LSB September 2021 LR

PRESIDENT’S MESSAGE
Emergency powers must not
lead to long-term immunity
from checks & balances
REBECCA SANDFORD, PRESIDENT
Terms like ‘rule of law’ and ‘separation
of powers’ are often thrown around,
but some of us may not have had cause to
think about those concepts in much depth
in our day to day lives after finishing law
school - at least, not until last year. The
pandemic, and the state of emergency
it ushered in, resulted in huge changes
to the way the law affects our lives, and
to executive power being exercised in
previously unanticipated ways.
By way of brief reminder for those
of us whose attendance at legal theory
tutorials may feel like a distant memory,
the separation of powers allows us to
have confidence that in our system of
responsible government, each of the
Parliament, Executive and Judiciary will
balance the power able to be exercised
by each other ‘arm’ of that triad. Our
Members of Parliament are elected to
represent us and make decisions on our
behalf, and if they don’t do that in a way
which is appropriate or responsible, the
consequences may include court action to
strike down invalid laws, or the voting in
of a different representative at the next
possible opportunity.
Ordinarily, decisions which generally
affect the lives and liberties of citizens vest
in the Parliament or in the Government.
Those bodies make use of consultative
processes which can enable adverse
consequences to be identified and
addressed, prior to the implementation
of any new legal regime. The Law Society
plays a role in that process, including
through the making of submissions
and public comment on legal matters.
The decisions made by Government,
and implemented through laws made by
Parliament, are the subject of scrutiny in
a number of respects, including by way of
judicial review.
In emergency situations, it makes
sense to consolidate more of the decision
making power in a central or singular
location, and to remove for a short time
some of the checks and balances that
would otherwise exist to prevent improper
use of that power, recognizing that an
extraordinary situation is at play and
that the exercise of those accountability
processes may prevent the ability of
the Government to deliver support or
assistance, or regulate behaviour, as needed
to keep things functioning despite unusual
circumstances. However, that ordinarily
occurs only for a limited time, and a return
to ‘normal’ processes occurs as promptly
as possible. The pandemic has seen a
number of unprecedented approaches to
the use of executive power, and potentially
demonstrated the need for a refreshed
look at how executive power is managed in
an emergency situation.
In SA, the Parliament was initially
responsible for the creation of the
Emergency Management Act, under
which a state of emergency can be
declared. If that occurs, responsibility
for managing that emergency falls to
the State Coordinator, a position held
by the Commissioner of Police - an
unelected position, but perhaps the one
best suited to coordinate a rapid response
to an emergency. It is via the powers
provided for by that Act and in relation
to that position that the Commissioner
of Police, in the last 18 months, has
issued directions which have required us
to isolate or quarantine, get covid-tested,
check in with QR codes wherever we
go, and restrict attendance at businesses,
weddings, funerals and other gatherings.
It has become apparent, as a result of
the state of emergency declared in SA
last March (and refreshed on a monthly
basis since then) that the current regime
when used in practice actually vests a
significant amount of executive power in
the State Coordinator. I certainly don’t
envy our Commissioner of Police that
responsibility, and whilst the consultative
and collaborative approach taken in
the exercise of that power to date is
commendable, we must still be mindful
that consultation is not required, and it is
a lot of power for any individual to have
- especially one who is appointed, rather
than elected.
The situation in SA is a little different
from that in some other states, where
directions have been issued by Health
Ministers under Public Health Acts.
Some of the steps taken by the Federal
Government have also been unexpected,
including the convening of the ‘National
Cabinet’ - a body whose powers, and
decisions, have started to come under
scrutiny, with the Administrative Appeals
Tribunal recently finding that the body is
not in fact a committee of federal cabinet.
That decision has consequences not
only in the context of the Freedom of
Information matter in which it was made,
but may have broader ramifications on the
impact of decisions made by that body.
Limits on liberties and democratic
principles will generally be accepted as
a short term measure and where they
are reasonable and proportionate, but
all around the country, many are now
beginning to query whether current
approaches to managing public movement
in light of the pandemic are, or are still,
the right ones. Emergency Management
legislation is a useful and necessary
tool, but - as is also the case with other
legislative regimes - it’s appropriate to
regularly check if it is serving its intended
purpose, or indeed, whether its current
use is in accordance with that aim. The
question now being asked by increasingly
more people is at what point should we say
that the situation has stabilized enough for
us move away from a state of ‘emergency’,
and return to a system where proper
scrutiny and accountability is applied to
decisions made by our elected officials,
rather than delegated authorities? B
September 2021 THE BULLETIN 5