Parliamentary Oversight of COVID-19 Pandemic Laws: Shifting from Emergency Law-Making to Longer-Term Pandemic Powers

Parliamentary Oversight of COVID-19 Pandemic Laws

Shifting from Emergency Law-Making to Longer-Term Pandemic Powers

Sarah Moulds*

* Senior Lecturer in Law (PhD), University of South Australia.

I Introduction

In response to the complex and potentially devastating threat posed by COVID-19, parliaments around the world transferred unprecedented powers to executive governments and their agencies,1 often with the full support of the communities they represent. Many of the COVID-19 powers relied upon in Australian states and territories were derived from emergency management laws designed for very different purposes, such as responding to bush res or oods.2 These laws gave Ministers the power to make declarations of a ‘state of emergency’, conferring signi cant discretionary powers on senior government of cials, such as Commissioners of Police or Chief Health Of cers. When used in the context of the COVID-19 pandemic, these powers take on a different complexion and their scope and duration have extended far beyond what might have previously been contemplated as proportionate and necessary responses to emergency situations. The speci c powers used under these laws — including curfews, travel restrictions and ‘lockdowns’3 — have led to signi cant intrusions into the lives of everyday Australians (both positive and negative) that are still reverberating widely today.4

As the nature of the COVID-19 pandemic evolved from immediate crisis into an ongoing challenge, many Australians began questioning the legitimacy and appropriateness of continuing to maintain legal ‘states of emergency’ whilst they were also being encouraged to return to ‘COVID-normal’.5 While Australian governments responded by allowing their declarations of ‘states of emergency’ to expire, they were also simultaneously amending emergency management laws to preserve some of the signi cant legal powers previously held by executive of cers. Ironically, this was done whilst governments were promising the community more democratic oversight of the way these laws were developed and enforced.6 This article provides a brief glimpse into the extent to which the promise of democratic oversight has been achieved with respect to emergency management laws recently amended in Victoria and South Australia and offers some thoughts on the role that parliamentary committees play in that process.

II Key Features of the COVID-19 Emergency Legal Framework in South

Australia and Victoria

The full range of laws that can be utilised by state and federal governments to respond to an emergency in Australia are far too numerous and complex to outline in this brief article.7 However, it is useful to describe some of the key features of the COVID-19 emergency legal frameworks operating in Victoria and South Australia. For example, in both jurisdictions, government Ministers have been given a power

to make a declaration of a ‘state of emergency’ or a ‘state of disaster’ in response to situations that pose a serious risk to public health. In Victoria, a declaration of a ‘state of emergency’ was made on 16 March 2020, pursuant to the Public Health and Wellbeing Act 2008 (Vic) (‘Public Health and Wellbeing Act’).8 A ‘state of disaster’ was declared some months later under the Emergency Management Act 1986 (Vic), giving police greater power to enforce public health directions.9

In South Australia, a ‘major emergency’ was declared under s 23(1) of the Emergency Management Act 2004 (SA) (‘Emergency Management Act’)10 on 22 March 2020.11 This declaration gave a broad range of powers to the State Emergency Management Committee and the State Coordinator, who was additionally the Commissioner for Police.12 On 9 April 2020, South Australia also enacted the COVID-19 Emergency Response Act 2020 (SA), amending the Emergency Management Act and the South Australian Public Health Act 2011 (SA) (‘SA Public Health Act’), and adding additional temporary and permanent powers to be exercised in response to a major emergency.13

In both jurisdictions, these declarations of a ‘state of emergency’ triggered the use of broad powers by executive of cers (including Chief Health Of cers, Police Commissioners and their delegates) to respond to the public health emergency. For example, these of cers were given the power to:

- detain any person or group for as long as reasonably necessary to eliminate or reduce a serious risk to public health; - restrict the movement of any person within the relevant State; - prevent any person or group from entering the State; and - make any other direction considered reasonably necessary to protect public health.14

In both Victoria and South Australia, the initial declarations of a ‘state of emergency’ were extended multiple times. In Victoria, the relevant legislative provisions at the time made it clear that declarations of emergency could be extended by the Governor every four weeks but were required to be reviewed by Parliament every six months.15 Re ecting the ongoing nature of the COVID-19 pandemic, on 10 March 2021, the Victorian Parliament amended this legal framework via the Public Health and Wellbeing Amendment (State of Emergency Extension) Act 2021 (Vic) to enable longer extensions of the ‘state of emergency’ to be made.16 In October 2021, this framework was again amended by the introduction of the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 (Vic), which is discussed in further detail below. In South Australia, the declaration of a ‘major emergency’ made under the Emergency Management Act could be extended every 14 days, potentially for an unlimited period.17 This occurred more than 26 times before eventually being replaced with the introduction of the South Australian Public Health (COVID-19) Amendment Act 2022 (SA) (‘SA Public Health Amendment Act’) in early 2022.18

III Victorian Experience: Attempt at Improving Safeguards and Oversight with Some Weak Spots

The COVID-19 State of Emergency ended in the state of Victoria on 15 December 2021.19 Prior to this, the Victorian Government introduced amendments to the Public Health and Wellbeing Act to provide a legal framework speci c to pandemics to be contained in a new pt 8A of the Act. This was the rst pandemic speci c legislation enacted in Australia.20 These laws are designed to be used for managing COVID-19 or any future pandemics where the Premier is satis ed on reasonable grounds that a pandemic disease or a disease that has the potential to cause a pandemic poses a serious risk to public health.21

Under the new laws, the Minister for Health can make ‘pandemic orders’ to protect public health. These orders can include things like requiring the use of face masks to stop transmission of a virus, imposing stay at home orders, enforcing limits on public gatherings or public events, restricting entry to and exit from the state of Victoria and limiting entry to aged care facilities and hospitals.22

Many commentators, legal experts and community organisations were critical of the proposed amendments on the grounds that they preserved many of the exceptionally broad executive powers utilised during the COVID-19 pandemic,

but, this time, placed them in the hands of the Minister for Health (rather than the Chief Health Of cer).23 Concerns were also raised that the proposed amendments included insuf cient safeguards to protect against misuse or overuse of power, or disproportionate impacts on the rights of Victorians.24 For example, the following concerns were raised in an ‘Open Letter Against Victoria’s New Pandemic Laws’, which was signed by academics and lawyers and published in The Age newspaper on 29 October 2021:

The content of a pandemic order is unlimited — the minister can make ‘any order’ (s 165AI(1)). The minister is effectively given plenary legislative power. …

These include, among many others, orders requiring detention of persons, restricting movement, regulating public or private gatherings, requiring provision of information and requiring testing and medical examination of persons (s 165AI(2)). …

These directions can target multiple people in certain circumstances, including if the direction ‘relates to a particular activity at a particular location and is given to persons undertaking that activity (including, but not limited to, a direction to restrict movement, require movement or limit entry)’ (s 165BA(4)(b)).

Thus, an individual authorised of cer will single-handedly have the power to shut down a political protest if the of cer subjectively believes that this is ‘reasonably necessary to protect public health’.

These directions are, again, effectively unreviewable.25

The Victorian Government attempted to respond to some of these concerns by including a requirement that the Minister must consult widely before making new directives or imposing new restrictions.26 When making a pandemic order, the Minister for Health must also publish a statement of reasons explaining why the pandemic order was reasonably necessary to protect public health, release the Chief Health Of cer’s advice and publish an assessment of any human rights that are limited by the pandemic orders.27 An Independent Pandemic Management Advisory Committee was also established with the power to review pandemic orders and provide advice to the Minister for Health and Parliament.28

In response to calls from the Human Rights Law Centre and others,29 the Victorian Parliament also set up a special non-government controlled Pandemic Declaration Accountability and Oversight Committee, with the power to recommend that the Victorian Parliament disallow directions that they consider to be without clear and express authority, retrospective in effect, inconsistent with criminal law safeguards, or incompatible with human rights standards.30 However, it is important to note that only Parliament — with its majority of government members — can actually disallow directions made under the Act.31

The amendments also contain speci c protections with respect to any detention ordered in response to a pandemic.32 This includes a process of review by a Detention Appeals Of cer, as well as a right to complain to the Victorian Ombudsman if there are concerns about the lawfulness, duration or conditions of detention.

IV South Australian Experience: Minimalist Model with Limited Committee

Oversight

On 24 May 2022, the South Australian State Coordinator rescinded the Major Emergency Declaration made in relation to the COVID-19 pandemic, and the SA Public Health Amendment Act came into effect.33 The revocation of the Major Emergency Declaration was contingent upon the commencement of this Act.34

However, unlike the Victorian experience, the South Australian amendments did not attempt to set up a new legal framework for responding to pandemics in the future. Rather, the public health amendments aimed to simply preserve or reinstate certain powers previously exercisable by the Commissioner for Police.35 The amendments did not include a multi-stage process of committee review or

other safeguards to ensure oversight of the new legislative powers. In fact, the South Australian provisions did not set out any clear criteria to guide the Minister when issuing new directions or imposing new restrictions and do not appear to be designed to set up a process for dealing with future changes to either the health threat, or the broader socio-economic landscape that might be around the corner. For example, when rst introduced, the South Australian amendments did not include:

- appeal rights for detention; - any clear limits on the scope of key powers; - any human rights related safeguards or a requirement of proportionality in the exercise of executive powers; - a requirement to disclose public disclosure of health advice; or - the establishment of any independent review committee or parliamentary committee to provide oversight on the use of the new powers.36

Following criticism from the Law Society of South Australia, as well as cross bench parliamentarians from the Greens and SA-BEST, the Premier Peter Malinauskas ‘struck a deal’ to enable the amendments to pass.37 Part of the deal was a promise to convene a COVID-19 Direction Accountability and Oversight Committee — comprised primarily of non-government MPs — to provide scrutiny of how the Public Health Act laws are applied.38 The Committee can make recommendations to parliament that laws, directions or new restrictions under the Act be disallowed. Further changes were made to enshrine an appeals mechanism for nes and breaches issued under the Act.39

However, it is important to note that, unlike Victoria, South Australia does not have human rights legislation, and the COVID-19 Direction Accountability and Oversight Committee’s functions do not extend to conducting a review of the rights impacts or proportionality of the directions issued under the new provisions.40 Instead, the Committee is limited to ensuring directions made adhere to the scope of the authorising provisions, do not apply retrospectively and do not reverse criminal burdens of proof. In addition, the Committee’s disallowance and review powers do not apply to a direction that had already been made by the Commissioner of Police under the previous arrangements that ‘continue[s] in force’ thanks to the amending provisions.41 In other words, the COVID-19 rules set out by the Commissioner of Police just prior to the enactment of the amendments continue to apply under the SA Public Health Act without being subject to parliamentary oversight or scrutiny.

V Lessons for Democratic Oversight of Longer-Term Pandemic Powers

These two experiences in the evolution of emergency lawmaking in the face of the COVID-19 pandemic hold important lessons for those interested in rebuilding relationships of trust between lawmakers, law enforcers and community members, particularly when delegating lawmaking power to executive government. They suggest that, while the executive must retain the legal and political power to act decisively in response to the COVID-19 pandemic (and any emergency), the quality of the legislative framework authorising the use of these extraordinary emergency powers is critical to ensuring there are meaningful incentives for decision-makers to focus on proportionality of impact and fairness in process, as well as effectiveness of outcome.

As a starting point, this can be supported by ensuring that parliamentary scrutiny frameworks in all Australian jurisdictions include a prescribed focus on the principle of proportionality when it comes to assessing the validity of directions or directives made under emergency management laws. Proportionality principles have been developed by the Inter-Parliamentary Union, the global organisation of national parliaments. These have been designed to assist parliaments around the world to ‘strike the right balance’ when it comes to responding effectively to emergencies and crisis and adhering to international human rights standards. These principles are:

- proclamation — sets out a clear process for declaring an emergency in legislation that includes not just an assessment by the executive

about the nature of the event, but also the active involvement of the parliament in the rati cation, proclamation or extension of a state of emergency; - communication — explains to the community the nature of the powers being invested in executive agencies and public reporting on their use and their effectiveness in countering the threat posed by the emergency; - temporality — includes a process for ensuring that a state of emergency cannot be extended multiple times or allowed to continue for many months without being subject to parliamentary oversight and review, for example by including sunset clauses or mandating periodic, independent review; and - exceptional threat — requires an ongoing assessment of the nature of the crisis to ensure that emergency powers are invoked only in response to a real and imminent danger to the community.42

Oversight committees — particularly parliamentary committees like those established in Victoria — play an important role in scrutinising laws containing widereaching pandemic powers against these criteria and ensuring that laws made to protect public health do not have a disproportionate impact on individual rights.43 However, in order for these committees to provide effective scrutiny and review of executive power they must have certain minimum key features. These include:

- deliberative capacity,44 including the power and capacity to engage meaningfully with community organisations and individuals; - access to relevant executive agencies,45 as well as the ability to conduct private hearings to provide a ‘safe space’ for members to seek sensitive expert advice from public servants and experts; - independence from the government of the day,46 such as a nongovernment chair or a majority of government members, to ensure scrutiny functions are conducted with rigor rather than lip-service; - a rights-based mandate,47 such as a requirement to consider the extent to which the laws or powers comply with international human rights standards or other rule of law-based criteria; and - disallowance powers,48 which can be invoked to stop a non-compliant direction or directive from commencing.

The Victorian Pandemic Oversight Committee has many of these features although it lacks a direct power of disallowance, which may signi cantly limit its capacity to prevent the operation of directions it considers are disproportionate or rightsabrogating in nature, particularly in the face of a strong government majority within the Parliament. The situation in South Australia is similarly problematic with the COVID-19 Direction Accountability and Oversight Committee also lacking direct disallowance powers. This weakened form of parliamentary oversight is made even worse in South Australia by the lack of human rights legislation or an effective Scrutiny of Acts and Regulations Committee,49 and the lack of safeguards within the Emergency Management Act itself. Unlike the amended Public Health and Wellbeing Act, the South Australian laws generally do not require decision makers to have regard to the impact any emergency directions might have on the rights, dignity or well-being of vulnerable groups within the community, and there are limited public reporting requirements or other oversight mechanisms to guard against misuse or overuse of these powers in future emergency settings.

In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) provides an alternative legal pathway for individuals to challenge the proportionality of emergency directives that impact their human rights. An example of a legal challenge to Victoria’s COVID-19 laws is Loielo v Gilles, 50 wherein Victoria’s tough curfew directions were challenged by small business owners on the grounds that the relevant directions were:

a. not in fact made by the Chief Health Of cer herself, but through the inappropriate direction of the Premier; b. unreasonable, illogical or irrational; and c. contrary to human rights recognised under the Charter.

51 Ginnane J also found that there was an abundance of evidence to support the conclusion that the measures adopted were ‘proportionate’ in their impact on human rights having regard to the speci c advice received by the Chief Health Of cer at that point in the pandemic.52 It was noted that ‘the existence of other options does not mean that there were “less restrictive means reasonably available to achieve the purpose” of protecting public health’.53 However, in making this nding, Ginnane J reminded lawmakers of the importance of strict adherence to the legal principles and safeguards set out in the Charter and Public Health and Wellbeing Act, observing that:

The importance of the person with legal authority not only making the decision, but being seen to make it, is not just a point of procedure. Far more importantly, it is about the legal principle that the person who has the legal authority to exercise extraordinary statutory power in times of emergency, in this case Giles, actually exercises it. When basic human rights such as freedom of movement are being restricted, it is particularly important that legal procedure is followed.54

Thus, the decision still provides a salient warning to governments in that they must take care to:

a. identify the source of legislative power for each decision they make; b. identify the speci c decision-maker who is exercising power in an emergency context; and c. explicitly discharge the burden of demonstrating that a particular limitation is justi ed and, at least in the case of jurisdictions covered by charters of rights or human rights acts, that the relevant decision involved a proper consideration of human rights.55

Taken together, this suggests that Australia still has a long way to go when it comes to ensuring the proportionality of its legal responses to emergencies, including with respect to the COVID-19 pandemic. While the majority of Australians may have been willing to comply with directions and requirements that have infringed their daily freedoms and impacted their livelihoods, it may be unrealistic to expect the same to happen again without greater transparency and independent oversight of the use of such wide-reaching powers. For this reason, the Australian community must continue to call for strong parliamentary oversight of COVID-19 directions — along the lines of the Victorian Pandemic Declaration Accountability and Oversight Committee but with stronger disallowance powers — as well as looking to strengthen other legal tools, including human rights legislation, to enable multiple legal pathways to challenge disproportionate or ineffective laws.56 Both pathways for scrutiny are vital to recalibrate current legal frameworks and to restore public con dence in democratic approaches to pandemic management.

1 In all states and territories except New South Wales, a public health emergency was declared under respective public health acts. Tasmania,

Western Australia and South Australia also declared a ‘state of emergency’ under their respective emergency management acts. New South Wales used general powers provided by the Public Health Act 2010 (NSW). See, eg, Emergencies Act 2004 (ACT); Emergency Management Act 2013 (NT);

Disaster Management Act 2003 (Qld); Emergency Management Act 2004 (SA) (‘Emergency Management Act’); Emergency Management Act 2006 (Tas); Emergency Management Act 2005 (WA). See also Andrew Edgar,

‘Law-Making in a Crisis: Commonwealth and NSW Coronavirus Regulations’,

AUSPUBLAW (Blog Post, 30 March 2020) <https://auspublaw.org/2020/03/ law-making-in-a-crisis-commonwealth-and-nsw-coronavirus-regulations/>. 2 See Holly Mclean and Ben Huf, ‘Emergency Powers, Public Health and COVID19’ (Research Paper No 2, Parliamentary Library and Information Service,

Parliament of Victoria, August 2020) 5–7 <https://www.parliament.vic.gov.au/ publications/research-papers/download/36-research-papers/13962-emergencypowers-public-health-and-covid-19>. 3 See, eg, Emergency Management Act (n 1) s 25; Public Health and Wellbeing

Act 2008 (Vic) ss 199–200 (‘Public Health and Wellbeing Act’). See also Anthony

Gray, ‘Executive Detention in the Time of a Pandemic’ (2020) 27(4) Australian

Journal of Administrative Law 198. 4 These impacts include restrictions on freedom of assembly, interference with privacy rights, denial of migrant worker’s rights, increased threats to the rights of persons with disabilities and limits on the right of women to live free from domestic violence. See UNSW Sydney, ‘Examining the Australian Government’s

Response to COVID-19 and Human Rights’, Australian Human Rights Institute (Web Page) <https://www.humanrights.unsw.edu.au/news/examining-australiangovernments-response-covid-19-and-human-rights>. See also Benjamin

Jones et al, ‘COVID-19 Pandemic: The Impact on Vulnerable Children and

Young People in Australia’ (2020) 56(12) Journal of Paediatrics and Child Health 1851; Jane RW Fisher et al, ‘Mental Health of People in Australia in the First

Month of COVID-19 Restrictions: A National Survey’ (2020) 213(10) Medical

Journal of Australia 458; David Isaacs, Philip N Britton and Anne Preisz, ‘Ethical

Re ections on the COVID-19 Pandemic: The Epidemiology of Panic’ (2020) 56(5) Journal of Paediatrics and Child Health 690. 5 See, eg, Sarah Moulds, ‘Pandemic and Human Rights: Watching over the

Watchdogs’, InDaily (online, 22 April 2020) <https://indaily.com.au/opinion/ 2020/04/22/pandemic-and-human-rights-watching-over-the-watchdogs/>. 6 Sarah Moulds, ‘New COVID Laws a Missed Opportunity to Lock in

Accountability’, InDaily (online, 5 May 2022) <https://indaily.com.au/news/ analysis/2022/05/05/new-covid-laws-a-missed-opportunity-to-lock-inaccountability/> (‘New COVID Laws a Missed Opportunity’). 7 For an overview of current laws and restrictions relating to COVID-19 in each

Australian state and territory, see ‘State and Territory Information’, Australian

Government (Web Page) <https://www.australia.gov.au/states>. For a summary of past COVID-19 laws, see Joseph Lelliott, Andreas Schloenhardt and Ruby

Ioannou, ‘Pandemics, Punishment, and Public Health: COVID-19 and Criminal

Law in Australia’ (2021) 44(1) University of New South Wales Law Journal 167;

Guzyal Hill, John Garrick and Nat Barton, ‘Faultlines of Federation: Australia’s

Intergovernmental Cooperation and Human Rights during the Pandemic’ (2020) 30 Journal of Transnational Law and Policy 119. 8 Public Health and Wellbeing Act (n 3) s 200. See also ‘What Does a State of

Disaster Mean for Human Rights?: Aug 2020’, Victorian Equal Opportunity and Human Rights Commission (Web Page) <https://www.humanrights.vic. gov.au/resources/what-does-a-state-of-disaster-mean-for-human-rights/>;

Premier of Victoria, ‘State of Emergency Declared in Victoria over COVID19’ (Media Release, 16 March 2020) <https://www.premier.vic.gov.au/ state-emergency-declared-victoria-over-covid-19>. 9 Premier of Victoria, ‘Statement on Changes to Melbourne’s Restrictions’ (Media Release, 2 August 2020) <https://www.premier.vic.gov.au/ statement-changes-melbournes-restrictions>. 10 Emergency Management Act (n 1) s 23(1). 11 ‘Emergency Management Act (2004)’ in South Australia, South Australian

Government Gazette, No 13, 2 March 2022, 654 <https://governmentgazette. sa.gov.au/sites/default/ les/public/documents/gazette/2022/March/2022_013. pdf>. 12 Emergency Management Act (n 1) ss 9, 14, 15. 13 COVID-19 Emergency Response Act 2020 (SA) sch 2 pts 1, 5, as enacted. See generally Emergency Management Act (n 1); South Australian Public Health Act 2011 (SA) (‘SA Public Health Act’) ss 199–200. 14 Public Health and Wellbeing Act (n 3) ss 199–200. Similar powers are available under the Emergency Management Act (n 1) s 25. 15 Public Health and Wellbeing Act (n 3) s 198(7), as at 16 March 2020. 16 Public Health and Wellbeing Amendment (State of Emergency Extension) Act 2021 (Vic) s 3, amending Public Health and Wellbeing Act (n 3) s 198(7)(c). 17 Emergency Management Act (n 1) s 23(2). 18 South Australian Public Health (COVID-19) Amendment Act 2022 (SA) pt 2 (‘SA

Public Health Amendment Act’). See also ‘Declaration and Extensions of Major

Emergency Declaration under Emergency Management Act 2004’, Government of South Australia (Web Page, 30 April 2022) <https://www.legislation.sa.gov. au/legislation/CV19/superseded-declarations-of-major-emergency-under-theemergency-management-act-2004>. 19 Premier of Victoria, ‘Implementing Victoria’s New Pandemic Framework’ (Media Release, 10 December 2021) <https://www.premier.vic.gov.au/ implementing-victorias-new-pandemic-framework>. 20 ‘Victoria’s Pandemic Management Framework’, Department of Health (Web Page, 2 September 2022) <https://www.health.vic.gov.au/covid-19/ victorias-pandemic-management-framework>. 21 Public Health and Wellbeing Act (n 3) s 165AB(1). 22 Ibid s 165AI. 23 See, eg, Josh Taylor ‘Victoria’s Pandemic Powers: How Will the New

Laws Work and Why Are They Controversial?’, The Guardian (online, 12

November 2021) <https://www.theguardian.com/australia-news/2021/nov/12/ victorias-pandemic-powers-how-will-the-new-laws-work-and-why-are-theycontroversial>. 24 Ibid. 25 Ross H Gillies et al, ‘An Open Letter against Victoria’s New Pandemic Laws’,

The Age (online, 29 October 2021) <https://www.theage.com.au/politics/ victoria/an-open-letter-against-victoria-s-new-pandemic-laws-20211029p5948y.html>. 26 Public Health and Wellbeing Act (n 3) s 165AE(4). 27 Ibid s 165AG(1). 28 Ibid s 165CE. 29 Human Rights Law Centre, ‘Victoria’s Pandemic Law: New Human Rights and

Accountability Safeguards Welcomed’ (Media Release, 16 November 2021) <https://www.hrlc.org.au/news/2021/11/16/victorias-pandemic-law-newhuman-rights-and-accountability-safeguards-welcomed>. 30 Public Health and Wellbeing Act (n 3) ss 165AS–165AV. 31 Ibid s 165AU. This section sets out the procedure for responding to a recommendation by the Pandemic Declaration Accountability and Oversight

Committee that a direction be disallowed. 32 Ibid ss 165BF, 165BI. 33 ‘COVID-19 Requirements under the Public Health Act’, South Australia

Health (Web Page) <https://www.sahealth.sa.gov.au/wps/wcm/connect/ public+content/sa+health+internet/conditions/infectious+diseases/covid-19/ response/covid-19+requirements+under+the+public+health+act/covid-19+requi rements+under+the+public+health+act>. 34 Moulds, ‘New COVID Laws a Missed Opportunity’ (n 6); Premier of South

Australia, ‘Lifting COVID Emergency Management Declaration’ (Media

Release, 4 May 2022) <https://www.premier.sa.gov.au/media-releases/newsitems-2022/lifting-covid-emergency-management-declaration>; Premier of

South Australia, ‘COVID Major Emergency Declaration Ends’ (Media Release, 24

May 2022) <https://www.premier.sa.gov.au/media-releases/news-items-2022/ covid-major-emergency-declaration-ends>. 35 See, eg, SA Public Health Act (n 13) s 90C, as inserted by SA Public Health

Amendment Act (n 18) s 3. 36 See, eg, Moulds, ‘New COVID Laws a Missed Opportunity’ (n 6). 37 Rory McClaren, ‘Government Strikes Deal with Greens and SA Best to End

COVID-19 Emergency Declaration’, ABC News (online, 17 May 2022) <https:// www.abc.net.au/news/2022-05-17/sa-covid-management-bill-set-to-pass/101073360>. 38 Parliamentary Committees Act 1991 (SA) pt 5F (‘Parliamentary Committees Act’). 39 SA Public Health Act (n 13) s 90G, as inserted by SA Public Health Amendment

Act (n 18) s 3. 40 Parliamentary Committees Act (n 38) s 15F. 41 SA Public Health Act (n 13) s 90G(2), as inserted by SA Public Health

Amendment Act (n 18) s 3. 42 Inter-Parliamentary Union, ‘Human Rights and COVID-19: A Guidance

Note for Parliaments’ (Guidance Note, 2020) <https://www.ipu.org/ human-rights-and-covid-19-guidance-note-parliaments>. 43 See Shawn Rajanayagam, ‘Urgent Law-Making and the Human Rights (Parliamentary Scrutiny) Act’ in Laura Grenfell and Julie Debeljak (eds),

Law-Making and Human Rights (Thompson Reuters, 2020) 647. 44 For a discussion of this feature of effective scrutiny undertaken by parliamentary committees, see, eg, Dominique Dalla-Pozza ‘Promoting Deliberative Debate?

The Submissions and Oral Evidence Provided to Australian Parliamentary

Committees in the Creation of Counter-Terrorism Laws’ (2008) 23(1) Australasian

Parliamentary Review 39. 45 This relationship between committees and the executive is explored in Sarah

Moulds, ‘Forum of Choice? The Legislative Impact of the Parliamentary Joint

Committee of Intelligence and Security’ (2019) 29(4) Public Law Review 277, 287–94. 46 For a discussion of this feature of effective scrutiny undertaken by parliamentary committees, see, eg, Ian Holland, ‘Senate Committees and the Legislative

Process’ (Parliamentary Studies Paper No 7, 2009). See also Brian Horrigan,

‘Reforming Rights-Based Scrutiny and Interpretation of Legislation’ (2012) 37(4)

Alternative Law Journal 228. 47 For a discussion of this feature of effective rights-scrutiny committees, see, eg,

David Kinley and Christine Ernst, ‘Exile on Main Street: Australia’s Legislative

Agenda for Human Rights’ (2012) 1 European Human Rights Law Review 58. 48 For a discussion of this feature of effective rights-scrutiny committees, see, eg, Daniel Reynolds and George Williams, ‘Evaluating the Impact of Australia’s

Federal Human Rights Scrutiny Regime’ in Laura Grenfell and Julie Debeljak (eds), Law-Making and Human Rights (Thomson Reuters, 2020) 67. 49 The South Australian Parliament does not have a Scrutiny of Bills Committee or a Scrutiny of Acts and Regulations Committee or a Human Rights Committee.

It does have a Legislative Review Committee with functions to scrutinise delegated legislation against rule of law criteria. However, this Committee’s functions, with respect to bills and existing legislation, is more limited: see

Parliamentary Committees Act (n 38) ss 10, 12. 50 (2020) 63 VR 1. 51 Ibid 68–70 [255]–[262]. 52 Ibid 67–8 [252]–[254]. 53 Ibid. 54 Ibid 7–8 [10]. 55 For further discussion of the implications of this decision, see Rosalind

Croucher, ‘Lockdowns, Curfews and Human Rights: Unscrambling Hyperbole’ (2021) 28(3) Australian Journal of Administrative Law 137; Rosalind Croucher,

‘Emergency Powers Need Scrutiny: Ensuring Accountability through COVID-19

Lockdowns and Curfews Is a Human Rights Issue’ (2021) 95(5) Law Institute

Journal 19. 56 For further discussion, see Sarah Moulds, ‘Democratic and Judicial Review of Enacted Laws in Australia: A Case Study of the Rights Scrutiny Work of

Australian Parliamentary Committees’ (2021) 51 (Special Issue) Revue Générale de Droit 47, 47–89.