Liz Hicks: Private Actors and Executive Power During Times of Crisis: Scrutinising Australia’s National COVID-19 Coordination Commission

The risks times of crisis pose for democracies are long-studied and theorised. True to form, the COVID-19 pandemic has been accompanied by an expansion of executive power in many democracies. In Australia, the prolonged suspension of Parliament and establishment of National Cabinet — and its notable lack of transparency — have been particular causes for concern.

Commentary on the risks entailed by executive expansion tends to focus on the power assumed by the executive itself. Less scholarly attention has been devoted to the role of private actors and their relationship to executive decision-making during the COVID-19 crisis. In this regard, Australia’s National COVID-19 Coordination Commission (NCCC) warrants scrutiny. With regulatory capture increasingly a topic of interest for public lawyers and political theorists alike, the NCCC presents a case study of the particular risks that executive power allied with vested interests poses during times of crisis.

The controversy surrounding the National COVID-19 Coordination Commission

The NCCC is an advisory body to Federal government, operating within the Prime Minister’s portfolio. Established on March 25 at the height of the pandemic, the initial function of the NCCC was to secure supply chains of medical equipment. Its functions later evolved to the provision of advice to Cabinet regarding Australia’s longer-term economic recovery. Controversially, the NCCC lacked terms of reference in its initial stages. These were later introduced in early May — more than a month after it was established and accreted new functions.

The NCCC has attracted controversy for the perception that several of the commissioners — including the NCCC’s Chairman — are affected by conflicts of interest. Many of the commissioners have links to the gas industry and the NCCC has championed gas as central to Australia’s economic recovery. To this end, the NCCC is recommending significant government intervention into, and subsidisation of, the gas industry. An NCCC report leaked to the media in late May recommended taxpayer subsidies and investment in infrastructure to “create the market” for gas. Notably, the report did not address alternatives to gas-driven recovery, the political controversy that would inevitably attend fossil fuel expansion, nor independent analysis that many of Australia’s gas reserves are currently uneconomic. In late May the NCCC’s Chairman stepped down as as deputy chairman of Strike Energy, a gas company, amidst assertions of a conflict of interest.

While industry advice and business expertise has a legitimate role to play in guiding Australia’s economic recovery, commissioners with connections to the gas and fossil fuel industries are overrepresented within the NCCC. Other sectors that constitute a greater percentage of Australia’s GDP lack minimal, if any, representation. Advisory bodies reflecting particular expertise may advise executive departments. The purpose of these bodies, however, is to be representative across a particular policy community.

The problems attended by potential conflicts of interest amongst the commissioners have been compounded by the NCCC’s lack of transparency, legislative underpinning or public oversight. While commissioners must declare conflicts of interest, these declarations are made privately and are not disclosed to the public. Multiple sources have exerted pressure upon the NCCC to publish its conflict of interest declarations, including the Senate Select Committee on COVID-19 and the Centre for Public Integrity. The Department of Prime Minister and Cabinet has defended its decision to refuse to release conflict of interest declarations due to concerns for the commissioners’ privacy. At the time of writing, one commissioner has voluntarily published his declaration.

The NCCC’s lack of transparency obstructs scrutiny by parliamentary mechanisms, such as the Senate Select Committee, that have been established to scrutinise the government’s response to the pandemic. The NCCC’s lack of legislative underpinning and process for independent appointments — features expected of publicly funded agencies — means that the public has very little insight into its reasoning or inner workings. At the same time, the NCCC has accreted significant power in advising the Department of Prime Minister and Cabinet on spending potentially billions of dollars of public money. With a broad remit and an operational budget recently increased to $5 million, the risk of “mission creep” is also very real. Civil society groups, members of parliament and retired judges have expressed concern regarding the NCCC’s lack of proper governance structures. As the Australia Institute has noted, the “rationale for a recovery planning body operating outside of normal democratic and public policy processes remains incredibly unclear”.

Democratic deliberation and the climate crisis

The NCCC’s advocacy for investment in fossil fuel infrastructure introduces an additional dimension to the problems attending its governance structures. The future of Australia’s energy mix is increasingly controversial, particularly in the wake of Australia’s recent bushfire crisis. More than ever, Australia’s response to the climate crisis invites democratic debate and transparency in decision-making. Decisions made now may lock Australia into infrastructure and economic path dependencies for decades to come. An overemphasis on investment in one industry could expose Australia to the risk of stranded assets. Given the nature of the NCCC’s potential conflicts of interests, its role in advising Cabinet on decisions regarding Australia’s longer term energy mix — in the absence of democratic deliberation and public oversight — is all the more problematic.

Taking a broader view than executive power structures alone, crises create conditions where the platforms given to particular policy concerns are temporarily altered and distorted. The risks of executive power expansion attending the COVID-19 crisis must also be considered in this light. With minds focussed on responding to the immediate crisis, less media and public attention is directed towards other pressing political and policy concerns. This is true of the climate crisis, which opened 2020 as a key policy concern in Australia. With political capital, media focus and public attention diverted away from the climate crisis, executive decisions that may impact that crisis risk losing yet another important accountability mechanism. This compounds the risks already entailed within the NCCC’s lack of transparency and proper governance structures.

Conclusion: Contextual scrutiny of executive power expansion

How do agencies such as the NCCC fit within orthodox models of executive expansion? Bodies such as the NCCC elude analysis as ‘classic’ cases. Its commissioners possess expertise relevant to Australia’s economic activity. It is plausible to describe investment decisions concerning Australia’s economic recovery as a measure necessary to avert the worst of the crisis.

The particular risks entailed by the NCCC’s defects — its lack of transparency, the potential conflicts of interests attending its commissioners, the subject-matter of its advice — acquire significance only within its political and economic context. The personal selection of commissioners by the Prime Minister poses a particular risk due to longer-running problems connected with the flow of money and undue influence in Australian democracy. While the NCCC performs an advisory function, that function in turn entrenches practices of decisions being made behind closed doors, with key interest groups having special access.

The NCCC offers lessons to consider when scrutinising the accretion of executive power during moments of crisis. Executive arrangements — including advisory bodies and decision-making structures — must be considered within the broader context in which executive power is wielded and shapes public life in a democracy. In Australia, the relationship between executive decision-making, political parties and regulatory capture remains a challenge for democracy. Such challenges in turn colour the nature of novel advisory bodies and structures created to respond to moments of crisis. And although not immediate, the risks entailed within executive subversion of democratic deliberation reach far beyond than the life of the crisis itself. After all, the political debate attending the climate crisis is one of longer-term cost weighed against short- and medium-term investment. Decisions reached by the executive now may affect the public, and reverberate politically, for decades to come. This makes the case for broader, contextual scrutiny of executive arrangements established during the crisis all the more compelling.

Liz Hicks is a doctoral candidate at Humboldt University of Berlin and the Melbourne Law School, where she is a member of the COVID-19 Research Network.

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