By Professor Joo Cheong Tham, originally published in the Canberra Times 27th April 2020.

The COVID-19 crisis has seen extraordinary powers conferred upon individual Ministers. Under the Biosecurity Act, the Health Minister has emergency powers to issue requirements to prevent and control the spread of COVID-19. The Finance Minister now has at his disposal a $40 billion Advance. The Minister for Social Services has until the end of the year the power to alter eligibility rules and payment rates for all social security payments; and under the $130 billion JobKeeper scheme, the Treasurer has the power to set the rules.

Such broad power presents five serious problems.

The first is the lack of necessity. Some of these powers are no doubt necessary, particularly, the powers under the Biosecurity Act. The need for others are, however, highly questionable given the breadth of discretion conferred. The size of the Advance to the Finance Minister is mind-boggling. The Minister for Social Services can now override the detailed provisions of the Social Security Act. The JobKeeper scheme goes further with only shell legislation enacted and the Treasurer to decide central features of the scheme.

The need for expedited decision-making also rings hollow. Parliament can act with sufficient speed and has demonstrated this on three occasions in the COVID-19 crisis with the passage of the two economic stimulus packages and the JobKeeper legislation

The points to the second problem: an illegitimate transfer of decision-making from Parliament to individual Ministers. Parliament can and ought to deal with many decisions encompassed by such ministerial discretion – decisions that ought to be legislative character. It can meet as a ‘virtual’ Parliament if it has to.

Parliament is not making these decisions simply because government has adjourned it until August – there is a false element of necessity with this remarkable expansion of ministerial power.

This leads to the third problem, diminished accountability. The transfer of decision-making from Parliament to individual Ministers will mean a shift from open Parliamentary debate to more opaque processes – and necessarily less effective public scrutiny. It will also narrow the range of participants from Parliamentarians, their constituents and civil society organizations to the individual Ministers, their staff and those they choose to consult.

There is a false element of necessity with this remarkable expansion of ministerial power.

The fourth problem that follows is the increased risk of corruption. It may feel uncomfortable to say so in this crisis but Lord Acton’s dictum (‘power tends to corrupt and absolute power corrupts absolutely’) still applies. There is a particular risk of misuse for partisan gain with the Advance to the Finance Minister. Unlike the other ministerial powers, the determinations by the Finance Minister are not directed at laying down rules and do not even have to be addressed to the COVID-19 crisis. And again the size of the Advance becomes relevant – it is 400 times the amount of the sports grant program administered by Senator Bridget McKenzie when she was Sports Minister.

All this raises the spectre of poor decision-making. In this crisis, this may be calamitous, even deadly. Parliamentary decision-making and public accountability are not just essential for effecting popular sovereignty but also integral to good decision-making – they ought to harness the wisdom of the multitude and provide checks against bad decisions. Both are all the more essential given the complex considerations involved (e.g. balance to be struck between health, economic and social considerations; which group/s should be prioritized given limited resources).

The crisis is also likely to be protracted. We are at the early stages of the health crisis, which the Prime Minister warns will last at least six months; the economic and social crises will extend beyond the health crisis; and there is the terrifyingly real prospect of rolling waves of infections globally. There is also the urgent need to begin planning for the future, for an Australia likely to be profoundly different from that which existed prior to the COVID-19 outbreak.

What should happen is relatively straightforward. There should be greater transparency of ministerial decision-making including consultation processes and reasons for decisions being made public. Most importantly, Parliament should sit during crisis. A key priority should be amending COVID-19 legislation to set down rules in legislation where practicable; provide ministerial discretion as a fail-safe mechanism rather than as the primary source of decision-making; and confine such discretion to addressing the COVID-19 crisis.

  • Joo-Cheong Tham is a Professor at the Melbourne Law School and a Board member of the Centre for Public Integrity