This is one of a special series of posts exploring the public law implications of the COVID-19 pandemic. For more information on the Gilbert + Tobin Centre’s work in the area of public law and public health, see here.

BY ANDREW EDGAR

In a disturbingly short period of time the coronavirus crisis has disrupted most aspects of Australian life – the economy, social and cultural activities, education, and transport. It is now also becoming clear that it is affecting law-making norms and principles. As they have in other periods of crisis, particularly the two world wars, regulations seem likely to become the primary form of legislative law. In terms of quantity, regulations have been the primary form of legislation for many years. The new development in the face of the coronavirus crisis is that rather than regulations being understood to be limited to the regulatory micro-politics associated with implementing the technical legal details of a statutory scheme, they are becoming the legal form for implementing major social changes with substantial economic impacts, albeit in the short term.

This post aims to highlight the law-making techniques used in the last two weeks to deal with coronavirus issues. We will all be aware of the political announcements of restrictions on our social and working lives. My intention is to highlight the legal techniques used to implement the decisions that underpin the announcements and to explain how they clash with norms that in normal times legitimise regulation-making. I do not want to criticise the policies that underpin the laws that I focus on. The laws seem to be genuine exercises of existing statutory powers to deal with an undoubted crisis. Instead our current experience of exceptional circumstances provides an opportunity to re-state general regulation-making systems and to examine the laws made when the basic features of those systems do not apply.

I do this by examining the Commonwealth and NSW public health Acts that grant the powers to make the regulations and orders that have implemented the policy announcements. I limit the post to those jurisdictions primarily for convenience, as they are the two jurisdictions I am most familiar with. I encourage others to do a similar analysis for other jurisdictions. If the coronavirus period drags on for months with Parliaments being adjourned (the Commonwealth Parliament, for example, will be for adjourned for a period of nearly five months), public law scholars can play an important role in providing transparency and offering constructive criticism of the regulations that are made. The AUSPUBLAW blog seems the ideal repository for such scholarship.

There is a general institutional and procedural system that structures regulation-making in Westminster parliamentary systems. It emerged from a conflict starting in the 1920s in the United Kingdom in reaction to the recognition of increased reliance on regulations as a form of law. Lord Hewart of Bury famously referred to the inclusion of regulation-making powers in Acts as a conspiracy by administrative drafters of legislation that was accepted by a complacent Parliament (p 17). He regarded it as a continuation of World War I emergency lawmaking after that war had ended. The alternative position, taken by Cecil Carr (p 19) and John Willis (p 12), was that the increase of such powers, and the high quantity of regulations made under them, was due to the expansion of the franchise and the development of the welfare state in the mid-nineteenth century, over half a century prior to World War I. For these scholars, the reliance on regulations was an inevitable feature of law in the welfare state due to the increased need for expertise and technical detail.

The institutional and procedural system that legitimises regulation-making in Westminster parliamentary systems was developed by the Donoughmore Committee in 1932 in response to Lord Hewart’s concerns. Broad regulation-making powers were regarded by the Donoughmore Committee as legitimate when the following safeguards are operative (p 61-69):

  • Parliamentary committees scrutinising bills for the inclusion of overly-broad regulation-making powers,
  • Parliamentary committees scrutinising regulations,
  • statutory provisions requiring public consultation, and
  • judicial review.

The Parliamentary scrutiny committees were developed in the UK Parliament and Australian Parliaments in the twentieth century. Statutory public consultation provisions have waxed and waned in the United Kingdom and Australia since then but even without legal status public consultation is recognised as relatively common in practice and when it occurs supports the legitimacy of regulations. This institutional and procedural system is underpinned by the recognition that broad delegations of regulation-making power are inevitable and legitimate so long as the Donoughmore Committee’s recommended safeguards are in place to ensure a degree of public participation, escalation of problematic Bills and regulations to Parliament, and review by the courts. It is now supplemented by requirements to provide explanatory statements for regulations and to make them available to the public on legislation websites.

What are the primary features of the laws implementing coronavirus restrictions on Australian life? Since the Commonwealth Parliament was adjourned on Monday 23 March, the Commonwealth has made regulations in relation to economic measures, social security, and public health. I focus on the public health regulations as they provide for the restrictions on social life in the recent announcements. These regulations were made under the human biosecurity provisions of the Biosecurity Act 2015 (Cth). These enabling provisions are, as would be expected, very broad. Section 475 enables the Governor-General to declare that a “human biosecurity emergency exists”. That declaration was made on 18 March 2020 and it is in force for the full period allowable under the Act, which is three months (s 475(4)(b)). The Act provides a power to extend the period (s 476).

The regulations made subsequent to this declaration were made by the Minister for Health under s 477 of the Act, which enables the Minister to “determine emergency requirements during [a] human biosecurity emergency period”. That provision includes features that conflict with the regulation-making norms just described. The determinations made under that power are not disallowable by Parliament (s 477(2)) and are stated to apply “despite any provision of any other Australian law” (s 477(5)). That provision makes s 477 a form of ‘Henry VIII provision’ (i.e. delegated legislation that amends or prevails over primary legislation). While Henry VIII provisions are relatively common and (reluctantly) accepted, making regulations not disallowable conflicts with regulation-making norms. It is also worth noting that non-compliance with the Minister’s determination is a criminal offence with penalties including imprisonment (Biosecurity Act 2015, s 479). On its face, s 477 it provides a very broad power that is not scrutinised by the Commonwealth Senate’s Scrutiny of Delegated Legislation Committee. The check on the power that is relevant is that the determinations cease to apply at the end of the human biosecurity emergency period, which is three months.

These provisions clearly establish a system that conflicts with general regulation-making norms. But by how much? The overriding of all Australian law, including Acts, is quite breathtaking. However, the non-disallowable nature of the determinations is not quite as significant in the current crisis as may be first thought. The Commonwealth Parliament has adjourned for five months, so unless it is recalled in that period no regulations can be disallowed according to the general provisions of the Legislation Act 2003 (Cth) (s 42). The more pressing difficulty with non-disallowance for the Minister’s determinations is that it removes the Senate Scrutiny of Delegation Legislation Committee’s review authority. That means that when the biosecurity determinations fail to comply with the Committee’s criteria (which seems likely) the Committee will not be able to enter into correspondence with the Minister and Departmental officials questioning problematic provisions.

As at 27 March 2020 (the time of writing), the Minister had made four determinations in relation to the coronavirus crisis:

The overseas travel ban Determination is of most interest due to its legal form and due to it being the subject of an announcement on Tuesday 24 March. Its primary provision prohibits Australian citizens and permanent residents from leaving Australia from midday of 25 March 2020 (s 5).

As would be expected, the Determination includes exemptions. This is where it raises concerns. The second exemption states that “In exceptional circumstances, an APS [Australian Public Service] employee in the Australian Border Force may grant an exemption” to Australian citizens, permanent residents and transport operators when they provide “a compelling reason for needing to leave Australian territory” (s 7). This exemption provision is effectively unconfined. No effort was made to define the decision-maker or the criteria on which they make their decision. No merits review is provided for the exemption decision. In addition to these difficulties, the explanatory statement for the Determination seems to wrongly state that it is not a legislative instrument for the purposes of the Legislation Act 2003 (Cth). The enabling provision in the Biosecurity Act states that such determinations are legislative instruments (s 477(2)). It feels pernickety to point these issues out. But on the other hand, it does highlight what can happen when laws are rushed and the usual checks are not operating.

The NSW statutory powers have similarities to the Commonwealth legislation. The enabling provision for the orders that have restricted social activities in NSW is s 7 of the Public Health Act 2010 (NSW). That section provides the Minister with power to declare parts of NSW to be a “public health risk area” and make directions to reduce public health risks and “segregate or isolate inhabitants of the area”. It requires these orders to be published in the NSW Government Gazette. As they are made by the Minister, they are not statutory rules to which the tabling and disallowance powers and parliamentary scrutiny laws apply. Like the Commonwealth provisions, such orders expire after 90 days (Public Health Act, s 7(5)).

The orders raise different concerns to the Commonwealth determinations discussed above. For one, more of them have been made. It is helpful to set them out as at 27 March 2020:

These orders raise at least two concerns. The first is that one of the orders, the order relating to public gatherings, is highly unstable. The Public Health (COVID-19 Mass Gatherings) Order 2020 was repealed and replaced two days after it was made by the Public Health (COVID-19 Gatherings) Order 2020. That second Order and the Public Health (COVID-19 Places of Social Gathering) Order 2020 were then repealed and replaced by the (Public Health (COVID-19 Gatherings) Order (No 2) 2020. Then that Order was repealed and replaced by the Public Health (COVID-19 Gatherings) Order (No 3) 2020). Such instability could mislead members of public and their lawyers as to the current legal requirements.

The second concern, which may initially seem minor, is that the orders cannot be found on the NSW legislation website using the search tool or by browsing, as they are presented by reference to the date and number of the Gazette rather than the title of the order. This too may seem pernickety but it is problematic when breach of the orders is a criminal offence potentially punishable by imprisonment (Public Health Act, s 10). The problem is ameliorated to an extent by the inclusion of some of the orders on the front page of the NSW legislation website. However, for some time in the last week not all of the orders were provided on the front page and for a short period a repealed order was located there.

Of course, both the instability of these orders and the difficulty in finding them is not surprising. The point I want to make is that they raise concerns about legal certainty. This is particularly important when the law regulates basic social interactions such as the businesses that must not open to the public and limits on public gatherings. Breach of the orders is potentially punishable by imprisonment.

In conclusion, I want to emphasise again that I do not intend to criticise the substance of the laws made at the beginning of this crisis. We should expect laws like these in a health emergency of the scale we are experiencing. Rather, I hope to have highlighted how regulation-making in an emergency period is different to normal times. This is worth examining so that we, current public lawyers, can evaluate the laws that governments make in this period. It is also worthwhile keeping an “in the moment” record to inform public lawyers in the future of what to expect and of the mistakes that are made.

Andrew Edgar is an Associate Professor in the University of Sydney Law School.

Suggested citation: Andrew Edgar, Law-making in a crisis: Commonwealth and NSW coronavirus regulations, on AUSPUBLAW (30 March 2020) <https://auspublaw.org/2020/03/law-making-in-a-crisis:-commonwealth-and-nsw-coronavirus-regulations>