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Legislation Review Committee

Published on: June 2020

Record: HANSARD-1323879322-110988

Legislation Review Committee

Report: Legislation Review Digest No. 12/57

Debate resumed from 3 June 2020.

Ms FELICITY WILSON (North Shore) (12:51):

:11 As Chair: I address the House on behalf of the Legislation Review Committee. The committee continued to meet to consider legislation during April and May when Parliament was not sitting regularly owing to COVID-19. Videoconferencing was used for this purpose. I thank the members of the committee and the secretariat for the work they put into ensuring that we could continue our scrutiny of bills and regulations before this place during that time. As a result of this, digests Nos 12 to 14 were tabled out of session with the Clerks. Not surprisingly, a lot of the legislation the committee considered in those digests was emergency legislation designed to respond to the health and economic impacts of COVID-19. Given its emergency nature this legislation contained a number of extraordinary provisions and raised a number of issues upon which the committee commented.

I will concentrate on digest No. 12, tabled out of session on 22 April 2020, which considered two bills relating to COVID-19: the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 and the Treasury Legislation Amendment (COVID-19) Bill 2020. One notable aspect of the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 was that it contained a number of Henry VIII clauses. Henry VIII clauses allow the provisions of primary legislation to be overridden by regulation or Executive action. For instance, the bill provided that regulations could be made under a number of Acts within the justice portfolio. They would provide for altered arrangements for criminal proceedings for the purpose of responding to the public health emergency caused by the pandemic. Any such regulations could override the provisions of any Act. Similarly the bill provided that the local government Minister could make regulations to modify the application of the Local Government Act 1993 for the purpose of responding to the public health emergency caused by COVID-19.

In ordinary circumstances those provisions would be an inappropriate delegation of legislative powers. However, where the committee noted them in this extraordinary legislation, it found that in each case they were reasonable measures that allowed a flexible and timely response to the public health emergency. Further, the committee noted various safeguards. For example, in each case the time during which such regulations could be made and the time during which the regulations could last was limited. Similarly the regulations could only be made if Parliament was not sitting and was not likely to sit within two weeks. Given the circumstances the committee made no further comment. The bill contained other extraordinary provisions to respond to the public health emergency, including provisions allowing the local government Minister to postpone council elections and provisions allowing relevant authorities to restrict visitors to correctional centres and youth detention centres.

It also allowed for increased use of audiovisual links to conduct local council meetings, criminal proceedings and certain mental health assessments. Under ordinary circumstances such provisions would impact unduly on various rights such as voting rights, the right to humane treatment in detention, the right to participate in public life, the right to a fair trial, and the rights of people detained in mental health facilities. Again, in each case the committee noted that the provisions were an extraordinary measure to respond to the public health emergency created by COVID-19 and that they were accordingly time-limited. The committee also noted various other safeguards that applied. For example, visitor restrictions at correctional centres would not stop the Ombudsman or the Inspector of Custodial Services from visiting. In the circumstances the committee made no further comment.

The other bill with which digest No. 12 concerned itself was the Treasury Legislation Amendment (COVID-19) Bill 2020, which responded to the economic impacts of COVID-19. The committee found that there were no issues in the bill that warranted its comment. That concludes my remarks on digest No. 12 of this Parliament. I encourage everyone to read the full digest, which is available on the committee's webpage. I also note that during the COVID-19 crisis the committee has compiled all of the reports put together on bills and regulations relating to COVID-19. They are also available on the committee's webpage. I commend the digest to the House.

Report noted.