Andrews emergency plan is a power grab too far

Victorian Premier Daniel Andrews’s plan to extend the sweeping emergency powers he is employing to suppress the spread of COVID-19 is ill conceived. In principle, it is a gross assault on the accountability of the executive to parliament and, ultimately, to the people. At its heart it is a naked attempt to govern by executive decree. It offends the principles of legality and the rule of law that were incorporated into our constitutional framework when the nation was formed in 1901.

Our Constitution created the commonwealth and the states. But few people would grasp how wide the plenary powers of state governments are under their constitutions. There are few checks and balances on state parliaments, whose broad powers to ensure “peace, order and welfare” are almost limitless. Our High Court held, when considering the emergency response of the Rudd government to the global financial crisis of 2008, that elements of the common law and the English Bill of Rights of 1689 had been imported into our Constitution. In an emergency, parliaments may delegate broad executive powers to the executive. But such grants must be interim, finite measures.

What Mr Andrews wants, arguably, is excessive. It is especially problematic when Victoria needs a vigilant, competent opposition. The parlous state of the Victorian Liberal Party is a scandal with national implications. Only the Legislative Council, through a coalition of crossbenchers, looks likely to ensure that fundamental democratic norms are maintained against the hubris of a premier who faces no credible opposition. Probity aside, even in pragmatic terms this power grab is likely to be counter-productive. Lockdown fatigue is an identifiable side effect of the dehumanising impact of the benign house arrest in force in much of Victoria. Across time, people become weary and contemptuous of restrictions. This fuels complacency as regards social distancing, and even deliberate risk-taking by some seeking the illicit fruits of freedom. The cost to the national economy is already staggering. Nationally, the business sector is reeling from the collateral effects of lockdown in Victoria, which is set to suffer a 9.2 per cent hit to state output this financial year. The mental health costs of sustained restrictions on movement and social contact are incalculable. And they will spiral if the Premier gets his way in extending the state of emergency for another year.

In his desire to extend the suite of restrictions on the liberties of Victorians, Mr Andrews has revealed a disturbing thirst for extra power and diminished accountability. His government’s performance does not warrant confidence that such carte blanche would be handled with regard for constitutional norms or due process. The Premier generally has shown more skill in suppressing civil liberties than in suppressing the pandemic.

It was Paul Keating who quipped that it was dangerous to get “between a premier and a bucket of money”. Perhaps Scott Morrison’s version of that scornful jest might be that nothing is as dangerous as to stand between a premier and more executive authority.

Mr Andrews has presided over a disjointed, occasionally chaotic response to the pandemic. Victoria’s rates of infection and fatalities, which have been significantly worse than those in any other state or territory, have occurred despite his invocation of emergency powers and the imposition of a curfew.

For all that, a bizarre, supine social media cult has grown around the Premier, in which legitimate media questioning of his leadership or calls for accountability from his ministers and bureaucrats are met with vile abuse by his Twitter fans. The irony of simultaneously ranting about the conditions on Manus Island while fawning on a premier who has effectively incarcerated his state’s population seems to be lost on this self-styled moral majority. The Premier’s demands for an extension of the state of emergency, fortunately, seem doomed to failure, with the upper house looking likely to reject the legislation. This is no surprise. Even Bill Shorten baulked at the disproportionate response.

It is time to regain perspective. The COVID-19 pandemic is neither a war nor an existential threat to our national survival. We have weathered greater crises that threatened our freedoms and sovereignty. On those occasions, paradoxically, more legislative and fiscal power was concentrated in Canberra. Yet in 2020 various states have closed their borders unilaterally, content to damage the national economy while greedily accepting enormous sums of federal funding to underwrite their parochial folly. State recalcitrance and selfishness seem to have spread more widely than the virus. Long-term damage to the economy and to principles of responsible government seems likely to endure well beyond this crisis. If in winning the battle against COVID-19 we forfeit fundamental liberties, then we will lose something important from our way of life.