their Public Service.

In the COVID-19 context, a range of additional factors are likely to be in play when it comes to anticipating the overall impact of these special select committees. In particular, the fact that Parliaments themselves are not sitting or are sitting less frequently significantly alters both the political dynamic in which these committees operate, and the time frames within which these committees are working. The risks of extremely quick legislating can already be seen in the form of the Scrutiny of Bills Committee’s Scrutiny Digest No 5 of 2020, which raised a number of highly relevant concerns with respect to the Coronavirus Economic Response Package Omnibus Bill 2020 (Cth), but was not tabled until well after the Bill was enacted into law.

It is too early to see how all of these factors will play out or to accurately guess the impact of any of the special select COVID-19 committees. It may take years to evaluate their role and influence, particularly if regard is had to the long reporting timeframes. But it is clear from the mere establishment of these committees in a number of Australian Parliaments that parliamentary committees hold an important place in our rights scrutiny culture in Australia. It suggests that, rather than looking to the courts to keep watch on extraordinary executive power, we want groups within the Parliament to play that role. It also suggests that we – that is the community – expect to have the chance to have our say about these extraordinary laws, even if we cannot attend Parliament House in person. ‘Extraordinary times call for extraordinary measures’ is a much-repeated refrain in Australian in the autumn of 2020, but saying this will not shield unbridled executive power from scrutiny forever. It is up to the parliamentary committee systems in Parliaments across Australia to help define the parameters of our legislative and regulatory response to this emergency and to raise the alarm about their broader rights impacts. If these committees manage to undertake this task with rigour we could be in the position to move closer to identifying the key determinative factors of effective parliamentary rights protection in Australia. This should offer some hope for scholars and commentators keen to see any wobbles to the foundations of the doctrine of separation of powers stabilised in Australia.

Sarah Moulds is a senior lecturer in law at UniSA: Justice + Society and co-founder of the Rights Resource Network SA

Suggested citation: Sarah Moulds, ‘Keeping watch on COVID-19 laws: are parliamentary committees up to the job?’ on AUSPUBLAW (01 May 2020) <https://auspublaw.org/2020/05/keeping-watch-on-covid-19-laws:-are-parliamentary-committees-up-to-the-job?>