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 GABRIELLE APPLEBY AND BRENDAN GOGARTY

Tasmania has been in a declared ‘public health emergency’ since 17 March 2020. Since that time democratic scrutiny of the government’s response has been minimal, especially following the initial declaration. Parliament was adjourned a week later, recalled for only one day to extend the powers of the government, and the executive is regulating the crisis through delegated instruments that significantly limit civil rights and freedoms.

At the time of the adjournment, the government gave assurances to parliamentarians that the Subordinate Legislation Committee (the Committee) would scrutinise executive power throughout the crisis. For the most part, this has not been the case. The government has relied on delegated instruments made under older legislation which are not explicitly required to be subject to parliamentary review and scrutiny, either within that legislation or in the state’s somewhat outmoded subordinate legislation framework. This has generated uncertainty and confusion as to the legal scope of the Committee’s powers to review these instruments.

In this post, we explain the assumptions that were made and assurances that were given prior to the adjournment of the Tasmanian Parliament, and why these assurances have not been realised. Despite this, we explain that the Subordinate Legislation Committee not only has the legal power to undertake review of the government’s actions, but that it should do so – not least because this gives effect to a fundamental constitutional safeguard at a time when it is the only mechanism capable of injecting democratic oversight.

Assumptions and assurances during the COVID-19 emergency

In late March 2020 the Tasmanian government tabled emergency legislation designed to respond to the looming crisis that was unfolding as a result of the COVID-19 global pandemic. The legislation was passed through both houses in a marathon debate before the entire Parliament was adjourned – at that point for six months (although it has subsequently been recalled for special business). The long recess, and the wide-ranging executive powers in the bill that would become the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (Tas) (the COVID-19 Act) were argued to be justified by the nature and substance of the threat posed by the disease. The government also assured the Parliament that the powers would not be misused and would ultimately be subject to Parliamentary scrutiny.  Debate in both houses consistently identified these assurances as the basis for the Parliament to pass the COVID-19 Act so quickly. Indeed, to avoid doubt, this assurance was achieved by inserting an express statement that the notices made under that Act were subject to oversight by the Subordinate Legislation Committee (see s 7(4)).

In the Legislative Council, Rob Valentine provided a succinct summary of the parliamentary debate:

[We] expect that the Government will act in good faith and not try to take advantage of the powers we are providing them in this particular bill.  … I appreciate the Subordinate Legislation Committee has the degree of power we heard about … That is where good faith comes in.

What has actually happened is that the government has relied on older powers to issue Declarations and Directions in the Public Health Act 1997 (Tas) and the Emergency Management Act 2006 (Tas). Because of outdated terminology used in the Subordinate Legislation Committee Act 1969 (Tas), there is confusion as to whether these instruments fall within the remit of the Committee which, according to the 1969 Act, has an oversight function with respect to ‘regulations’ (s 8). At 20 May 2020 (the time of writing), none of these instruments made by the Tasmanian government in response to COVID-19 have been subject to review by the Committee, which appears reluctant to assert its powers during a time of crisis when there is some uncertainty as to the scope of its jurisdiction.

The Legal Position of the Subordinate Legislation Committee

The Subordinate Legislation Committee in Tasmania was established in 1969 to oversee the use of delegated legislation in the state. The Subordinate Legislation Committee Act establishes its jurisdiction over ‘regulations’, and defines them in s 2 as:

a regulation, rule, or by-law that is made under an Act and is required by law to be laid before both Houses of Parliament, but does not include rules of court made by the judges, or by a majority of them, under the authority of an Act.

It is clear from this definition that the term ‘regulation’ in the context of the Act is expansive and inclusive. That is, it defines regulation in reference to itself and includes different forms of delegated instrument beyond ‘regulations’ in their strict form, that is, only those made by the Governor. There is ambiguity then as to whether it extends to other forms of delegated instruments. Below, we explain why it should be interpreted to include a range of subordinate legislative instruments that have the capacity to operate in a manner that affect rights and liberties so as to benefit from the scrutiny of the Committee.

The Tasmanian Parliament passed the Subordinate Legislation Committee Act in 1969, at a time when the Australian practice was to use ‘regulations’ as the preferred term to describe all delegated instruments made under enactment (see Parliamentary Paper 271 of 1974 at 12, and Papers on Parliament No 15 at 72). Thus, in 1969, the Parliament was probably assuming it was catching all delegated instruments within the oversight remit of the newly-formed Committee. This, indeed, is reflected in the title of the Act and the Committee.

It is also consistent with the statements that were made at the time the Committee was established. The Second Reading Speech explains that the purpose of the Bill was to respond to the increase in:

[R]egulations [that] have the force of law … but [which], in the main escape the critical scrutiny of Parliament, and so, in the absence of some such statutory authority as the Committee here proposed, by the, perhaps unavoidable, but certainly wide-spread, use of the regulation making power, Parliamentary government is replaced by bureaucracy.

Demonstrating its commitment to reviewing delegated instruments to ensure democratic accountability, the Tasmanian government proposed the Subordinate Legislation Committee be given the power to suspend the operation of part, or the entirety, of delegated legislation when the Parliament was not sitting. The Premier explained that this would provide:

a much needed safeguard to the rights of the individual, at present endangered during a long Parliamentary recess.

While it was true, when the Subordinate Legislation Committee was established, that Australia had not experienced the ‘proliferation of different types of [delegated] instruments as […] in some countries’ this situation had, by the 1990s, ‘changed dramatically’ (Papers on Parliament No 15 at 21).  In response, some jurisdictions have replaced references to the form of delegated instrument in their scrutiny frameworks with legislative tests that consider the form, nature and effect of the instrument, instead of references to “regulations” (see eg, Legislation Act 2003 (Cth), s 8(4)). Tasmania has not yet followed this lead.

The state’s one attempt to modernise its subordinate legislation regime in the early 1990s – with the introduction of the Subordinate Legislation Bill 1992 – proposed a system mandating that all bodies which made legislative instruments prepare regulatory impact statements and obtain certification from parliamentary counsel before such instruments were placed before the Subordinate Legislation Committee. Opposition to these reforms led to a series of amendments that limited the application of that system under the resulting Act to specific types of subordinate legislation (s 3): either regulations ‘made by the Governor’ or under the Governor’s authority, or legislative instruments that are ‘declared by the Treasurer’ to be subordinate legislation for the purpose of that Act. This narrower definition does not, however, restrain or limit the definition of regulation in the Subordinate Legislation Committee Act. Indeed, this narrower definition, when read together with that in the Subordinate Legislation Committee Act, reinforces that the latter is intended to capture a wider set of delegated instruments, and not those formally and traditionally described as ‘regulations’.

Emergency Declarations and Directions under Div 2 of the Public Health Act

Under s 14(1) of the Public Health Act, the Director of Public Health may ‘declare that a public health emergency exists if satisfied that the situation requires it’. Following amendment to the Act in April 2020, declarations relating to COVID-19 last for up to 12 weeks, after which they may be re-declared in the same terms. Pursuant to a declaration under s 14, the Director may issue directions under s 16 of the Act, to:

(a) manage a threat to public health or a likely threat to public health; or
(b) quarantine or isolate persons in any area; or
(c) evacuate any persons from any area; or
(d) prevent or permit access to any area; or
(e) control the movement of any vehicle.

These directions have the force of law and are enforceable by a fine not exceeding 100 penalty units (currently $168,000), or imprisonment for a term not exceeding six months, or both (s 16(3)).

Since the declaration of a public health emergency in relation to COVID-19, s 16 directions have been used to require that all Tasmanians stay in their homes with limited exceptions for essential acts, prohibit gatherings, ‘lock down’ hospitalsand aged care facilities to all visitors other than frontline staff, and quarantine classes of people and entire regions of the state.

The concept of a direction captures a wide range of instruments with different regulatory impacts. These range from short-lived orders limited to a specific threat, person or class of people with limited application – for instance a police direction to move on, to supplemental regulatory protocols within a confined jurisdiction – for instance, practice directions issued by a court. If our argument with respect to the jurisdiction of the Subordinate Legislation Committee is accepted, it is the nature of the direction – its character, operation and effect – that will be determinative of whether it is an instrument of a legislative character that invokes the jurisdiction of the Committee, and not the name that it is given in the regulatory scheme.

COVID-19 Public Health Directions (and the s 14 Declarations they are made under) are clearly the form of delegated legislation that the Subordinate Legislation Committee was established to scrutinise. Sections 14 and 16 of the Public Health Act invest the executive with a wide regulatory power over the state, for potentially significant periods of time, should the situation require it. Directions issued under s 16 have the force of law and the core characteristics of legislative power. Indeed, they have wide-ranging impacts on the entire system of law and government in the state. They also significantly limit the human rights and freedoms of the entire Tasmanian population.

Conclusion

The present confusion around the supervisory jurisdiction of the Subordinate Legislation Committee over some of the most wide-ranging delegated emergency powers the state has seen has meant it is not living up to its purpose and promise. This is due in very large part to a lack of development in the state’s subordinate legislation scrutiny framework to ensure that it keeps pace with contemporary developments and diversity in delegated legislation. The failure to regularly review the mandates of scrutiny mechanisms heralds a much wider warning. Scrutiny mechanisms must often perform their most important work in times of urgency and where there are intense political pressures at play. In times of emergency, these mechanisms are greatly assisted if there are clear and broad statutory statements of their mandate, so their functions are not undermined by debate over the scope of their jurisdiction. Thus, the Tasmanian Committee’s current predicament should be viewed by all jurisdictions as a reminder of the importance of regular review and updating in this sphere (on the need for clear and broad statutory mandates for integrity, including scrutiny, institutions, see further here).

While modernising law reform would certainly assist the Subordinate Legislation Committee to be more decisive in exercising its supervisory powers – and should be seriously considered when Parliament reconvenes – the present circumstances do not permit this, at least in a timely way. In the interim, there is a strong legal argument that the Committee’s jurisdiction extends to oversight of the Public Health Act Declarations and Directions. Against the background of the constitutional importance of the Committee’s functions, particularly now, during a time of emergency and parliamentary adjournment, we implore the Committee to commence this scrutiny.

You can read the full paper from which this post draws here: ‘The Role of the Tasmanian Subordinate Legislation Committee During the COVID-19 Emergency’

At the time of writing, current state of emergency statutory instruments are published on the government COVID-19 website. For a summary of the frequently updated regulations as they apply to the public in different spheres, see the University of Tasmania blog post ‘Living, leisure and work during the COVID-19 public health emergency’.

Dr Gabrielle Appleby is a Professor at UNSW Law. Brendan Gogarty is Director of Clinical Practice and Education at the University of Tasmania and Acting Director of the Tasmania Law Reform Institute.

Suggested citation: Gabrielle Appleby and Brendan Gogarty, ‘Tasmania’s Subordinate Legislation Committee fails to provide democratic accountability during the COVID-19 emergency’ on AUSPUBLAW (22 May 2020) <https://auspublaw.org/2020/05/tasmanias-subordinate-legislation-committee-fails-to-provide-democratic-accountability-during-the-covid-19-emergency>