Work safety ban sparks constitutional dispute after COVID-19 fears shut down ACT Legislative Assembly

A constitutional showdown looms after the ACT’s safety watchdog shuts down the territory’s parliamentary hearings, stunning local politicians.

A workplace inspector placed a prohibition notice on the Legislative Assembly after finding it lacked the physical distancing required to prevent the spread of COVID-19.

The notice effectively prevents assembly hearings and committee meetings from going ahead.

The inspector ordered the shut-down on Friday afternoon, although the assembly continued with hearings on Monday morning — in apparent defiance of the notice — before later adjourning.

Assembly Speaker Joy Burch said the decision had “deep constitutional significance”, and threatened to take the matter to the ACT Supreme Court.

In a letter to ACT Work Health and Safety Commissioner Jacqueline Agius, Ms Burch said the timing — which had prevented the estimates committee from scrutinizing budget spending — was “particularly egregious”.

“The terms of the notice are profoundly misconceived as a matter of law, represent a serious threat to the privileges of the assembly, and could quite possibly amount to a contempt of the assembly,” Ms Burch, a Labor MLA, wrote.

“The action taken by you cuts directly across the separation of powers between the legislative and executive arms of government and, on its face, seeks to up-end the exclusive cognition of the assembly to exercise control over its proceedings.”

Joy Burch sits in the Speaker's chair in the ACT Legislative Assembly.
Speaker Joy Burch is at odds with her own government, which is backing its watchdog.(ABC News: Tamara Penniket)

Ms Burch demanded Ms Agius withdraw the notice, but she did not respond before the Speaker’s 10am deadline. Ms Burch now says she will seek legal advice.

But the government responded by backing Ms Agius’s decision, saying the assembly must respect work safety laws.

“All people in the ACT must be safe in their workplaces, with no exceptions,” the spokesman said.

“Everyone has the right to come home safely every day.”

Workplace ban may breach parliamentary privilege

In Westminster systems, parliamentarians enjoy “privileges”, which are immunities from some laws if those laws prevent them from doing their jobs.

In general, courts and government agencies cannot interfere with parliamentary activities.

Elizabeth Lee smiles slightly outside the ACT Legislative Assembly.
Liberal leader Elizabeth Lee says the intervention “raises alarm bells”.(ABC News: Tahlia Roy)

Opposition Leader Elizabeth Lee said the decision to stop assembly hearings was “extraordinary and concerning”.

“This situation is unprecedented and has a significant impact on the important business of estimates hearings, and the ability of members to scrutinize and hold the executive accountable,” Ms Lee said.

“In Australia, we are well served by a democratic system that firmly protects the separation of powers and, when you see this kind of thing happening, it raises alarm bells.”

Fears for public servants prompted legal crisis

The dispute was triggered when estimates committee members said they wanted to question senior public servants face-to-face rather than via video links.

Labor minister Mick Gentleman, who is the manager of government business, said he was worried about Canberra’s high levels of COVID-19 infection, so he invited the safety watchdog to inspect the assembly’s meeting areas.

He said the government could not afford to expose its senior-most staff to the disease, saying he preferred a “hybrid” attendance — face-to-face and via video — at hearings.

A government spokesman told the ABC it was important to receive advice on the risks of having a “large number of senior public servants gathered for prolonged periods of time in confined spaces”.

“The government has always acted to protect the public service and ensure the community has access to the government services it needs,” he said.

The inspector’s shut-down order says at the hearings or meetings can take place until “adequate control measures are implemented … and consultation has been undertaken with all affected workers”.

The order says the assembly must also formally assess and minimize the risks of face-to-face meetings, and provide evidence to the inspector before the assembly can reopen.

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