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.
Luke Sayers! Come back and finish the job.
Well said!
The three amigos was a template. I’ll never forget sitting through that weaselly 17 minute justification of perfidy.
They can do what they like now.
Calli
The 3 amigos might benefit from your reminder about the difference between a birthright and a mess of potage.
Neither potage nor postage.
Mater, have you read the Commonwealth Government Department of Health’s Coronavirus Disease 2019 (Covid-19) CDNA National Guidelines for Public Health Units, Version 4.7, 24 June 2021?
I have the 66-page document in front of me and my non-scientific brain has been twitching whilst reading it. Perhaps your good self or others may be able to ascertain if there is anything of interest? One thing I found intriguing was the definition of an ‘historical case.’
I accessed it via here.
Of all the disturbing aspects of this post, the words “secretly negotiating permanent pandemic laws” should be enough to strike fear into the stoutest of hearts.
Mater,
Nice idea, but as they say in the classics no parliament can bind another.
State constitutions are acts of state parliaments, a fact Beatty used to change the Qld constitution ignoring the change mechanisms enumerated in the old. State constitutions then are useless.
Other than rule 303 how do you propose a supermajority is enshrined in law that a politician will actually abide by.
Hey, I’m just a concepts man!
😉
Actually Diogenes, here’s a thought.
Nearly all of the other states of emergency in Victoria are under the authority of Governor in Council, who would be able to apply a Super Majority provision on it.
Clearly the Public Health and Wellbeing Act 2008 of Victoria no longer involves G-in-C, but guess who was Vic Health Minister in 2008 when this replaced the Health Act 1958 (and removed the G-in-C from the process).
That’s right, none other than Dan himself.
Perhaps going back to G-in-C as the initiating authority, might be a start.
This legislation has been repealed.
Health Act 1958 – SECT 123
Power of Governor in Council to proclaim emergency
Fact sheet – States of Emergency Under Victorian Law
Well said, Diogenes.
Just look at how the Human Rights Act or whatever it is called in Victoriastan has been mothballed, after it outlived its usefulness in overturning reasonable actions against protected groups. Yet, for years, it was trumpeted as the best thing since universal suffrage in terms of asserting Victoriastan as a beacon of enlightenment in a stormy dark sea of prejudice and perfidy.
Suddenly, the Act and its spruikers have vanished, and nobody in the allegedly ‘passionate’ human rights lobby has even raised a squeak as their most basic civil rights are blasted into oblivion.
Fucking hypocrites.
Given that Government completely screwed up their COVID response with all the powers that they had, what would more / extended powers result in? A bigger screw up?
The whole basis of needing emergency powers to tackle any issue is that a significant number might disagree with the approach. If you need emergency powers to make a solution work, then there will most certainly be losers through the application of that power.
As a consequence of this I cannot envisage any situation where emergency powers would be required. If they are, then what is being done is almost certainly undemocratic and is detrimental to some of the population.
Clearly the Public Health and Wellbeing Act 2008 of Victoria no longer involves G-in-C, but guess who was Vic Health Minister in 2008 when this replaced the Health Act 1958 (and removed the G-in-C from the process).
That’s right, none other than Dan himself.
If one were paranoid, it might be thought that this has been a plan made over many years.
Let’s hope it’s not only Labor working on the perfidious 3 of the past.
Surely the Greens can’t be too pleased with their Ratnam.