Policy: Delegated legislation

Adopted at the 2021 AGM

For the rest of the COVID-19 pandemic, and in a future crisis, the NSW and Commonwealth parliaments ensure that our system of crisis law-making is fit for purpose, including by:

  • embedding human rights scrutiny into all emergency responses, including through the operation of a charter of human rights;
  • subjecting all delegated legislative crisis powers to legislative tests for likely effectiveness, necessity, and proportionality;
  • eliminating the presence of poor regulation-making practices such as Henry VIII clauses or ‘skeleton legislation’ in crisis legislation;
  • mandating that changes to the law that seriously affect our core civil and human rights are enacted in primary legislation; 
  • ensuring that all delegated legislation is subject to disallowance, or where in the most exceptional circumstances an exemption is warranted, ensuring that such delegated legislation does not contain Henry VIII clauses and is subject to a sunset period;
  • ensuring that emergency periods cannot be extended indefinitely without parliamentary approval;
  • providing a merits review avenue with open standing for crisis delegated legislation;
  • resolving that parliament should continue sitting, even during emergencies, in order to provide its scrutiny and supervisory functions over delegated legislation;
  • providing transparency around decision-making bodies such as the National Cabinet;
  • ensuring that ordinary scrutiny mechanisms resume as soon as reasonably practicable;
  • actively exercising disallowance powers when available and necessary;
  • strengthening the ability of parliamentary committees to review delegated legislation.

The NSW and Commonwealth governments should:

  • draft crisis delegated legislation for clarity and precision rather than in sparse and general terms which leave citizens and authorities on their own to interpret;
  • limit the discretion of police under crisis delegated legislation that effectively creates criminal offences;
  • ensure that crisis delegated legislation is widely accessible and available;
  • endeavour to avoid crisis delegated legislation that is highly unstable.

Background and rationale:

The use of delegated legislation1 in the context of the COVID-19 pandemic has exploded. This is not just about quantity; delegated legislation has intruded into our lives more than ever before, regulating a plethora of activities, answering significant questions of policy, effectively creating serious offences and having a significant impact on individual rights and liberties. For the rest of our lives, we will probably all remember the days when we were not allowed to sing or dance in entertainment venues, leave our country, or even leave our residence without a reasonable excuse.

Many of the most important changes in NSW have been introduced through Public Health Orders made by the Minister for Health under extremely broad powers under section 7 of the Public Health Act 2010 (NSW). While the States and Territories have been the primary managers of the pandemic response, and therefore the major sources of intrusive regulations, the legal architecture underpinning the Commonwealth response to the pandemic (section 477 of the Biosecurity Act 2015 (Cth)) is similar.

Delegated legislation has for many years been a major source of legislation, and the modern state depends on it.2 NSWCCL acknowledges that there are advantages in using delegated legislation. It may be especially convenient to use delegated legislation for highly technical and expert legislation or for rapidly changing or uncertain situations. Yet convenience does not trump high principle. There has been too little scrutiny, too little accountability, and too much power concentrated in too few hands.

The changes for which NSWCCL calls should be implemented as soon as possible for the duration of the pandemic and in future crises. They are based on our fundamental commitments to three concepts, or perhaps more accurately, bundles of concepts: civil liberties/human rights, democracy and the rule of law (all of which may be interconnected). From our commitment to civil liberties/human rights we deduce that law-making in a crisis cannot infringe our hard-won rights without serious scrutiny and public justification as to suitability, necessity and proportionality. From our commitment to democracy we deduce that insofar as possible, the elected parliament, subject to the Constitution, is best placed to make our laws. Parliament has a responsibility, not lightly to be abdicated, to play the role of lawmaker-in-chief, and to exercise scrutiny over the government constitutionally accountable to it. This is connected to our third commitment, broadly speaking, the principle that the Executive must be restrained by and subject to the law, otherwise known as the rule of law.

  1. I note that there is some debate about whether the Public Health Orders issued in NSW by the Minister for Health under section 7 of the Public Health Act 2010 (NSW) are actually delegated legislation, but for convenience I assume that they are for the purposes of this motion.
  2. Ibid.