COVID-19 sparks significant change in the way Australia makes law COVID-19 sparks significant change in the way Australia makes law 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? And will this seeming proliferation of new legislative instruments impact Government’s pre-pandemic focus areas of legal reform and deregulation?

• The COVID-19 pandemic has demonstrated the law’s capacity to quickly and flexibly adapt to the needs of Government, industry and civil society. However, this is as a result of bipartisan agreement to remove certain elements of the Parliamentary scrutiny process, and is a temporary measure only.
• Whilst the pandemic may have necessarily halted some previously announced legislative and regulatory change initiatives, it has also served to illustrate priority areas for reform, such as where laws have not kept pace with technological advances.
• Government’s Deregulation Taskforce, established in 2019, now assumes an increasingly important role, with Government identifying deregulation as essential to post-pandemic recovery.
• As Australia begins its long, unpredictable road back to ‘business as usual’, it will be necessary to re-prioritise and adjust the legislative and regulatory agenda to:
  • review laws introduced during COVID-19 to establish their post-pandemic necessity;
  • re-commit to pursue items on the deregulation agenda that were deferred as a consequence of COVID-19; and
  • ‘future-proof’ existing legislation and regulations, by addressing barriers identified as a result of COVID-19.

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 unforseen events.
• 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”.⁵

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.

These examples demonstrate the capacity for delegated legislation to provide a timely, flexible response to the critical, yet highly unpredictable circumstances imposed by the pandemic. However, they also represent a substantial suite of law that has bypassed the standard Parliamentary scrutiny processes, and conflicts with standard regulation-making norms. With the Parliament’s usually extensive legislative drafting process cut short, the laws’ alignment with the Government’s deregulation agenda is difficult to guarantee.

Australia’s road to deregulation commenced in 2013, with the introduction of the Abbott Government’s ‘Deregulation Agenda’. Focused on removing inefficient regulation through reducing administrative obligations and streamlining laws, the Government established a $1 billion target reduction in ‘red-tape’ costs per year.² In July 2019, the Deregulation Taskforce was established within the Department of the Treasury to pursue his Government’s ambitious deregulation agenda. The Taskforce aims to:

“… develop and recommend solutions to lower the costs of regulation while retaining the benefits, making it easier for businesses to invest, create jobs and grow the economy.”³

At the onset of the pandemic, much of Government’s planned deregulation agenda was deferred or reprioritised. For example, planned regulatory reform in the financial sector (a response to the Financial Services Royal Commission of 2019) has been postponed.⁴

However, the pandemic has only enhanced the importance of this legislative and regulatory reform objective. Whilst the magnitude of the health and economic challenges imposed by COVID-19 are not yet fully known, this has prompted the Government to zero in on deregulation as a means of stimulating economic growth. In a sign of the central role it will play in the roadmap to recovery, on 19 June 2020, the Prime Minister announced the Deregulation Taskforce would be transferred to the Department of Prime Minister and Cabinet.5 This clearly signals a whole-of-government approach to the prosecution of regulatory and legislative policy.

High on its agenda will be identifying laws that have fallen behind as technology has advanced. Prime Minister Morrison stated:

“COVID has shown our laws have not kept pace with digital technology when it comes to business communications – for example, by requiring businesses to use paper for storing information, instead of using electronic delivery or adopting new technologies like blockchain. These laws are ripe for modernisation.”⁶

The Federal Government has confirmed its deregulation agenda as an ongoing priority, and continues to advocate for its unrivalled economic benefits.

“Successful deregulation has increased competition and economic efficiency, raising productivity and, ultimately, supporting jobs and wages,” said Prime Minister Morrison.⁶

This deregulation agenda will rely upon Government’s ability to make laws that are fit for purpose, future-proof, flexible and responsive. As the pandemic crisis subsides and Australia commences its long road to recovery, it is likely the truncated approach to law-making evident during COVID-19 times will be phased out and pre-pandemic parliamentary scrutiny processes will be reinstated.

Australia’s political and legal systems are built on a foundation of comprehensive checks and balance. The challenge ahead lies in retaining some degree of the law-making flexibility displayed during COVID-19, without compromising the ongoing integrity of the rule of law. Such flexibility would be best directed into a legislative and regulatory reform agenda capable of facilitating Australia’s post-pandemic economic recovery.

The task of ensuring that alignment with the deregulation agenda remains a considered step in the future of law-making will involve:

• Undertaking a review of laws introduced during COVID-19 to determine their necessity in the pandemic’s aftermath.
• ‘Future-proofing’ existing legislation and regulations, by addressing areas for improvement or modernisation identified as a result of COVID-19.
• Pursuing existing items on the deregulation agenda postponed as a result of COVID-19, including regulatory reform in the financial sector.

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