Scott Ryan (President) Share this | Link to this | Hansard source

With that, I'd like to formally welcome our colleagues who are attending remotely for the first time. Now that the Senate has adopted the rules for remote attendance, rather than go through a series of procedures I simply ask that those attending remotely strictly follow the advice of the chair. Senators will be very familiar with this system, having used it extensively for dozens of committee hearings since April. I'd like to thank officials from the Department of Parliamentary Services for their extensive work over this period, with officials of the Department of the Senate, to ensure that those committee hearings and now this remote attendance can function so smoothly.

Senators, there are several issues I need to address to the Senate now that we have allowed remote participation and commenced this sitting. First, the COVID-safe measures adopted earlier this year regarding chamber operations remain in place. Other measures have been instituted regarding building operations, including recommendations about mask use in certain areas, and I urge senators to familiarise themselves with the statements made by the Speaker and I last Monday and last Friday.

Second, regarding the sittings scheduled for earlier this month, on 18 July I made a statement advising that the sittings scheduled for the weeks of 4 and 11 August would not take place. This followed my receipt of a request to that effect made by Senate leaders representing more than three-quarters of senators. That request reflected the health situation then unfolding in Victoria and advice from the Acting Commonwealth Chief Medical Officer. I wrote to all senators on 20 July confirming my statement.

This is the first time scheduled sittings have been set aside in this way. After seeking advice, I took the view that the principles that had been applied by my predecessors in taking action to delay the commencement of sittings were also relevant here. There are numerous precedents for presidents altering the commencement of sittings in light of extraordinary circumstances or, as occurred on 12 June this year, for reasons connected to the conduct of Senate business. These have occurred with the concurrence of senators, demonstrating the principle that the Senate controls its own meetings.

A key factor in my decision on this occasion was that the request was effectively made on behalf of more than three-quarters of senators so that, if the scheduled sitting had gone ahead, it would not be possible to establish or maintain a quorum. This particular point is critical as, despite different arrangements in the other place occasionally attracting disproportionate attention, it remains the case that the government cannot unilaterally cancel a sitting of the Senate. In my view, this high threshold of such action being taken only when a quorum would not be possible protects the autonomy of the Senate to determine its own meetings. I table the statement and the health advice.

Finally, in my statement of 6 August, when announcements were made specifically impacting senators and members from Victoria, I flagged that, when we next met, I would raise the issue of the effective controls on the movement of senators undertaking parliamentary business in the Senate. Let me say at the outset: this should not be seen in any way as a criticism of health officials with whom I, and many others, have worked over this period. I would like to express my personal and professional thanks to them for the assistance they have provided to senators and officials during this challenging time. A very difficult situation, dealing with the unique work of senators, has been made more manageable by their professionalism and understanding. I would particularly like to thank the officials in the ACT and Commonwealth health departments with whom a number of us have worked very closely.

However, these controls on movement raise, and occasionally challenge, an important principle, and I feel a responsibility to bring this directly to the Senate. It does not necessarily need to be addressed immediately, but to let it pass without mention risks a precedent being established through simple inertia or acceptance. The restrictions on movements currently in place under various state and territory health orders due to the COVID-19 pandemic are now clearly impacting the ability of senators to undertake parliamentary work and even, in some cases, attend parliamentary proceedings.

Earlier this year, there was an order in place in South Australia that affected South Australian senators by imposing requirements for quarantine upon their return from the sitting of parliament. This directly impacted the ability of parliamentarians and office holders to undertake their work—in some cases, directly related to parliamentary proceedings. This was imposed by officials of the government of South Australia—that is, the executive. As part of our ongoing work to resolve this, legal advice was sought, but the issue was resolved after productive informal discussions without the need for the Speaker and myself to formally intervene.

The recent announcement that, as a condition of attending parliament, Victorian parliamentarians and, in some cases, their families will be required to undergo a period of quarantine and testing represented a new imposition—notably, one I am not aware has any precedent at the Commonwealth level. Again, this was an imposition of the executive—in this case, at both the Commonwealth and ACT levels.

We have now seen officials of the executives of two states, Queensland and Tasmania, effectively impose new quarantine requirements upon senators returning from a sitting of parliament through the removal of exemptions or classifications previously in place. The Western Australian government has also removed a broad based exemption applying to members of the Commonwealth parliament, although placing less onerous restrictions on returning parliamentarians than Queensland or Tasmania imposed. These quarantine requirements do not prevent travel to attend a subsequent sitting of parliament, but they do restrict various other activities parliamentarians may undertake.

I also table the letter I received from the    Queensland Chief Health Officer which I circulated to senators last week and copies of the letters sent by the Tasmanian State Controller to senators for Tasmania, and the Western Australian State of Emergency Coordinator to senators for Western Australia, both of which had been forwarded to me. These letters outline the changed arrangements for senators from those states.

These are not normal times. We have both imposed and accepted controls placed on citizens that are unique in our own lifetimes. So many of our fellow Australians have had to find new ways to work. But, even in my home town of Melbourne, under stage 4 lockdown at the moment, it is accepted that some people must travel to work. There is an element of the work of parliament and parliamentarians that is unique and cannot entirely be replicated remotely. While some elements of this can now be addressed through remote attendance and participation, at this stage, that is a limited facility in that a vote cannot be exercised, and, surely, exercising a vote is a key and fundamental element of participating as a member of parliament.

The right of those elected to attend and participate in parliament is an ancient one. For good reason the ability of others, including the executive, to restrict this has always been limited. The powers and immunities that enable and secure the work of the two Commonwealth houses belong to the houses themselves by constitutional design—a design which ensures that the Senate, in particular, can undertake its functions with an appropriate degree of independence. The ability to scrutinise the executive and participate in legislative activity is unarguably even more critical in times of crisis due to the extraordinary powers being delegated, granted and exercised by officials and the executive.

In the current pandemic, an important principle is at stake: notably, the ability of the executive or its officers, no matter the jurisdiction, to control attendance at parliament or constrain the work of members of parliament when it's directly related to parliamentary proceedings. A further complicating factor is the claimed ability, in some cases, to use discretion to determine which senators or members are allowed to attend parliament or have burdens placed upon them. In the case of the ACT, permits were granted to ministers to attend events prior to the sitting of parliament, but the attendance of senators and members to a session of parliament on the same basis was denied and claimed to be prohibited.

In the case of Tasmania, the correspondence from the State Controller outlines consideration of exemption from the quarantine requirements on a case-by-case basis. This claimed discretion is particularly problematic on the grounds of differential treatment of members of the executive in the first instance and lack of transparency around the equality of treatment of senators in the second instance. The explanation that the medical risk posed by the entry of a single minister is lower and therefore allowable as opposed to a group attending an actual session of parliament is a circular one with a dangerous consequence in that it establishes a preference for members of the executive attending events not directly related to parliamentary proceedings but then effectively claims the power to control or prohibit parliamentarians' attendance at actual parliamentary proceedings.

Unilateral action by executives—whether Commonwealth, state or territory—that impede the performance of Commonwealth parliamentary functions are problematic from a constitutional perspective. This remains the case even where, as is the case with border restrictions and quarantine requirements imposed at a state and territory level, that action is founded on or in aid of genuine public health advice and goals. However, these problems may be largely avoided where the requisite action, in this case a response to the public health advice, is developed cooperatively by the institutions concerned.

The approach taken during this public health crisis will doubtless set precedents that will be looked to in the future. We all know and, indeed, support the public health messages that outline the need for caution, as this pandemic will likely be with us for some time, but the national parliament is a critical part of government, which we are relying on through various agencies and experts to manage our response and care for the health and interests of our fellow Australians. In my view, simple acquiescence to these new assertions of control by officials of the executive of the Commonwealth, state or territories—including, somewhat extraordinarily, the territory established as the seat of government that we are constitutionally required to assemble in—poses a risk in that we cannot envisage how it may be used, or potentially even misused, at a future time in circumstances we cannot imagine. I doubt any of us imagined the current circumstances only a year ago.

Principles not defended in difficult times are in effect mere customs or conveniences. As I said earlier, this issue does not need to be addressed immediately, but, in my view as your President, I must bring this issue to your attention so as not to inadvertently allow a precedent to be established by default. I lay the matter before the Senate for its consideration at a time of its choosing.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I rise to speak briefly in relation to your statement. I start at the outset by indicating that we appreciate that you have taken your responsibilities in this office as encompassing some guardianship of this institution, and we respect and value that. We endorse, in particular, the point you make:

The ability to scrutinise the executive and participate in legislative activity is unarguably even more critical in times of crisis due to the extraordinary powers being delegated, granted and exercised by officials and the executive.

Put simply, parliamentary democracy needs a parliament. It's not an optional extra.

Ceding untrammelled power to the executive is not who we are, and it's also risky. So I place on record our disappointment and concern as to some of how we have got here and, in particular, the way in which Mr Morrison sidelined a working group which was working towards resolving how it would be that this parliament could meet safely. As you might recall, the presiding officers, government and opposition managers of business and chief medical officers were meeting to ensure this was done collaboratively, and, regrettably, the Prime Minister unilaterally commissioned advice and sidelined the working group.

The parliament and the executive are separate institutions, and we each have a separate and unique responsibility within our system of government. The executive ought not and cannot interfere with the parliament. Given this, and in light of your statement, the opposition invites the presiding officers to consider for the purposes of future sittings the merit of obtaining independent medical advice to enable the parliament to do its job, and we again reiterate that the Procedure Committee process, by which aspects of the parliament for remote attendance has been agreed, demonstrates the capacity of this parliament to act collaboratively in response to that advice. As I said, Mr President, we thank you for your statement and again acknowledge your guardianship of this institution at these times.

Scott Ryan (President) Share this | Link to this | Hansard source

Thank you, senators. If no-one else is seeking the call, we will move on.