Governing during a State of Disaster

Annie Ward-Ambler and Conan Peterson from the events team at the Progressive Law Network sat down with Professor Eric Windholz to discuss Victoria’s current state of disaster. Eric is a Senior Lecturer and Associate with the Monash Centre for Commercial Law and Regulatory Studies, with a specific research focus on how regulation, public policy and the law intersect to inform regulatory regime design and implementation in the federal system. Here are their reflections.

On Wednesday 12 August 2020, Conan and myself were lucky enough to grab half an hour of Professor Eric Windholz’s time to dissect his latest publishing, ‘Governing in a Pandemic – from Parliamentary Sovereignty to Autocratic Technocracy’. His insights were fascinating.

The phrase ‘autocratic technocracy’ refers to the state of governance we have been experiencing over recent months. The ‘autocratic’ aspect refers to the way in which power is concentrated in a small group of people, some elected and some not. Under the previous state of emergency, the Chief Health Officer was empowered to make declarations which restrict our movement and liberties in substantial ways. In this state of disaster, additional powers are now given to the Police Minister who is now able to effectively override law made by Parliament. The ‘technocracy’ aspect refers to medical and scientific experts and the key role they play in advising government of the steps they must take, and ultimately in determining the constantly changing restrictions on our liberties.

The autocratic technocracy carries many advantages in a health crisis. As governments shift from being reactive to being proactive, the speed and decisiveness with which Parliament acts is critical, particularly with the potentially sudden and extreme changes that can occur within such a short period.

In addition, the alignment of political leaders and medical experts in positions of leadership, namely at that podium day after day, facilitates minimal misunderstandings and miscommunications. The key role played by these experts also ensures that the directions and guidelines that we are told to follow carry legitimacy as well as legality.

Eric touches on pragmatic legitimacy, whereby individuals comply with laws on the ground that it is in their own interest, a key aspect of the messaging campaign around COVID-19. The role of the expert, supported by evidentiary backing, enhances pragmatic legitimacy, as we hear that these directions are beneficial on a purely selfish level.

He also emphasises cognitive legitimacy, the basic assumption that these directions are public health measures and they are made by public health officials, and simply by merit of those two characteristics, they align with our cognitive biases. Resultantly, we follow them. If we consider the instinctiveness with which we trust our own doctors, the trust we now place in people like Professor Sutton, can be conceived of a macro level example of that form of legitimacy.

However, the autocratic technocracy is lacking and imperfect. It bypasses a number of checks and balances that many would consider imperative to the maintenance of our democracy. Eric explained to us how Parliament is replaced by a Parliamentary Committee, which though certainly partially effective, lacks the rigour of regulated draft circulation, comment and amendment. There are risks associated with marginalising the methods of democracy that are well honed to ensure accountability and scrutiny.

In addition, the way the technocracy is currently structured facilitates a near exclusive focus on the medical emergency facing us. The technocracy doesn’t give as much attention to mental health experts, economic experts and family violence experts. The current leadership neglects to acknowledge the severe and long-lasting impacts of this pandemic in the cultural, social and economic realms.

When asked how he’d improve the system of governing we are currently adapting to, Eric acknowledges the benefits of hindsight and his position as a bystander, not actually tasked with making decisions that affect the future of Australia and Australians. He observes however that he would broaden the technocracy to account for a range of expert opinion as to consequences of COVID-19 and its management, and make decisions fully informed about all potential impacts. Additionally, he’d encourage the continuance of parliamentary debate to ensure a functioning democracy. At this point, as we all maintain our fifth month of everything being online, the question does arise as to how our elected representatives chose to disband parliamentary debate altogether, rather than find a virtual solution as everyone else has.  

Written by Annie Ward-Ambler.

If you’d like to listen to the discussion for an in-depth understanding of this topic, the recording is below for your listening pleasure.

If you’d like to watch a video of the discussion, you can do so here.

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