It’s a little know fact that Enabling Acts were not a particularly unusual event in early 20th Century Germany. It’s also not widely known that to bring one into existence, it took a successful two-thirds (2/3) majority vote in the Reichstag, currently known as a Super Majority.
This would seem wholly appropriate, given the power that is bestowed upon the applying government. Granted that it appears not to have worked as intended in 1933, however, the theory behind it remains sound. Being a process that is designed to provide extraordinary powers “to respond to emergencies that threaten safety, property or the integrity of the state”, it would not seem difficult or unreasonable to get bipartisan support, and the required two-thirds majority, if it was a genuine emergency of that magnitude.
The Germans recognised the danger of such legislation, and they still do. The Victorian ‘Public Health and Wellbeing Act 2008’, and the associated state of emergency provisions, are every bit as dangerous as the 1933 Enabling Act. Yet, we don’t have the safeguard of the Super Majority necessity for either implementation or extension thereof. I believe that any such powers should have this safeguard built-in.
Upfront, I would say that this is an incredibly dangerous oversight. We have already seen the state of emergency extended beyond its safeguard time limitations, based on the vote of three cross-benchers. These three cross-benchers essentially determine the duration of a dictatorship in this state. It’s conceivable that they may be greased with concessions for their particular agendas, and plied with accommodations that are not necessarily relevant to the emergency, or in the best interests of the public as a whole.
This brings me to a rather concerning development, and one which highlights the necessity of a requirement for a Super Majority provision.
The highlights, or lowlights, more accurately.
“The Andrews government is secretly negotiating with three crossbenchers to introduce specific pandemic laws that would permanently replace controversial state of emergency powers and significantly change the way the state manages COVID-19 this year.
Demands made by the powerful crossbenchers in return for their support include a requirement that police record the racial appearance of people they stop or fine for breaching health directions, and that the government is forced to be more transparent with the information and trigger points behind interventions such as lockdowns. Disadvantaged Victorians would also be exempted or pay reduced fines if found contravening restrictions.
Human rights lawyers and opposition MPs say the sweeping powers, which are usually reserved for short-term disasters such as fires and floods, do not include enough safeguards to enforce proper government accountability and transparency.
The Age can reveal the government is designing the new laws to cover all future pandemics, not just the coronavirus pandemic. It is intended that they will be in place by December, when the current state of emergency provisions expire, and a first draft is expected within the next two months.
The pandemic legislation will be permanently shaped by the demands of three upper-house crossbenchers: Animal Justice Party MP Andy Meddick, Reason Party MP Fiona Patten and Greens leader Samantha Ratnam.
In an unconventional move that has infuriated the Coalition and other crossbenchers, the Health Department is negotiating the new legislation with only Mr Meddick, Ms Patten and the Greens, and has held a series of meetings with them behind closed doors in recent weeks.
“If you didn’t vote for it in March, you didn’t get a seat at the table,” said one source familiar with the discussions.
Strengthening the crossbenchers’ power is the fact that if one were to pull out of negotiations because their demands were not met, the government would be back to square one in its attempts to pass powers that are integral to managing the coronavirus pandemic.”
This is thoroughly dangerous stuff. The ultimate Kingmakers.
Neither this sort of power, nor the ability to continue such tyrannical measures, should reside with one side of Parliament and a couple of crossbenchers. These are extraordinary powers, and they should require extraordinary political agreement…a Super Majority. If a particular emergency truly warrants such powers to safeguard safety or state, it shouldn’t represent a partisan issue and getting 2/3 of Parliament onboard should be a laydown Misere. If they can’t, perhaps it doesn’t require such a heavy hammer, and the provision will have worked as designed.
We live in dangerous times, and things need to change if we find our way through them.