Retired Northern Territory lawyer Geoff James such as the has been in force during the COVID-19 pandemic.
Retired NT lawyer and academic Geoff James has produced a legal opinion essay giving a detailed look at the Gunner Government’s proposed amendments to the Public and Environmental Health Act, to give the chief health officer two years of unprecedented extraordinary powers for two years following the end of the end of an emergency health declaration. Instead he argues for a pandemic response advisory panel that actually excludes the CHO, and gives the Health Minister the ultimate authority for decisions. As a disclaimer Mr James said he is triple vaccinated with AstraZeneca.
In March I committed some opinions to an essay which enjoyed moderate circulation throughout the community. The essay’s central point was that the NT’s workplace vaccination mandate was not valid law and that a case (colloquially known as the United NT Businesses case) that had been scheduled for hearing in the NT Supreme Court on 19 April 2022 would make a finding to that effect.
However, the bulk of the commentary in the essay, which introduced its central point, focused on the impropriety of autocratic government. Many paragraphs were devoted to protesting the NT Government’s failure, over a period of almost two years, to allow the fully elected Legislative Assembly of the NT to have a democratic vote on the ways and means by which the COVID-19 pandemic should be handled in our jurisdiction.
I wrote about the legal and constitutional history of the English-speaking world, our system of democratic parliamentary government and the mechanisms of the common law by which our judiciary did its best to defend the public from the potential tyranny of one-man-rule.
The substance of the points that I made regarding when the use of one-man-rule in our society would be proper, were:
- On rare occasions, it may be acceptable to vest the power of one-man-rule in a particular minister, or sometimes even in a statutory officer (an elegant way of referring to a public servant).
- To do so, will only be reasonable, and legitimate, if done in order to implement an interim response to an unforeseen major problem in a genuine emergency.
- One-man-rule should only be deployed as a short-term stopgap measure to allow the true lawmakers of our society, our elected legislators, adequate time to mobilise themselves to devise a considered response as to what laws, if any, are appropriate to deal with the issue at hand.
- To deny the elected legislature the opportunity to approve or disapprove of a scheme of laws for the handling of the issue once the element of surprise has passed, is neither reasonable nor legitimate.
Using my best endeavours to express myself in a restrained manner, I developed the theme that for the chief health officer to be ruling the society, and importantly the economy, of the greater Darwin area for approximately two years up until the present, is a major perversion of democracy and a significant infringement of our system of government.
My protest was, and remains, that to do so, is completely counter-cultural.
To borrow a somewhat hackneyed slogan, it’s not who we are!
Such autocracy is grossly contrary to the traditional rights and privileges of English-speaking people living in what passes for a democracy. Advancing this viewpoint, I emphatically urged the executive government of the NT to introduce pandemic regulation legislation into our fully elected Legislative Assembly for passage, amendment or rejection, as the Assembly may resolve, in accordance with our traditional democratic means of making law.
I imagine that my essay on the invalidity of the workplace vaccination mandate was studied in detail by relevant members of the executive government of the NT. I certainly took steps to encourage that. When I learned, on March 24, that the NT Health Minister planned to introduce a bill into the Legislative Assembly for legislation that would revise the content of the Public and Environmental Health Act I was quite hopeful that perhaps our political leaders had listened to reason.
All I was asking was give parliament a chance. It looked as though my plea was to be answered in the affirmative.
Did that go well? Maybe not.
Same autocratic pattern
Government propaganda attempts to disguise the bill as creating a “transitional” period of two years to facilitate management of the aftermath of the pandemic by the CHO. Does “management of the aftermath of the pandemic” fiction stand up to examination in the light of the content of the bill?
I don’t think so. To my dismay, when I found an opportunity to sit down and study the bill, I was very disappointed. The bill proposes to entrench the power of the CHO for a further two years. It is a case of more of the same. To support my cynicism, I will provide a detailed review of the bill.
Critique of the bill
At this point, I will begin a technical review of the bill. In doing so, I give full recognition to the fact that the process will be boring and obscure. However, I ask the reader not to shirk the tiresome task and attempt to follow what I have to say.
If you do not, you will become a voluntary victim of one of the more outrageous, and very common, manoeuvres of public administration – make it so complicated that nobody can be bothered reading it and even if they do, they won’t be able to understand it.
Please don’t fall for that.
Assuming that you won’t, I will now offer my commentary regarding the bill. I will conduct that process by focusing on individual aspects of the proposed legislation starting from the worst, and working my way through to the less problematic contents. I will follow the method which some call a salami job; meaning slice by slice.
In my review of the social controls imposed upon our community by the Public and Environmental Health Act, you might expect me to use the name that the NT government favours for orders given by the CHO which have the force of law. The statute calls them “directions”.
I refuse to call the CHO’s written orders that have the force of law by the name directions. That obscure word is just a public administrative camouflage for the fact that one individual in our society is giving orders in writing which have the force of law and for disobedience of which one may be substantially fined. To me, they are just laws.
Words have consequences. The use of the term direction is a linguistic scaling down of the true significance of the laws made by the CHO. Directions sounds harmless. We’ve all been given directions throughout the course of our life without catastrophic consequences. Directions must be good. In my view, not so much.
I have been around the machinations of the law long enough to know that one of the skills of a lawyer (and the so-called directions are all drafted by lawyers – there can be no doubt that) is to camouflage any threatening possibilities underlying a legal concept, by the use of calming language.
How could one go wrong with a direction? We have all had directions in our lifetime: from our head teacher when we were school pupils; from traffic police and signals; and on the labelling of medicines. Hardly the stuff that could be expected to terminate your working life and plunge you into penury.
But of course, it is. The so-called directions given by the CHO are simply laws. Try breaching one. We’ll soon find out. I believe that the word directions, when used to describe laws made by the CHO is grossly misleading. I will not go so far as to say that was the intent of the minister when she accepted the bill for presentation to the assembly, but I have no doubt that it was the (perhaps hidden) agenda of her advisers.
To give strength and clarity to this point, I intend to refer to the so-called directions, as being laws throughout the whole of this essay.
With great distaste I do find it necessary to use the word “mandate” even though that has the same status. It is a deliberate confusion. I have no doubt that such an unfamiliar term has been adopted (throughout the English-speaking world) as a means of confusing the public.
It has certainly confused quite a few people with whom I have had discussions. They don’t realise that it is a law and that it was made by one man. They don’t realise that their democratic right to enjoy the benefit of government by a panel of elected representatives has been shouldered aside. Most of them merely think, “it came from the government so we’ve got to do it”.
However, as mandate is the generally accepted name for the law that forces people out of the workplace if they decline to accept vaccination, I have no choice but to use it if I wish to maintain clarity.
More of the same
The bill proposes to insert a new division into the Public and Environmental Health Act. That division has a heading Post-emergency powers; Covid-19 pandemic. It contains 11 significant sections to be inserted into the legislation. It is dressed up in language that would encourage the reader to believe that its aim is to regulate life after COVID-19. But that is not the substance.
The new provisions are effectively a repeat and expansion of the current regime. That is, for a period of two years (more later), the CHO is, yet again, empowered to run our community.
Most of that power can be found in proposed new section 57B which I will discuss in detail subsequently.
s.52 lives on
The hearing date of the United NT Businesses case has been changed. It is now set down for June 14. That case is all about the nature and extent of the delegation of lawmaking power conferred on the CHO by existing s.52. The plaintiffs Marii Oblelscuk, Ray Phillips, Conan Hammet and John Anstess, are suing for a declaration that the vaccination mandate is not a valid law for the reason that it exceeds the lawmaking authorisation given to the CHO by s.52.
The executive government of the NT must be very confident about winning the case. The bill was an appropriate opportunity to give parliament a chance, with the assistance of community input, to address the deficits of s.52 and formulate a more humane, and economically sound, approach to living with the accursed plague. But no. There is nothing in the bill that in any way recognises that there could be problems with s.52. The issue is dismissed by a brief reference in s.57B(1) to the effect that during any two year “transitional” period the CHO retains all the same powers that he currently has under s.52.
I use the word any in respect of a possible two year transitional periods because there is no guarantee there ever will be one. There can be no transitional period until the minister stops rolling over the emergency declaration; or until a sufficiently robust critic takes her to court and obtains a ruling that emergencies, in respect of public health, are not an everlasting social management tool.
In other words, the executive government of the NT believes that there is nothing wrong with s.52, nor is there anything wrong with the laws that the CHO has made under that provision. Those laws have caused unemployment to be inflicted on substantial numbers of otherwise industrious, and law-abiding, Territory residents whose only conflict with society was that they considered it to be their privilege to decide what chemicals were to be injected into their bodies.
Nothing wrong with s.52?
I doubt that that is how the court will see the matter. I also believe that the situation will be a major issue at the next election.
Never ending emergency
The first section of the new division, s.57A, indulges in the legislative equivalent of a pea and thimble game. The heading, Post-Emergency Powers gives the reader the impression that the government intends to end the emergency. But a close look at ss.57A (1) makes clear that the prospect remains for the existing emergency to be rolled over regularly for another endless series of 90-day extensions.
The proposed legislation does not guarantee that there will ever be a post period in respect of the emergency because the much-vaunted transitional period of two years does not begin until the executive government relents on its commitment to keep the community in a state of emergency. So long as the original declaration of emergency continues to be rolled over, the two year period does not begin.
The elastic emergency may live on regardless of the fact that some of our reliable, industrious and contributing citizens have been forced into penury; not by the “new normal” but by excessive, indeed extreme, governmental reaction to the situation caused by the accursed plague. Living under such a regime may be digestible to people on the public payroll whose income is guaranteed but it is a disaster for people in the normal workforce.
Political leaders regularly make public statements to the effect that they believe that, “we have kept Territorians safe”. The economic turmoil inflicted on those people who are the victims of the vaccination mania has been brought about by the oppressive application of one man’s view of what is necessary and desirable to keep the community safe.
It is delusional to make the presumption that a person cast into involuntary unemployment has been kept safe. There is more to human welfare than the medical question of how to prevent young strong, healthy living, working people from contracting COVID-19. Many other issues are relevant; not the least of which is economic independence.
The hysterical overreaction of banning unvaccinated workers from their employment, has gone too far and raises the question of who was the single person that made the extreme and oppressive decision to introduce the so-called vaccination mandate? Was it the CHO? Or was the CHO the puppet of another single person?
I am not offering a prize for guessing the answer to that riddle.
Regardless of who made the decision, it is common sense to regard the process as tyranny. No technicalities are needed to recognise the fact that to put people out of work at the stroke of a pen (while retaining one’s own full salary and privileges) is an egregious example of one-man-rule. It is an intolerable abuse of the human rights of the non-compliant members of society.
It should stop.
The proper mechanism to stop it is for the executive government to recognise that it is not acceptable for one person, whether the CHO or the minister, to make laws which make such far-reaching interventions into the life, and economy, of our society. The bill should have been a turning point in our public administration. It would have been the proper time to recognise that some other approach must be found.
But, alas, what the bill offers is more of the same.
Seventeen additional powers
There is an oblique hint in the bill to the effect that the NT government recognises that its existing vaccination mandate laws may “go down” in court. That hint comes to us on an examination of proposed new s.57B. It does what s.52 should have done in the first place. It specifies a long list (17 types) of laws that the CHO will be delegated to make after the bill is passed.
It is the very absence of a sufficiently specific and comprehensive list of types of laws that the original legislation authorised the CHO to make, that is the basis the challenge to the vaccination mandate that has been mounted in the United NT Businesses case. Existing s.52, the provision which the case is challenging, only specifies four law making powers none of which authorise the possibility of forcing people out of the workplace. The 17 new law making powers proposed in new s.57B are the NT government’s soft voiced way of covering its bases.
If the NT government is right about s.52, then the CHO retains the power to run riot with all sorts of laws. If the NT government is wrong about s.52, not to worry all that is fixed in the bill. Oh, and just for good measure, ss.57B (1) preserves whatever efficacy s.52 has in law. So, it is an even two-way bet for the NT government. Heads they win, tails the community loses.
Perhaps not at the next election; people do not appreciate becoming an underclass.
Mandate power survives
In the new division there is a somewhat sneaky, and obscurely worded, law making power which expressly enables the CHO to make a law with the same effect as the so-called vaccination mandate which is currently under challenge in the United NT Businesses case. However, unlike the existing invalid supposed mandate power, this delegation will survive any legal challenge irrespective of the outcome of the case.
That is because after the passage of the bill, this fresh vaccination mandate lawmaking power will be real law. If the bill is passed, it will become unchallengeable law that the CHO can put you out of a job. Having been buried in a proposed law that will be put to parliament for adoption, if the NT Legislative Assembly passes s.57B then it’s back to the future irrespective of what is the decision in the United NT Businesses case.
A compressed, but accurate, version of the text of s.57B (2)(g) is that, directions the CHO may give include directions imposing restrictions or conditions on activities of a person based on (i), whether the person is vaccinated against COVID-19, or (ii) how many COVID-19 vaccine doses the person has received.
This is precisely what is lacking in existing s.52, and which has given rise to the validity challenge raised by the United NT Businesses case. This time, if passed, it will stick.
Regardless of how brave, adventurous or persuasive a lawyer may be, he or she would not win an argument that this provision was invalid if it is enacted by the Legislative Assembly. That is the role of the Legislative Assembly. It is empowered to make laws for the peace order and good government of the Northern Territory. The opinions of lawyers, and for that matter courts, cannot override the sovereign will of our parliament, even if, in the particular case, it is inhumane and oppressive.
So, the mandate power will acquire the property of survival even if its victims do not.
New super mandate
Worse still, the “new and improved” vaccination mandate lawmaking power, proposed for introduction by s.57B (2)(g) goes well beyond the workplace so-called mandate that currently applies. The new version is not limited to workplaces. It authorises, “restrictions or conditions on activities of a person”.
That means any activities and the lawmaking power would extend to a ban on, for example: going shopping but there’s always click and collect or online home delivery; attending coffee shops and restaurants but there’s always take away; attending sporting fixtures but they’re all on TV; attending educational classes but online teaching is superior; attending services at places of worship but there are not many who want to do that anyway; and lots more.
Too bad if the community thinks that such measures are excessive.
The “new and improved” vaccination mandate lawmaking power, proposed for introduction by s.57B (2)(g), is custom-built for the introduction of a vaccine passport. The words “restrictions or conditions” exactly fit the legal formula that would be required to authorise a law to impose on people a requirement for a vaccine passport as a “condition” of, for example, going shopping. You wouldn’t win a legal challenge on that one. If this bill passes, then that’s the ballgame.
Specific people only?
The formula “imposing restrictions or conditions on activities of a person” (in the singular tense) is a skilled subterfuge of language. In parliamentary debates, a member might ask the minister if it is possible for s.57B (2)(g) to apply to more than one person at a time? What would happen if it was used to invoke a workplace vaccination mandate that applies to all workers in a particular sector? Very probably, prompted by advisers who formulated the bill, the minister would answer that the power set out in that provision is directed at individual people. And it is not envisaged that it could be used to justify a direction (in fact a law) that would apply to more than one person at a time.
Such sweet innocence is certainly a neat fit with the language of the power; but don’t be fooled by it. Any lawyer worth his or her salt will tell you that the mechanisms of legal interpretation permit the singular to be interpreted as including the plural. If the CHO chose to issue a direction (in fact a law) that had the same effect as a vaccination mandate and which was expressed to apply, for example, to all persons employed and performing work in hospitality industry, that would be a valid use of the power conferred by s.57B (2)(g). No legal challenge would succeed against it.
The new division’s s57C is custom framed for political bloviating. We will see press releases, television interviews and parliamentary speeches, which contend that the bill contains suitable safeguards in respect of the more significant of the 17 new powers that are given to the CHO. Spokespeople will proudly say that the interests of all members of society have been taken into account. That will be a reference to the fact that nine of the 17 specific powers specified in s.57B, those ranging from ss.57B (2)(f) to ss.57B (2)(i), are restrained by s.57C to some extent.
One part, ss.57C (1), requires that before making any proposed direction in relation to the range of topics between ss.57B (2)(f) and ss.57B (2)(i) (which include a vaccination mandate direction), the CHO must (a) take into account social considerations and economic considerations in addition to public health considerations; and (b) must consult with four ministers regarding the proposed laws (and in some circumstances five ministers). However, ss.57C (2) expressly says that no records of the consultation must be made. lthough ss.57C (3) does require a note of the identity of the minister consulted if the resulting direction is in writing.
Nowhere in the bill is there any provision that makes clear what will be the obligation of the CHO if consultation with any minister results in a negative response. It appears that the CHO remains free to proceed with a proposed direction irrespective of the views of any minister consulted. Naturally, that is unlikely to happen. On receipt of a negative response from a minister, it is far more probable that the CHO would retreat; but there is no guarantee that he or she would.
Social and economic considerations
The very presence of ss.57C (1)(a) which provides that the CHO must take into account social and economic considerations invites one to ask, is this a tacit admission by the NT government, the sponsor of the bill, that there is more to the problem of the pandemic, than issues of health security. Is it a roundabout way of admitting that there is not much mileage in being healthy if you are starving, being evicted from your accommodation and or having your car seized for inability to make the necessary payments?
Irrespective of that question, the requirement of ss.57C (1)(a) that the CHO take into account social and economic considerations must be examined on its merits. Before doing so, I will indulge in some frivolity.
I pose these hypothetical questions:
- Will a wrestler be able to effectively take into account considerations relating to ballet and poetry when engaged in a wrestling match? Probably not.
- Can a butcher prepare his products taking into account considerations relating to vegan sensibilities and the desert cuisine of major restaurants? It is not very likely, is it?
- When repairing a motor vehicle, will a mechanic be able to do that taking into account considerations relating to the sport of competitive walking and the techniques of surf lifesavers? Not so much.
I will restrain myself from continuing the list. The possibilities are endless.
My point is that if you task a medical man with the challenge of combating the accursed plague, there will be a natural inclination toward medical solutions. It is inevitable that a doctor will be more likely to “follow the science” rather than permit his campaign against the virus to be undermined by “social” and or “economic”considerations. He certainly has not so far.
I do not pretend to fully understand what would be the accepted sense of the term “social”. There would be many viewpoints. I expect that a strong majority would consider that terminology to be a reference to the possible impact on group gatherings (sports, entertainment and religious worship). Others might urge that a more relevant sense of social, in the context of the pandemic, would be factors like children’s in-school education, medical care of persons suffering from non-pandemic illnesses and mental health. No doubt, a range of different other formulations might be put forward.
What is my point?
In common with emergency, the concept of social considerations is ill-defined and unclear. There are a number of choices as to what could be a social factor. In basic language, it is ambiguous.
The situation is no different in respect of the terminology economic.
Does that criterion refer to maintaining full employment and current wage levels? Or is it a reference to striving for increased prosperity and the consequent uplift of wage levels? Irrespective of those factors, perhaps it is intended to refer to the impact of the consumer price index; that is, the cost of rents, groceries and fuel? Does it refer to the maintenance of the existing state of economic affairs? Or Is it really another way of saying all of the foregoing factors? If so, is it appropriate to give precedence to one or more of those factors over and above the others?
A similar point emerges. The word economic, in the context of pandemic regulation, offers no clear message. There is no basis upon which we could trust that word to be applied in a common sense manner which we might be beneficial to all.
Priority of considerations
Further, the legislation offers no balancing criteria which allows for an order of priority to be allocated to the so-called considerations. There are no terms of reference which will enable the administering authority to confidently make a choice. Is preference to be given to economic matters? Or do medical matters trump the economy? Similarly, the requirement, in some cases, for consultation with ministers offers no roadmap. What occurs if the administering authority disagrees with a relevant minister? On the face of the legislation, the administering authority would be free to pass over the views of the minister.
This is of particular significance given the fact that the legislation does not encourage records of consultation to be kept. Why would that be?
Need for a response?
Everybody knows that the accursed plague is a serious problem for the public administration of the NT. Moreover, rational people will usually concede that the NT government faces many imponderable challenges of public administration. It is a difficult job. That is confirmed by five minutes reflection on the very small numbers of productive members of our community, the disparity of the various interest groups in our community, the extraordinary distances which separate us all, the absence of any genuine economic base and the complexities flowing from the role of chief city in north Australia.
So, it is understandable that the NT government feels inexorable pressure to “keep Territorians safe”.
It is not my privilege to tell the Northern Territory government how to administer this jurisdiction. I would hope however that I’m welcome to offer advice. Even if I am not, I will do so, with constructive intent.
CHO under microscope
Now that we know the nature of the government’s plans, I need to make some observations regarding the officer whom they appear to intend to entrust the job to. The statutory officer whom we call the CHO is the government’s preferred candidate. After reviewing that officer, I will also make some observations in regard to the Health Minister because I want to put a case that administration of these powers would be better in her hands. In doing so, I do not wish to express myself in a critical or disrespectful way. I will do my best to simply recount what I consider to be facts relevant to their suitability to manage our society for the two years from May 2022 until May 2024 (plus possible extensions).
The CHO is an NT public servant of the name Hugh Crosbie Heggie. He is also a medical doctor whose career has occupied a time span of approximately 40 years. He graduated with his medical qualification from the University of Melbourne in 1980. In the years 2008 and 2009, he did an additional medical qualification. Prior to 2002, he spent time as a research pharmacologist. After that, he became a rural general practitioner with skills in obstetrics, emergency medicine and indigenous health.
From 2002, Dr Heggie applied those skills in NT remote settings until he came in from the cold in May 2016 when he got a job in the Health Department headquarters in Darwin. As an NT public servant, Dr Heggie has risen to hold the office of executive director of Public Health and Clinical Excellence in the Health Department. As such, the Health Minister has designated him to be the statutory officer known as CHO.
What is the CHO?
The title is intimidating. A person who does not have administrative, and academic, experience may be likely to conclude that the holder of the title CHO is the foremost medical expert in our community. The logical connotation of the title is that of a medical operator whose knowledge of medicine is significantly elevated over and above the professional knowledge of the many other members of the medical profession in our jurisdiction. The statute designates him chief and thereby suggests that he towers in medical authority, knowledge and expertise over all of the other doctors in the NT.
The reality is not consistent with the image that the title conjures up.
Whatever respect is due to Dr Heggie as a medical professional (and I am confident that would be a significant measure), nothing turns on the title. It is not awarded by competitive examination. It does not reflect a qualitative weighing of the respective merits of all of the members of the medical profession in the NT. It does not establish that the holder of the office CHO is smarter than all of the other doctors in the NT (or elsewhere).
Those of us who understand public administration n Australia, will know that the holder of the office CHO, is merely a public service functionary. CHO is just a statutory title given to a public servant who is available for, and chosen to do, the task of managing the interests of the government in the administration of the Public and Environmental Health Act.
Not many institutions in our society are empowered to grant publicly recognised titles. The power to award anything other than an industry title, is limited to governments, universities, the armed forces and the national honours system. Ordinary people tend to be intimidated by titles. For example, the title “Professor” is usually regarded as proof of scholastic eminence.
But that is only one reason why a title might be assigned. In the case of a statutory office, as for example that of CHO, the purpose of the title is quite different. It is not a recognition of scholastic or professional prominence. It is the governing power’s stamp of its authority conferred on one of its servants. There is no question of the office of CHO being created for the purpose of dominating medical science in the jurisdiction.
The reason we have a person with the title CHO is simply to designate a public servant to undertake the administration and enforcement of the Public and Environmental Health Act. The only prerequisite qualifications to become CHO are to be a public servant holding the rank of chief executive officer and to be a medical practitioner. So, if you are a public service doctor and you climb the organisational ladder to a certain level, you could also be asked to undertake the job of CHO.
Please bear in mind the pedestrian nature of the requisites for appointment to the office of CHO when you later attempt to grapple with the question: Who should exercise the lawmaking powers contemplated by the bill?
Courtesy, respect and a desire to avoid being personal, guide me not to mention the minister’s name. Suffice to say that she is evidently well respected, and liked, by the constituents of her electorate. How else could one explain her winning her seat by a majority of almost 25 per cent. Moreover, as well as the health ministry, she is also responsible for an additional five ministries. It is quite a big job to have six ministries.
Don’t be misled by the temptation to think that the duties of a minister, in an obscure and small jurisdiction such as the NT, are not significantly onerous. That’s a possible school of thought that you will encounter in the southern states where many of our fellow Australians think of us as a “hick” jurisdiction. If the truth be known, by comparison, it is probably harder to perform the duties of a minister in the NT for the reason that our jurisdiction is unusually complex. Moreover, it lacks a tax base which means that it is constantly cash starved.
Make no mistake, to be a minister in the NT is equally as demanding as being a minister in the major jurisdictions such as NSW. Moreover, the duties of this particular minister don’t end there. As a member of the Legislative Assembly, she also has a significant role on the floor of the house. What does this tell us about this woman? It tells me that she is up for it and is the stereotypical personification of the adage, If you want a job done, ask a busy person to do it.
I do not register of my remarks about the minister as gratuitous praise. In common with my remarks regarding the CHO, the purpose of those observations is to give context to the structural scheme of the bill.
Should it be the CHO?
Is it sensible for us to continue to tolerate a social regime where the power of survival (unemployment is a realistic analogy) is vested in one member of the bureaucracy? The government which originally framed the Public and Environmental Health Act, in 2011, was obviously of the opinion that the CHO would be a satisfactory agent to put into effect the requirements of the legislation, but does that proposition hold good in the current circumstances?
Between 2011 and 2020, that legislation was all about mosquito control and similar inconvenient situations. For that entire decade, the minister’s power to declare an emergency was limited to five days. That is because, the legislation was framed as a mechanism to deal with, what I might call, conventional emergencies; for example, unusually intense mosquito infestations or a systemic failure of the sewerage system.
Perhaps, giving a servant of the executive the authority to make laws with respect to mosquito control, or interim sullage disposal, is an acceptable delegation. But the notion of those arrangements being appropriate as a response to an infectious disease pandemic over a duration of at least four years, should be examined.
In an ideal world, the minister’s advisers would have been alert to the extraordinary difference they were creating when the five day emergency period was extended (by a magnitude of 18 times) to 90 days. Moreover they should also have alerted the Minister to the grossly autocratic situation that was being created when the minister’s power to roll over the 90 day emergency became freely and excessively exercised which ultimately became 450 days and counting.
The suitability of the CHO to wield the far reaching power that he has thus far, is not a personal matter. For all I know, he may be a very nice man and well motivated. That is not the issue. The issue is whether he has any skin in the game?. In common with the minister’s advisers, the CHO’s salary and privileges are unaffected by his decisions and their advice. Moreover, those of us who understand the public sector, know full well that the chance of him losing his job through ineffective handling of the pandemic, are negligible. That is not the way of the public sector.
The foundation stone of democracy is the accountability of those who wield power. Such extensive lawmaking powers as are alleged to exist already, and are proposed to be entrenched by the bill, should not be given to an operative who is not accountable. I appeal to the NT government to see reason and withdraw from its inappropriate reliance on a bureaucracy doctor to have, and exercise, the extensive lawmaking powers which the bill proposes.
Should it be the minister?
It would be far preferable for these very significant lawmaking powers to be vested in the minister. That would only be my second preference but I will leave discussion of my first preference to what I have to say under the next heading. Vesting important powers of the type under discussion in the hands of a minister is a traditional, tried and tested formula for exercising a delegated law making power.
Look around at the comparable situations in Australia. The Immigration Minister makes the decision as to who should be deported. The decision is not taken by the permanent head of the Immigration Department. The permanent head, and his legion of assistants, get up a brief of facts and advice for submission to the minister, which goes to the minister who makes the decision.
Some would ask whether, in making the decision, the minister was acting as a rubber stamp for the views of his or her bureaucrats? Certainly not. The very fact that quite often the minister does not accept the advice he or she receives is proof of that point.
Moreover, the other side of the coin is consistent with the independence of the minister. Until very recently, it was a rare thing to hear a minister say words the effect: “I was just following advice”. Since the advent of the pandemic that refrain has been used a few times in some of the other Australian jurisdictions. It is not based on a valid theory of public administration.
In a democracy ministers make the decisions. Their decisions may well be guided by advice but must not be determined by advice. Why? Partly for the simple reason that they were elected to make the decisions. The proper role of the public service is to give advice; not make decisions except in the case of minor administrative decisions.
You might ask, why give a minister the role of making a decision in relation to a topic about which he or she is not an expert? The answer is, for two reasons. The first is that public administration is not about expertise.
If technical know-how was the sole prerequisite for eligibility to govern our community, there would be no need for elections. The whole problem could be sorted out with competitive examinations. We could all live happily ever after ruled over by the best and brightest technocrats churned out by the education system. They would assume public power by virtue of their expertise.
But that is not what we want because those of us with experience of life know full well that experts can often, putting it kindly, get things wrong. Moreover, the regulation of a complex society like ours cannot be reduced to the principles of a single discipline. The role of governance involves the balancing of a range of societal factors in respect of which expert knowledge will often be a vital element but by no means the only matter to be taken into account.
The second reason is that a minister will have skin in the game in the sense that he or she will be accountable through the electoral process.
If she doesn’t do a good job, then the public have access to a measure of recompense. If they are in the position to do so, they might vote her out of office. That is how it has always worked in the Westminster system. For many centuries, that pressure of accountability has been the talisman by which we have been the beneficiaries of, generally, good government and have avoided civil disorders and revolutions.
The public is sophisticated enough to recognise when accountability is absent. If they do, they become resentful and restive. I need say no more.
There is really no need for me to develop this point further. It is very obvious. It is this system that has always worked for us and to which we should return in respect of the future of the Public and Environmental Health Act.
Our government’s legal advisers do not appear to have assisted their ministers, and cabinet, to understand that the model of the CHO having lawmaking powers in respect of mosquito plagues, and similar, is a very rudimentary framework and should not be applied to something as complex as running the whole show for lengthy periods of years.
A better option, a pandemic response advisory panel
If, in the draft bill, any necessary lawmaking function were to be reassigned to the minister, there is a refinement that I believe would be useful. The ultimate discretion to decide one way or the other on any matters of controversy arising out of the pandemic response, should remain with the minister but logic, and good societal practice, indicates that the minister should make her decision on the basis of evidence put forward to, and considered by, an advisory panel.
I have in mind a statutory body to be called the pandemic response advisory panel. My preference for the structure of the PRAP would be that the minister would chair meetings and the other four ministers mentioned in the bill would be ex officio members. That is, those ministers would attend if the subject matter was of significance to the portfolio. Importantly I have some detailed suggestions as to what I would describe as additional community members of the PRAP.
My suggestion would be the following people. The United NT Businesses president, or other nominee. I am specifically thinking of Mario Tsirbas who has been the inspiration of the Supreme court case and demonstrated a very acute understanding of the issues at play.
The second person would be a high level official of the Construction, Forestry, Maritime, Mining and Energy Union. I nominate that organisation because they are the only industrial group in Australia that has offered a critical view of the range of pandemic responses throughout our eight jurisdictions. Other unions have not been heard from. They should have been.
A clergyman, from one of the major religions, nominated by the Council of Churches.
A privately practising medical practitioner nominated by the local chapter of the Australian Medical Association.
The chair of the Darwin chapter of the Australian Institute of chartered accountants.
A social worker nominated by the professional body that represents that sector.
And, a legal practitioner, or retired lawyer, with established expertise in the legal ramifications of our system of government.
CHO not on PRAP
I would recommend that the CHO not be designated as a member of PRAP. I would urge our cabinet to employ the CHO’s knowledge and expertise as a proponent of proposed laws. B
By that I intend to convey the sense that the role of the CHO should be to formulate proposals for pandemic response laws, if any should be required, and put them to the minister presiding over a meeting of PRAP, for her approval. In that respect, the CHO, acting as proponent, would be exposed to questions and viewpoints from all present at the meeting and in particular from the seven community members of PRAP with the minister having the last say.
It is my belief that such a structure would lead to outcomes that are more acceptable to the community.
PRAP not unique
There is nothing unique about my suggestion. The Planning Act is administered through an advisory body comprised of, I think, seven members. That panel labours in detail, for days at a time, about the future use of single pieces of land. In that jurisdiction, the minister has the last say as would be the case with the model that I am proposing.
If we can do all that in respect of some obscure block of land, sometimes in the boondocks, surely we can justify an advisory panel in respect of a jurisdiction that has the potential to cataclysmically affect our entire society. Moreover, following my model the minister would be better informed than could otherwise be expected.
I commend my thoughts to the NT government for acceptance.