COVID-19 sparks significant change in the way Australia makes law

Few areas of Australian society have been spared the effects of COVID-19. Changes to our economy, social interactions, places of work and education are apparent and, at times, unmistakeable. However, many may not realise the significant impact of the global pandemic on another critical but sometimes overlooked sphere – law-making.

The increased risks associated with congregating in groups and interstate travel have resulted in the postponement of many Federal Parliamentary sitting periods. Yet, almost daily, government announces and quickly implements new measures which, in ordinary times, would require legislation to enact. So, how is this occurring?

The Executive, the Judiciary and the Senate Standing Committee?

The writers of Australia’s Constitution never contemplated how the process of law-making should work during a global pandemic. In March 2020, with the pandemic crisis unfolding and rapidly evolving, Federal Parliament passed legislation which provided the executive (Ministers) with power to issue delegated legislation, as necessary, to rapidly respond to COVID-19. Without the typical parliamentary oversight involving rigorous house debate and disallowance repeals, the Senate Standing Committee for the Scrutiny of Delegated Legislation stepped in. The Committee has been regularly (virtually) meeting during this period “…to ensure appropriate parliamentary oversight of all delegated legislation, particularly executive-made laws which implement COVID-19 response measures.”1

The legislative process, usually weeks or months in length, was not designed to contemplate the rapid turnarounds demanded by a pandemic environment – where legislative responses are required within days to address health and financial imperatives. Streamlining the typical legislative process has enabled Government to swiftly respond to a community in need. Key examples include:

  • Swiftly enacting legislation for an $85 billion financial support package, which also provided the Minister for Social Services with the power to change stimulus rates by determination;
  • Issuing an ‘advance’ of $40 billion to the Minister for Finance, which can be spent from 1 July 2020, without parliamentary approval, on unforeseen events; and
  • Declaring a ‘human biosecurity emergency’ under the Biosecurity Act 2015 (Cth), meaning that determinations made by the Minister for Health are not disallowable by Parliament.

Prime Minister Scott Morrison identified this flexibility as a critical element of his Government’s response to COVID-19. Prime Minister Morrison stated: “This crisis has shown what can be achieved when regulators are pragmatic and responsive, solving problems without compromising safeguards”.

Law-making during COVID-19 shows the potential efficiencies that can be achieved by reducing parliamentary scrutiny. However, it has largely foregone the checks and balances that our political system is founded upon. Now, the key challenge for government is striking the right balance between retaining flexibility, whilst ensuring that appropriate legislative and other safeguards, scrutiny and oversight are in place.

To read more, including observations on what this means for Government’s deregulation agenda, please visit COVID-19 sparks significant change in the way Australia makes law

This article was prepared with the assistance of consultants D’arcy Pierce and Harriet Wilson.

References

  1. Parliament of Australia, Scrutiny of COVID-19 instruments
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