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Democracy Suspended, NSW Government Rules By Decree

Kieran Adair

April 21, 2020

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The NSW Parliament sits empty

Parliament was suspended in NSW last month – and with it, almost 200 hundred years of democratic convention.

Emergency legislation, pushed through Parliament on its last day of sitting, granted the Attorney General the power to change large swathes of legislation by ‘regulation’ – that is, without first having to subject the changes to a parliamentary vote.

As Parliament breaks for six months, due to concerns about COVID-19, the Government has argued these powers are necessary – as it’s likely legislation will need to be amended as the state continues to deal with fallout of the pandemic.

However, without parliamentary scrutiny, there’s enormous potential for these new powers to be abused – especially as a way of passing legislation that wouldn’t normally pass public scrutiny.

During the debate, Adam Searle, Leader of the Opposition in the Legislative Council, labelled the new powers a “a very dangerous course of action.” The Shadow Attorney General said the new powers were something he “would die in a ditch fighting” were it not for the COVID-19 crisis.

Ruling By Decree

The Government’s use of broad regulation-making powers, in lieu of public debate, has already come under fire in recent weeks – with the State’s Health Minister using similar powers to create draconian new fines, and prison sentences, for those caught breaking social distancing rules.

The new powers were just one component of the Government’s larger Covid-19 Legislation Amendment (Emergency Measures) Bill 2020. The omnibus mega-Bill made significant changes to over 20 different pieces of legislation – a tactic historically used to slide through unpopular changes with minimal scrutiny or debate.

Section 366 of the Bill grants the Attorney General power to alter several Acts that determine how the court system functions. These include arrangements for criminal trials, pre-trial procedures, apprehended violence order proceedings, bail and sentencing and matters relating to the administration of sentences – unprecedented interference in the independent functioning of the judicial system.

More concerning, Subsection (3) of the Section also allows for regulations to “override the provisions of any Act or other law – handing the Attorney General power to change any law he, or the Government, wishes.

“The bill literally hands the Attorney General the power by regulation to change any of those laws and… literally not just change those laws but potentially change any law on the statute books by regulation.” David Shoebridge, the Greens Justice spokesperson, said during the debate.

Similar concerns have been raised across other portfolios, with the NSW Government accused of using the COVID-19 emergency to fast-track a spate of controversial development applications.

COVID-19 Conquers Democracy

Even if used appropriately, it remains a concern that Parliament was so willing to grant these powers in the first place – and relinquish its role in holding the Executive branch of government to account.

Other parliamentary democracies dealing with outbreaks of COVID-19, including France, Spain, the UK and US, have all continued to sit and scrutinise government legislation – and digital measures exist that would allow the Parliament to meet remotely if needed.

“I for one believe strongly that the coronavirus should not be allowed to conquer democracy itself. No Minister should have open-ended and extensive powers of this nature,” Mark Latham, One Nation MLC, said.

The bill contains some checks and balances as to when the Attorney General can exercise these powers – stating that the changes can only be used to address the health crisis, and that they must be consistent with the advice of the health Minister or the Chief Health Officer.

It also states that Parliament must not be sitting, or likely to be sitting, within two weeks of when a change is made – something that’s unlikely to occur until September.

Lastly, most of the provisions are also time limited, with any changes made by regulation during the crisis to be repealed within 12 months.

Even so, that’s a low-bar, a long time, and a poor guarantee.

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Written By Kieran Adair

Kieran Adair is a reporter for Xenophon Davis, covering government accountability, civil liberties, and whistleblower trials. He has previously written for the Michael West, Guardian Australia, and Sydney Criminal Lawyers. Twitter: @kieranadair_

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