In today’s blog we take a look at the public health orders related to the COVID-19 pandemic and the role of the Legislative Council in scrutinising ‘delegated legislation’…
What is delegated legislation?
Delegated legislation, also known as ‘subordinate legislation’, is legislation made by the executive government rather than by Parliament, under the authority of an Act. For a useful backgrounder on delegated legislation, check out this blog post from back in 2019.
While a bill must pass through both Houses of Parliament and receive Royal Assent, a Minister can make a rule or regulation relatively quickly, and it can come into force immediately. This flexibility means delegated legislation can be particularly important in emergency situations, such as the COVID-19 pandemic.
Delegated legislation to respond to COVID-19
The sheer volume of rules, regulations and other instruments created over the past two years demonstrates the importance of delegated legislation in regulating different aspects of the pandemic. Last year, the NSW Government made 52 different regulations related to COVID-19 and the Health Minister, under the authority of the Public Health Act 2010, made 79 public health orders.
These regulations and public health orders have regulated things including which premises can be open and who has to stay at home, as well as authorising government agencies to collect and disclose personal and health information. Many of these orders were made while Parliament was shut due to the lockdown.
Parliamentary scrutiny of delegated legislation
While Parliament delegates some law-making powers to the executive government, there are still various avenues for Parliament to scrutinise delegated legislation. Generally, delegated legislation must be tabled in Parliament and can be considered by the Legislation Review Committee – a joint committee involving members of both Houses. The Legislative Council’s Regulation Committee can also inquire into any particular piece of delegated legislation and make recommendations to government.
Most regulations, and many other forms of delegated legislation, are also subject to ‘disallowance’. Disallowance refers to the power of either House of Parliament to cancel delegated legislation it I does not support. You can read more about disallowance in this blog post (an oldie but a goodie, also from 2019).
Are the public health orders disallowable?
Not all delegated legislation is disallowable by Parliament. While the regulations relating to COVID-19 are disallowable, the public health orders are not. This is because public health orders don’t fall within the definition of statutory instruments disallowable under the Interpretation Act 1987, and there is no provision for them to be disallowed within the substantive Act under which they are made, which is the Public Health Act 2010.
Figuring out whether a piece of delegated legislation is disallowable or not can be tricky. It depends on what type of instrument it is and on certain provisions in different pieces of legislation. But don’t worry, the Procedure Office has done the hard work for you! Each month (and more regularly when the House is sitting), the Procedure Office publishes a Statutory Rules and Instruments paper listing all recently-made disallowable instruments. Under the Interpretation Act 1987, once a statutory instrument is tabled, a member has 15 sitting days to give notice to disallow it. To assist members, the paper notes the last sitting day on which notice for disallowance can be given. You can find the Statutory Rules and Instruments papers on the Parliament’s website here.
Should the public health orders be disallowable?
The delegation of legislative power to the executive government raises questions concerning the separation of powers and potential executive overreach – especially if the instruments created by the executive aren’t subject to disallowance. This issue was recently considered by the Regulation Committee when it examined the arguments for or against disallowance in relation to another type of instrument: a SEPP. A SEPP, or state environmental planning policy, is a regulatory document made by the Governor under the Environmental Planning and Assessment Act 1979. SEPPs cannot be disallowed by Parliament and the committee examined whether they should be.
Some stakeholders argued that disallowance is important to preserve the role of Parliament as ‘lawmaker-in-chief’ and to ensure Parliament can act if something is not working the way it should. Others, however, argued that disallowance is a ‘blunt instrument’, as it strikes out the entirety of the rule or regulation.
While the committee’s report, released in August, did not recommend that SEPPs be made disallowable, committee Chair the Hon Mick Veitch MLC highlighted that there should be more discussion around whether certain instruments that currently aren’t disallowable should be.