Pandemic failures

The disastrous experiment in tyranny of 2020-22 must never be repeated. By Nick Cater.

If it seems as if we’ve been living in a foreign country, it is because Australia wasn’t supposed to work the way it did in the pandemic. The frailties of our politicians were supposed to be checked by parliaments, the Constitution and the courts.

Decisions were not supposed to be made in secret nor ordinances created with the stroke of a pen. Public officials were supposed to be servants, not licensed agents of a coercive state.

The Fourth Estate should stand on guard as the last line of defence. Journalists should be persistent, obstreperous and contrarian seekers of truth, not timid and incurious scribes.

These and other barriers to bad public policy have prevented Australia straying from its democratic path for more than a century. They were swept away on a rising tide of panic when state and federal governments invoked emergency powers hidden in sundry state and federal Acts that had slipped through parliaments blind to their unintended consequences.

The Biosecurity Bill that allowed former health minister Greg Hunt to promote himself from minister to autocrat passed through federal parliament with the minimum of fuss in 2015.

The then agriculture minister, Barnaby Joyce, introduced the bill with the reassurance that it was “expected that the human health provisions contained in the bill will be seldom used”.

Hunt declared a Human Biosecurity Emergency under section 475 of the Act with the assent of the Governor-General on March 18, 2020. It granted him extraordinary powers that he held for 760 days.

The minor inconvenience of a three-month sunset clause on the emergency provisions in section 475 was overcome by invoking section 476 which allowed the Governor-General the power to extend them indefinitely. Until the powers were finally relinquished on April 19 this year, Hunt and his co-health minister, Scott Morrison, possessed unchecked powers to override human rights, common law and federal parliament.

Hunt used the provision to prevent citizens from exercising their implied constitutional right to enter or leave their own country. When his edict was challenged in the Federal Court in the case of Gary Newman v Minister for Health and Aged Care in May 2021, the minister’s senior counsel described the Act as “a legislative bulldozer”. The challenge was dismissed by Justice Tom Thawley on the grounds that it had not breached the principle of legality.

There was little appetite to debate the merits of emergency powers in the nervous atmosphere of the pandemic. The few who dared to question the proportionality of effectiveness of lockdown measures were ostracised as deniers and delinquents.

In July 2020, the Menzies Research Centre published a report by Henry Ergas and Joe Branigan that called for state and federal emergency powers to be revoked by the end of September 2020 at the latest and for normal processes to resume.

The report said: “The greatest public policy failure would be to retain the world-view of January-April 2020 when there was still very little information about how the global pandemic would play out.”

The report fell on deaf ears. It was at odds with the feverish zeitgeist of fear. The emergency powers remained in place and have yet to be revoked in Queensland and Victoria.

The meticulous research of Geoff Chambers and Simon Benson, the authors of Plagued, has finally put the extent of the emergency powers in the spotlight.

Even so, it is doubtful if the book would have created such waves were it not for the revelation, and subsequent revelations, that Morrison had quietly assumed extra ministerial duties in five portfolios under the cover of the pandemic. If the full story of pan-governmental pandemic mismanagement is ever written, the misjudgment for which Morrison has since apologised is likely to appear as a mere footnote. It will be overshadowed by the callousness and incompetence of premiers, health officials and police chiefs and commanders, notably in Victoria.

Anthony Albanese’s pompous attacks on Morrison last week suggest he is leaning toward US President Joe Biden’s strategy of dedicating his time in office to undermining his predecessor. Rather than be judged on his own record, he would dearly love to frame the 2025 election as a second chance to punish the Coalition.

We need an inquiry, but not the three-year-long partisan witch-hunt Labor is cooking up. If Albanese wants to help us to learn from our mistakes, he should call a royal commission with the powers to examine the conduct of every government in Australia at every level. He won’t, of course, leaving the moral high ground vacant for the Coalition.

There is a residual reluctance among the Coalition frontbench to reopen old wounds, knowing decisions made in good faith at the time are unlikely to look so good in hindsight.

With the Albanese government digging holes for itself at every turn, a lengthy inquiry would at best be a distraction and at worst it would end the Coalition’s hopes of restricting Labor to a single term.

Yet the opposition cannot afford to ignore the raw emotions of former Coalition voters who felt the rough end of the Morrison government’s emergency measures, or others who felt Morrison should have taken a harder line with the states.

Among these are tens of thousands of Australians deprived of jobs and careers and others who were forbidden from leaving their country because they chose not to be vaccinated. They may have been un-jabbed but they still got to vote. But for their defection to centre-right minor parties and independents in May, the Coalition’s primary vote might have been closer to 40 per cent than 35 per cent.

The Coalition can demonstrate its contrition for its mistakes, including Morrison’s portfolio misjudgment, by acknowledging the retention of emergency powers beyond the first few weeks was an error. It should lead a campaign from opposition for the abolition of section 475 of the Biosecurity Act and its replacement with more proportionate powers with stricter time limits that are subject to parliamentary scrutiny. It should exert moral pressure on state governments to do the same. It should also seek a full review of anti-terrorism legislation passed after 2001 to weed out any similar break-glass clauses that give specified ministers untrammelled authority.

Finally, it should declare March 18, the anniversary of the declaration of the human biosecurity emergency, to be an annual day of reflection, reminding future generations about the disastrous experiment in tyranny of 2020-22 that must never be repeated.

Postscript

The author’s criticism of the misuse of emergency powers during the pandemic should not be seen as an attempt to paint all governments state and federal with the same broad brush.

It was state governments that most egregiously abandoned normal democratic processes and caused by far the most pain, most notably in Victoria.

Then federal health minister Greg Hunt had recognised the dangers in the extraordinary powers granted to him under the Biosecurity Act. He established a set of protocols with the help of then attorney- general, Christian Porter, to constrain their use.

The restraint was in contrast to some decisions taken at State level such as imposing a curfew in Victoria without medical or police advice . 

The author’s principle criticism holds, however. The emergency powers should have been in place for weeks, not months. Had the measures effected by emergency powers been given parliamentary and public scrutiny, the unintended consequences would have been fewer and the impositions placed on our lives less severe.

The Coalition must lead the charge to amend section 475 of the Biosecurity Act to place stricter limits around its emergency provisions.

We cannot assume the powers will fall into a pair of hands as safe as those of Greg Hunt next time they are pulled off the shelf.