Disrupting Administrative Law in a Public Health Crisis

The coronavirus crisis has affected most aspects of social and economic life in Australia. As the Australian national government has sought to address the emergency, federal administrative law has been disrupted in important ways.

Although some administrative law mechanisms remain intact, such as judicial review of regulations, the ability of the Parliament of Australia to review regulations has dramatically decreased.

Judicial review focuses on whether regulations are consistent with the scope of authority provided in the statute that grants the administrative department or agency authority to make regulations. Aside from judicial review, the other major administrative mechanism in Australia is parliamentary review.

Australian federal departments and agencies can issue regulations according to the rules set forth in the Legislation Act of 2003. This law provides for parliamentary review of regulations in a number of important ways. One method of review is Parliament’s veto power, referred to as “disallowance.” Another is the requirement to provide justification for a regulation, referred to as “explanatory statements.”

Public participation, also referred to as “public consultation,” is recognized as a tool to bolster the legitimacy of particular regulations, but it is not legally required and cannot be enforced through litigation. Parliamentary review and disallowance powers, however, are regarded as fundamental controls on regulation-making.

The parliamentary review features included in the Legislation Act are common in Westminster-model parliamentary systems. These features of regulation-making and review operate quite differently from how the Administrative Procedure Act governs rulemaking in the United States. Westminster-based parliamentary systems are based on “parliamentary legitimacy,” which allows for broad grants of power to administrative agencies coupled with parliamentary supervision, whereas the United States’ system is based on “deliberative legitimacy,” which emphasizes public participation through a notice-and-comment process and judicial review of regulations.

The main disruption to administrative law in Australia during the coronavirus pandemic has been the disabling of parliamentary review and disallowance.

The federal government has adopted regulations under numerous statutes to address the coronavirus crisis. Regulations pursuant to the public health emergency sections of the Biosecurity Act of 2015 have had the most significant impact for administrative law. The public health emergency sections of that law provide public officials with broad authority to delegate regulation-making power.

Under the Biosecurity Act, Australia’s head of the executive branch, Governor-General David Hurley, can declare a “human biosecurity emergency” for a period of up to three months. Governor-General Hurley made that declaration on March 18, 2020. The law then grants the Minister for Health, Greg Hunt, power to “determine emergency requirements during human biosecurity emergency period.”

This declaration is not subject to disallowance under the Legislative Act. The Biosecurity Act expressly disables parliamentary control of regulations when the Governor-General declares a human biosecurity emergency. Furthermore, the public health emergency sections of the Biosecurity Act attempt to invert the hierarchy of legislative laws by enabling health regulations to operate “despite any provision of any other Australian law,” thereby enabling regulations to prevail over primary legislation. Since the Biosecurity Act provides broad power to enact regulations that are not reviewable by Parliament, the only check on this power is that regulations cease to apply when the human biosecurity emergency period ends, which is three months after the Governor-General declares the emergency.

Statutory provisions like those in the Biosecurity Act are commonly referred to as “Henry VIII clauses,” after the sixteenth century English King who had broad powers to legislate by proclamation. It should also be noted that noncompliance with regulations adopted pursuant to the Biosecurity Act is a criminal offense, with penalties that include imprisonment.

The Minister for Health has issued five regulations under the powers contained within the Biosecurity Act. These regulations restrict numerous activities, including banning overseas travel, prohibiting cruise ships from entering ports, restricting access to remote, mainly Aboriginal communities and medical isolation zones, and controlling the prices of health-related goods such as disposable face masks, gloves, and hand sanitizer. The explanatory statements issued for each of these regulations state that no public participation was carried out.

There has been, so far, no judicial review of challenges to these regulations. Consistent with the Biosecurity Act, there has been no parliamentary review either. Given that some of these regulations are poorly drafted, however, they should be subject to parliamentary review.

The use of these regulatory powers during the coronavirus crisis highlights a number of features of regulation-making in Australia’s Westminster-based parliamentary system.

First, it is important to recognize that the Australian Parliament prepared for the emergency prior to the onset of a crisis. In 2015, Parliament passed legislation delegating broad powers to deal with public health emergencies in preparation for crises such as the coronavirus pandemic. Although many of us are likely astonished by the sudden shutdown of social and economic life, Parliament anticipated the need for such restrictions and granted government departments and agencies powers to implement them. As a result, the government needed no new public health powers when the severity of this crisis became apparent.

The regulation-making powers provided in the Biosecurity Act enable the Australian government to respond to the crisis notwithstanding that Parliament is adjourned until August. It is significant that, in authorizing departments and agencies to make emergency regulations, Parliament disabled the parliamentary review mechanisms that serve as a fundamental check on regulation-making in Westminster-model systems.

Second is the relationship between trans-substantive controls on regulation-making and sector-specific controls. The trans-substantive controls in the Legislation Act are best understood as general requirements that can be increased or decreased by sector-specific legislation granting regulation-making powers. This relationship is common in Westminster-model parliamentary systems.

Sector-specific legislation can influence administrative authority by, for example, imposing enforceable public participation provisions or by removing parliamentary review and veto powers. As governments have relatively strong control over legislation in Westminster-model parliamentary systems, they can usually limit or augment checks on regulation-making.

Finally, it is too early to tell whether the Biosecurity Act and the measures implemented to address coronavirus disable administrative law in a comprehensive way. There has not yet been any judicial review of these laws or regulations. In previous times of crisis, such as during the two world wars, the courts provided an important check on broad grants of regulation-making power. In fact, some of the classic Australian cases on judicial review of regulations were decided during these periods. If this crisis drags on for many months, we are likely to see the courts become engaged in review of public health regulations.

Is administrative law really working? Parliamentary review and veto powers, the key controls on regulation-making, have been disabled. The lack of public participation gives the regulations less practical legitimacy, even though it does not affect their legal validity. The courts may be the only check on the Australian government’s use of public health regulations in this crisis.

Andrew Edgar is an associate professor at the University of Sydney Law School.