Andrew Ray and Alexandra Touw*
As a ‘second wave’ of COVID-19 cases continues to spike in Victoria, the Federal Parliament has cancelled its next two sitting weeks, originally scheduled for the beginning of August. This precaution is wise, and is supported by both the opposition and medical advice. It does however raise accountability concerns with the government facing reduced scrutiny and debate from the Opposition. Additionally, while a lot of government business can be conducted by the executive and parliamentary committees (which have been operating virtually), the executive cannot debate or pass legislation. Critically, this means that the government cannot pass supply; the inability to do so led to the infamous Whitlam dismissal. Given that it is unlikely that Australia will be able to eradicate COVID-19 until a vaccine is developed, Australia should shift to online parliamentary sittings rather than face ongoing uncertainty. Online sittings have been proposed and enabled in several jurisdictions, with commentators noting that they could enable parliaments to function regardless of the pandemic situation. While not without their challenges, video and audio-conferencing technology could enable the Federal Parliament to operate despite localised outbreaks and would, according to leading constitutional experts, likely comply with Australia’s constitutional requirements.
2. Accountability Issues Surrounding Parliament Shutdown
The Federal Parliament should move to a virtual format to address the serious accountability issues which arise as it is unable to fulfil its constitutional mandate to the people. The two key issues which arise from the ongoing cancellation of parliamentary sittings are the consequent reduced ability of the Parliament to scrutinise executive actions and the reliance on executive orders and delegated legislation to address issues associated with COVID-19.
In the Australian system of representative democracy and responsible government, one of the key roles of the Federal Parliament is to hold the Executive to account for its actions on behalf of the people. Section 64 of the Constitution outlines this function by requiring each government minister to be a member of either house of parliament. Without sittings of parliament, the opposition and independent members are unable to publicly question government ministers about their actions and the Australian people (including the media) are unable to scrutinise the answers provided. When debate about important issues with national impacts, like the Budget, are continuously postponed, this poses serious accountability issues.
As parliamentary sittings have been further postponed until the end of August, Australia’s coronavirus response naturally continues to rely on delegated legislation and executive actions. Unlike legislation, these executive actions are taken without the benefit of open debate in Parliament, aggravating the lack of accountability measures integrated into the pandemic response. While some of these concerns are alleviated by the creation and operation of the COVID-19 Senate Special Committee, the Committee has ceased accepting submissions. This means that scrutiny remains limited, consequently reducing accountability while Parliament remains in recess.
3. Impact of Ongoing Uncertainty
As the recent outbreak in Victoria and clusters in Sydney indicate, COVID-19 can spread extremely quickly. With the move to cancel two weeks of the August sitting the Federal Government has indicated that it does not want to take the risk of bringing COVID-19 to Canberra (or presumably to spread it between Members of Parliament). This indicates that the Government perceives ongoing risks which would justify (or could be used to justify) cancellation of future sittings for the year. The August sitting would have been the first after the update on Australia’s economic and fiscal outlook due to be delivered on the 23rd of July. While this sitting is not as critical as sittings in October (where the Budget will be handed down) and November (when a supply Bill will need to be passed), there is nothing to indicate that future localised outbreaks could not impact these critical sittings.
Similarly, there are significant questions about what should occur if there is a localised outbreak in a single small jurisdiction (as opposed to the two largest states of NSW and Victoria). If Parliament were to sit in such a scenario it is possible that one State may be disadvantaged, particularly in the Senate. If Parliament continues to rely on physical sittings, it may therefore be forced into a ‘stop-start’ approach, the same approach that is significantly impacting business and consumer confidence.
4. The Need for Online Sittings
The obvious solution to the above challenges is for Parliament to adopt rules allowing for online or hybrid sittings if necessary in the circumstances. These special sittings would mimic the ‘work from home’ approach being urged by the Victorian Premier and Prime Minister to help reduce community transmission. Leading constitutional law academics, including Anne Twomey from the University of Sydney have suggested that such a move would likely be constitutional provided certain measures are taken. Two suggested measures are providing for ‘key personnel’ to host the video or audio call from within Parliament House, and introducing legislation authorising online sittings. Given that committee meetings have been operating relatively successfully via online means, it is not clear why similar legislation has not been passed allowing the legislature to sit remotely when needed. While there may be some procedural concerns around such a move, given the global trend towards adopting rules of Parliament which allow remote operation and the adoption of remote working arrangements by some legislatures, these concerns can be sufficiently addressed.
Alternatively, if online sittings are not adopted, continued localised outbreaks may render it desirable to relocate sufficient Members of Parliament to Canberra to ensure that Parliament can sit and pass legislation. This could be achieved through co-operation between the major parties, relying primarily on ACT and NSW Members of Parliament. This approach should be avoided to prevent allegations that certain States’ interests were not being represented. Ultimately, the need for ongoing accountability (especially given the increasing use of executive power to respond to the COVID-19 pandemic) suggests that the Federal Government should take the opportunity in August to pass legislation allowing for online sitting. While online sitting may be authorised by the present Standing Orders, legislation or express Orders authorising online sitting would likely reduce the risk of challenge. If legislation is passed, it should include a sunset clause to ensure that these measures do not continue to apply beyond the pandemic without review. This approach would likely be more transparent than an amendment to the Standing Orders, as it ensures that the Federal Parliament will engage in open and public debate.
*Andrew Ray is a final year LLB(Hons)/BSc student studying at the Australian National University, Alexandra Touw (BCom USyd) is a fourth year LLB student studying at the University of Sydney. The piece reflects the personal views of the authors. The authors would like to thank Associate Professor Heather Roberts and Senior Lecturer Dilan Thampapillai for their guidance and feedback on this piece.