This submission to the Senate Select Committee on COVID-19 was made by Accountability Round table on 27 May 2020.

It addresses the absence of independent scrutiny of government actions during the period of the Covid19 crisis. In particular, the exclusion of parliaments and the absence of judicial scrutiny are matters of concern, particularly as the Commonwealth Parliament meets for shorter periods than any other national legislature in the Western world – and State Parliaments sit for even less.

It calls for the Senate Select Committee to recommend that Parliament arrange for virtual sittings and overcome the indefensible omission to embed alternative means for scrutiny of the executive during a time of crisis.

Further, it calls upon the National COVID 19 Coordination Commission to address a much wider range of functions to mitigate the effects of the pandemic than it currently does, and to address the conflict of interest issues presented by the appointment of its present commissioners.


Senate Select Committee on COVID-19 –  Submission of The Accountability Round Table

In accordance with the Committee’s terms of reference, this submission addresses the Australian Government’s response to the COVID-19 pandemic and related matters.

The Accountability Round Table (ART) is a non-partisan group dedicated to improving standards of accountability, transparency, ethical behaviour and democratic practice in Commonwealth and State/Territory parliaments and governments across Australia.  It is animated by the ideas that governments hold the sovereign power of the people in a ‘public trust’ and that power must be exercised in the interests of the people from whom it is derived. Indeed, the only justification for its exercise is the furtherance of those interests. This, in turn, limits what is lawfully, administratively and ethically allowable to any governmental instrumentality. Consistently with these precepts, the officers of government, whether elected or appointed, are trustees for the people and are therefore accountable to them.

The members of ART have a diverse range of backgrounds, reflecting its non-partisan ethos.  ART has from the beginning included among its members many with extensive experience in parliament and government, such as parliamentarians from major Australian political parties, academics, retired judges, lawyers, former senior public servants and auditors-general.  This diversity enables ART to benefit from the interchange of ideas which that diversity promotes.  At the same time, all ART’s members, from whatever background, share the ideals which ART espouses.

ART acknowledges that Australian governments have approached the extraordinary challenges of the COVID 19 pandemic with admirable dedication.  They have shouldered an enormous workload, have minimised partisanship, and have kept the public informed with messaging which has, in general, been clear and direct. Expertise has been sought and used extensively and publicly (and, while experts will not agree on everything, they will be able to limit the terms of the debate and recognize nonsense).

But all the major decisions were, inevitably, made by executive governments. There was nothing particularly democratic about it.  Indeed, parliaments, both Federal and State, were only peripherally involved, except to wave through massive appropriations to respond to the economic crisis. This was a further striking demonstration of a breakdown in the separation of powers.

The Commonwealth Parliament meets for shorter periods than any other national legislature in the Western world – and State Parliaments sit for even less.  Executive government is increasingly irritated by any intervention by the courts to constrain its authority – and much activity has been specifically excluded from judicial scrutiny.  In the quasi-judicial sphere, the independence and professionalism of tribunals has been compromised by the perception, which is impossible to avoid, that political connections rather than any relevant expertise or experience has dictated both the choice of new appointees and the failure to reappoint members whose only disqualification has been the making of meritorious decisions with which the government disagreed.  There is no national ICAC despite perceptions and reports of corrupt behaviour.  The office of the Australian Information Commission has been effectively abolished.  And the concentration of media ownership, and the closure of local media outlets, has resulted in a serious diminution of the quality of journalism and the ability of the fourth estate to challenge power with truth.  Investigative journalism by the ABC, or by some newspapers, is deeply resented. The role of the public service is being diminished.  This is contrary to the commitments made by Australia when joining the Open Government partnership.

The pandemic has demonstrated that governance can be better than this.  Mistakes were made; but, on any fair assessment, these were fewer and less serious than those of many other nations.  ART agrees with the assessment of Bob McMullan and Sean Ellis that the reaction to the COVID crisis reflects “[d]iligent, honest governments working hard together to define and implement actions focussed on the interests of the people”: Australian Financial Review, 1 May 2020.

These admirable side-effects of a crisis must be preserved.  Easy to say, but difficult to accomplish. As the crisis subsides and eventually recedes altogether, the temptation will be to resume politics as before.  But that would be to utterly waste a crisis-created opportunity. There is a yearning in the Australian public for politicians to articulate policies with clarity and honesty, and to address the great questions of the day with intellectual rigour, with respect for relevant expertise, with regard to facts before ideology, and with respect for difference where difference is based on divergent views which are grounded in fact and honestly held.

Relationships incorporating those qualities have been apparent not only within the National Cabinet but also between its members and the public.  Ministers have given effect to their obligation to be honest; a duty which should which be assumed by all MPs. This will also be the touchstone against which each of the major political parties will be judged.

A principal measure of the Australian Government’s response to the COVID 19 pandemic will be its ability to retain into the post-COVID future the best of its response so far. These admirable side-effects of a crisis must be preserved.  Easy to say, but difficult to accomplish. As the crisis subsides and eventually recedes altogether, the temptation will be to resume politics as before.  But that would be to utterly waste a crisis-created opportunity. There is a yearning in the Australian public for politicians to articulate policies with clarity and honesty, and to address the great questions of the day with intellectual rigour, with respect for relevant expertise, with regard to facts before ideology, and with respect for difference.  A principal measure of the Australian Government’s response to the COVID 19 pandemic will be its ability to preserve into the post-COVID future the best of its response so far.  This will also be the measure against which each of the major political parties will be judged.

The portents are troubling.  The present parliamentary sittings will be the shortest since federation.  There are understandable reasons for this, though those reasons explain neither the failure to arrange for virtual sittings nor the indefensible omission to embed alternative means for scrutiny of the executive.

New Zealand has demonstrated that it can be done.  The Senate Select Committee on COVID 19 has a vital role, but is not equipped to mirror the New Zealand oversight committee, which is chaired by the leader of the opposition.  When the stakes are huge, when public money can be distributed in extraordinary amounts by individual ministers, the likelihood of wasteful expenditure borders upon the inevitable, and the possibility of favoured interests and outright corruption lurks closely behind.  And, as the revelation of the $60 billion JobKeeper blunder illustrates, astonishing mistakes underpinning critical policy decisions will be made.

The Federal Government was forceful in its call for an investigation into the origins of and responses to COVID 19.  It has, by contrast, been at least as forceful in its resistance to any inquiry worthy of the name into the “sports rorts” affair. The lesson is that this government, as with all others, must be subjected to careful, respectful, but rigorous scrutiny.  This is not only necessary for the people whose powers are being used and resources expended, but also for the quality of government decisions, and the success of its policies. Parliament is a democratically designated instrument through which this scrutiny is provided.  When governments reduce sittings to a point where parliamentary scrutiny becomes impossible, powerful alternatives must be found.  The principles of democratic governance demand no less.  Those principles are now being flouted.  In ART’s submission, the Senate Select Committee on COVID 19 should say so in terms which are equal to the importance and urgency of the circumstances.

There is also much that should be said about post-COVID pathways.  The Federal Government has established the National COVID 19 Coordination Commission. Members and staff of the Commission are public officers who have two key roles: to help minimise and mitigate the impact of the COVID-19 on jobs and businesses, and to facilitate the fastest possible recovery of lives and livelihoods.   It will assist the authorities “to unlock resources, break bottlenecks and fix problems so Australian families, businesses and communities are supported in the months [our emphasis] ahead”: see the Commission’s website under the heading: Terms of Reference.

What follows under that heading is not so much terms of reference as a list of “functions”.  That list, moreover, ignores the opportunities which the pandemic has opened for a fresh examination of many issues which its occurrence has highlighted. It appears, rather, to concentrate upon an attempt to recreate the immediate pre-pandemic past; to bounce back rather than to surge forward. We outline some of the issues which are not included in the Commission’s list of functions but which must be considered by a properly constituted advisory body:

  1. Climate Change: the Commission’s terms of reference contain not a word about what must be the absolute priority for governmental action now and in the decades to come: the endeavour to keep global warming within the parameters set by the 2015 Paris Climate Accords. And there are huge opportunities in Australia becoming a renewable energy super power. They must be seized.
  2. Intergenerational equity: the longer-term interests of the young. It is the young who are arguably the least severely impacted by the health, but the most adversely impacted by the economic, consequences of COVID 19.    This was already an issue given high rents and unaffordable housing, the tax breaks for wealthy baby boomers in superannuation and negative gearing, the burgeoning cost of health care, and the burdens of HECS at a time when university degrees will not confer the same comparative advantage.
  3. The impact of the pandemic on women and on the vulnerable. This is of almost equal concern.  There is a need, which notions of social justice cannot but emphasise, to ensure that support during and post-COVID 19 is concentrated towards assisting those upon whom the adverse effects of the pandemic have been most severe.
  4. Tax: The government has recognized the need for spending to preserve confidence and to make it possible for Australians to stay at home. It has also recognized that there will need to be investment and stimulus to reinvigorate the economy and avoid the vicious cycle and debilitating feedback loop of reduced demand, reduced income for providers of goods and services, and reduced employment. These needs will remain unmet, or very insufficiently met, without significant tax reform.

 

The deficiencies in the National COVID 19 Coordination Commission’s list of functions are reinforced by the focus sectors allocated to the Commissioners.  Climate change would have been a natural fit for Commissioner Combet, a former Minister for Climate Change and Energy.  But he is to focus on altogether different issues, albeit ones with which he has much experience.  None of the Commissioners has climate change as a focus sector, and it seems that none has any background in climate science.

Yet another, even more serious, charge can be levied against the Commission.  Its chair, Neville Power, is the Deputy Chairman of Strike Energy Ltd.  That company is, in its own words, an “on-shore gas producer, providing natural gas to support Australia’s transition to a lower-carbon future.”  Mr Power’s focus sectors as chair include mining and resources.

Here, the conflict of interest is profound, and profoundly disturbing.  Strike Energy will, inevitably, seek to move natural gas from transition to permanence in a “lower-carbon” future.  It will argue that a future with zero carbon emissions is not in Australia’s interest, and that gas, while a pollutant, is cleaner than coal. And it will speak directly into Mr Power’s mind and ear.

Each of the propositions which Strike Energy and others in that sector will propound is open to serious and credible challenge.  Experts with impeccable credentials argue a powerful opposing case.  Among their points: first that, while natural gas produces less carbon than coal when consumed, it nevertheless remains a serious emitter of carbon dioxide; secondly, that “transitions” tend to become long-term, if not permanent; and thirdly, that the extraction of natural gas is accompanied by fugitive emissions.  Some experts also contend that the exploitation of natural gas may damage ground water reserves and create other significant problems for agriculture. Moreover, transportation, whether pumped by pipeline or compressed and shipped, consumes massive amounts of energy, further diminishing the purported advantage of natural gas. When all relevant considerations are brought to bear, natural gas competes with coal as a dirty source of energy.

ART need not express an opinion about the correctness of the various positions on these issues.  It is sufficient to say that they are important, and that the debate must not be high- jacked by a commission led by someone with an interest which on its face is demonstrably in conflict with his overriding obligation to provide disinterested advice. This is not to allege that Mr Power will act other than properly as chair; but it puts him and the Commission in an impossibly conflicted position.  Disinterested advice is an absolute necessity if the national interest is to be served.  Whether or not the work of the Commission involves actual bias, it will certainly be affected by apprehended bias.

To this there is only one solution, particularly when other conflicts of interest are considered. ART submits that the National COVID 19 Coordination Commission must be dissolved.  It should be replaced by an advisory body which is impartial and which has as a central aspect of its terms of reference the need to link Australia’s post-COVID recovery with the opportunities which are thereby opened to meet the climate challenge.  It should therefore have among its membership those with, or with ready access to, (i) expertise relevant to a post-COVID 19 world devoted to the elimination of carbon emissions by or before 2050 (with – of central importance – interim reductions fixed so as to ensure that that aim is feasible) and (ii) expertise in all the other areas covered by its terms of reference and the issues covered by those terms.

The appointments should involve a bi-partisan process of the kind initiated by the Queensland National Party in 1989 for senior integrity system appointments (CCC Commissioners, Integrity Commissioner and others). This requires appointments to be made only after they have been endorsed by a majority of a relevant committee in which there is at least one member of the Government and Opposition. ART submits that potential deadlocks be resolved by a process similar to arbitration where government and opposition each nominate equal numbers of Commissioners and those Commissioners choose a chair.

The terms of reference should be discussed with, and preferably agreed by, the Opposition. If there is disagreement, the advisory body should be invited to consider whether they wish to expand their terms.

The advisory body should itself reflect the principles of deliberative, participatory democracy, or be assisted by an entity based upon those principles.  Direct community participation is vital.  It is a key element in Australia’s membership of the Open Government Partnership. Deliberative democracy (known by various names) builds trust between Government and the governed by valuing, capturing and using information and understanding held by affected people and civil society. Standout examples include Ireland’s constitutional reform, France’s recent Le Jour après community consultation, and Melbourne City Council’s People Panel, convened to consider the city’s 10 year financial plan.  ‘Deliberative Polls’ have been conducted in Canberra and Adelaide in which a random (but statistically accurate) cross section of citizens have been brought together to discuss and analyse important issues with the assistance of skilled mediators.  This process identified some unexpected problems, resulting in valuable suggestions about how they could be resolved.

The report of the advisory body which ART has in mind could, and should, represent a seminal moment in Australia’s post-pandemic pathway.  The opportunity is there.  It must be seized.  So much in the structures and practices of Australian governance can be improved.  ART is convinced that the political parties which, and the individual political leaders who, embrace with inner conviction and outward demonstration the need for a seismic transformation in the honesty, candour and respect of political discourse and general behaviour, with policy firmly grounded upon hard evidence and rigorous expertise, and with all political activity informed by an acceptance of the truth that public office is a public trust, will receive the heartfelt approbation of the Australian community.

 

Fiona McLeod AO SC, Chair

The Hon David Harper AM QC

The Hon Dr Barry Jones AC

Professor Spencer Zifcak

The Hon Dr Ken Coghill

Professor Charles Sampford

Dr. Stuart Hamilton, AO