“To ensure accountability and to preserve our democratic principles, it is important that when it returns, our parliament establishes a special parliamentary oversight committee along the lines already adopted in New Zealand,” said Ms Gaudron, the first woman appointed to Australia’s High Court.
The opportunity to set up such a committee is expected next week. A cut-down version of Australia’s parliament is set to meet in Canberra on Wednesday to approve the Morrison government’s proposal for a $130 billion wages subsidy proposal.
Next week’s sitting is expected to be brief, just one or two days. Parliament is scheduled to then disband until August 11. It would be in an unusually long recess of about 125 days, or a little over four months.
The New Zealand innovation is “a clever and principled compromise between the government, which has rightly closed parliament for public health reasons, and opposition parties which, equally rightly, want parliament sitting to hold the government accountable for its actions in a time of such crisis,” said another of the judges, Paul Stein, formerly a justice of the NSW Court of Appeal.
The New Zealand government of Jacinda Ardern agreed to the creation of the Epidemic Response Committee. One crucial feature is that the government allowed the non-government parties a majority of its members so that it could apply genuine scrutiny. The committee is chaired by the Opposition Leader, the National Party’s Simon Bridges.
“It’s met twice and so far it seems to be doing well on two fronts,” said a professor of constitutional law at New Zealand’s Otago University, Andrew Geddis. “MPs haven’t shied away from asking questions, so it’s not a rubber stamp, and it’s been free of nasty partisanship. And the opposition has been constructive, trying to make it better.”
In agreeing to the committee, the Leader of the House in New Zealand, the government’s Chris Hipkins, said: “I want to acknowledge that scrutiny during this unprecedented time, when the Government is placed in the position of exercising such extraordinary powers, has never been more important.”
The NZ Epidemic Response Committee was set up with the powers including one to compel witnesses and subpoena documents.
Its Wednesday session covered a range of questions: Why bakers and butchers have been ordered shut but not supermarkets; the risks that border testing could miss COVID-19 carriers who aren’t showing symptoms; when updated jobless statistics will be released; and clarifying confusion about renegotiated rental agreements.
Australian Prime Minister Scott Morrison has joined with the leaders of all state and territory governments to create a self-styled national cabinet, designed to improve co-ordination between federal and state governments. New Zealand does not have states.
In comments provided for The Sydney Morning Herald and The Age, Ms Gaudron said: “We have a national cabinet with no statutory or constitutional foundation, making decisions affecting us all now, and it seems, for many months and perhaps years into the future. In the present circumstances that body is fulfilling a vital national role. But the circumstances are not such as to require that its decisions are free of oversight, particularly as new and wide discretionary powers have been conferred on ministers of the Commonwealth.”
The group of judges includes two former judges of the Victorian Court of Appeal, David Harper and Stephen Charles, a former judge of the NSW Court of Appeal, Anthony Whealy, and a former judge of the Queensland Court of Appeal, Margaret White.
The executive director of the Australia Institute, Ben Oquist, who convened the judges’ group, said that Australia was already in a health crisis and an economic crisis “and we’d like to see if we can avoid a crisis of democracy as well”.
At the same time, the president of the NSW Council for Civil Liberties, former NSW director of public prosecutions Nicholas Cowdery, made a similar call on Wednesday: “Even the darkest days of the World Wars did not force parliament to close for extended periods.”
He called on the federal and NSW parliaments to make use of their committee processes for “more democracy and accountability in these difficult months, not less”.
An Australian Senate committee on Wednesday came to a bipartisan agreement to continue to meet by video link to exercise its powers to oversee the government. The Senate Standing Committee for the Scrutiny of Delegated Legislation said that it would monitor laws delegated to it to screen them for any infringements of personal liberty. This committee has a relatively narrow remit that excludes spending matters, for instance.
Peter Hartcher is political editor and international editor of The Sydney Morning Herald.