Senate Committee Interim Report - Oversight of emergency-related delegated legislation

Senate committee calls on Parliament and government to remove barriers to oversight of emergency-related delegated legislation

The Senate Standing Committee for the Scrutiny of Delegated Legislation has today tabled the interim report of its ongoing inquiry into the exemption of delegated legislation from parliamentary oversight, repeatedly referencing the NSW Council for Civil Liberties submission.

The interim report makes 18 recommendations to government and the Parliament to address systemic barriers to parliamentary oversight of delegated legislation made in times of emergency.

Our submission and hearings testimony are referenced a number of times in the Interim Report, including the following:

4.36 The New South Wales Council for Civil Liberties also submitted that it was inappropriate to exclude delegated legislation made under the Biosecurity Act from disallowance to separate the measures from political considerations, submitting that the significant civil liberties implications of the Biosecurity Act measures mean their 'formulation and implementation are unavoidably and deeply political questions. 'Taking the politics out' entirely can lead to unaccountable technocratic governance'.

6.34 The New South Wales Council for Civil Liberties agreed that limiting the duration of delegated legislation has an important role to play, particularly in emergency periods, noting that the notion of ‘emergency’ is itself temporally limited by definition. The Council further argued that:

By the end of 3 or even 6 months, the emergency has metamorphosed into a new normal. Therefore, it makes inherent sense that the duration of the emergency and the significant powers accompanying it are ‘sunset’.

6.37 Expanding on this point, the New South Wales Council for Civil Liberties noted that legislative instruments which are made pursuant to Henry VIII clauses should not be exempt from disallowance unless express repeal provisions are included on the face of the primary legislation. The Council expressed particular concern that the duration of instruments made under the Biosecurity Act has been extended on the basis of extensions to the declarations of a human biosecurity emergency, highlighting that 'the time of operation is renewable indefinitely'.

The report and further information about the inquiry are available on the committee's website.

The Senate Committee's media release notes:

'About half of the law of the Commonwealth by volume consists of delegated legislation, rather than Acts of Parliament. Between January and July this year, approximately 20 per cent of the 249 pieces of delegated legislation made in response to COVID‑19 were exempt from disallowance by the Parliament and scrutiny by the committee. This includes all 27 legislative instruments made under the Biosecurity Act 2015, and six instruments which allocated an additional $2.13 billion of public funds to aspects of the government's response to COVID-19.

These exemptions have prevented parliamentarians from scrutinising and, if necessary, vetoing, travel bans on Australian citizens, the declaration and extension of the human biosecurity emergency period, and restrictions on people entering and exiting certain areas within Australia.

As the report explains, the exemptions to parliamentary oversight are due to systemic issues in legislation, procedure and practice, rather than the actions of a particular government or Parliament. 

The committee calls on the current government and Parliament to resolve these systemic barriers to parliamentary oversight, so that elected representatives can properly scrutinise and disallow delegated legislation which restricts personal rights and liberties and overrides other laws in future emergencies.'

Committee Chair, Senator the Honourable Concetta Fierravanti-Wells said:

Governments need to use delegated legislation to act urgently and decisively in response to emergencies, especially when Parliament is not sitting. However, the Parliament must be able to oversee and have ultimate control over these laws, especially when they restrict personal rights and liberties or override primary legislation.

Committee Deputy Chair, Senator the Honourable Kim Carr, said:

This report is an important reminder to parliamentarians to carefully consider any emergency legislation before the Parliament, with special attention to the powers it gives the government to make laws without appropriate parliamentary oversight.