Giving unelected officials the power to make laws

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In December 2022, the Queensland Court of Appeal handed down a judgment affirming that, during the period of the declared public health emergency starting on 29 January 2020, the parliament had delegated its power to make laws to the Queensland Chief Health Officer and other unelected officials. The consequence of the decision is that the individuals to whom that power was delegated are exempt from both the accountability measures provided by the Judicial Review Act 1991 (Qld) and the accountability that elected officials have to the electorate.

The Decision

The decision was made on appeal from a single judge of the Supreme Court of Queensland. In that case, Dalton J found that powers given to the Queensland Chief Health Officer under s 362B of the Public Health Act 2005 (Qld) (‘PHA’) had a legislative character. In other words, the Chief Health Officer was given the power to make laws, whereas an executive officer of the government is usually only given the power to administer laws that have already been made.

Two judgments were written by the Court of Appeal. Flanagan JA, with whom Morrison JA agreed, affirmed the judgment at first instance and dismissed the appeal. Davis J dissented, finding that the powers granted to the Chief Health Officer were of an administrative character, and were explicitly intended by the parliament to be of an administrative character, and therefore the Chief Health Officer should be ordered to give reasons for his decisions to make certain public health directions.

Flanagan JA reasoned that the provision of the PHA that gave the Chief Health Officer power to make directions did not, of itself, establish ‘the content of the law as a rule of conduct’. The provision was:

  • The chief health officer may, by notice published on the department’s website or in the gazette, give any of the following public health directions –
    • a direction restricting the movement of
    • a direction requiring persons to stay at or in a stated place;
    • a direction requiring persons not to enter or stay at or in a stated place;
    • a direction restricting contact between persons;
    • any other direction the chief health officer considers necessary to protect public health.

Instead, in Flanagan JA’s judgment, it was the public health directions made under that provision that established the content of the law as a rule of conduct. While it is not beyond the remit of an administrative decision-maker to make rules for the purpose of ‘gap-filling’ in accordance with the rules of conduct established by statute, ‘the CHO, by deciding to give directions, imposed significant obligations on wide classes of persons’.  

His Honour accepted that the primary judge had applied the appropriate tests in concluding that ‘The rules were to apply generally to people in Queensland. They applied prospectively. They had significant impact on the employment, recreation, rights to freedom of movement and bodily integrity of many people’, and therefore the Chief Health Officer was not subject to the requirement to give reasons for his decisions pursuant to the Judicial Review Act 1991 (Qld).

Davis J had a different view. His Honour disagreed that the Public Health Directions created rules of conduct that gave the powers a legislative character. Power is given by the parliament to numerous different administrative officers to give people directions, and penalties are imposed for failing to comply with those directions. The giving of a direction by an executive officer is not the making of a law, particularly when the scope of the power is narrowly constrained and requires the existence of a jurisdictional fact, in the form of the officer’s satisfaction of a particular prerequisite enlivening the exercise of power.

His Honour also observed that parliament, in explaining its reasoning for giving the Chief Health Officer the power under s 362B, expressed its intentions about the nature of the power in language that had an explicitly administrative tenor. Noting that the explanatory notes to the amendment bill said ‘The delegation of administrative powers is appropriately limited and is necessary to ensure swift and targeted responses to the rapidly changing risks are possible’, his Honour concluded that, in his view, ‘this is what was achieved’.

Davis J would have declared that the Chief Health Officers powers were administrative and were therefore subject to the accountability measures provided by the Judicial Review Act 1991 (Qld). The Chief Health Officer would therefore have been required to give statements of reasons for making certain Public Health Directions, noting that the declared public health emergency ended in October 2022.

The Consequences of the Decision

As alluded to in the introduction, because the Chief Health Officer’s powers are legislative in character, anyone whose rights or interests were affected by a Public Health Direction (or may, in future, by effected by a future Public Health Direction) has no recourse to seek reasons for the decision pursuant to the Judicial Review Act 1991 (Qld).

The purposes of empowering persons with standing to request reasons for decisions made by administrative decision makers are to ensure transparency in decision-making and to enable adversely effected persons to consider whether government power has been misused against them.

Davis J noted in his judgment:

Reasonableness is the hallmark of the exercise of administrative power. Even in the absence of some express requirement of reasonableness, it is assumed that Parliament intended that administrative power will be exercised reasonably. What is “reasonable” introduces questions of proportionality. The decision must be reasonable by reference to the nature of the power and the circumstances of its exercise.

By delegating legislative power to the Chief Health Officer and making the powers to make Public Health Directions immune from judicial review, the Queensland Parliament has deprived the public of the ability to assess whether the impact of the Public Health Directions was proportional to the detrimental impacts they had. In other words, absent the ability to inquire whether the Directions were in fact reasonable, we are left to trust that they were.

Delegated legislation is not unusual. Australian Parliaments often delegate responsibility to government departments to make regulations. The ACNC governance standards are an example, though that power is technically delegated to the Governor-General by division 200 of the enabling Act. In this case, the majority concluded that the Public Health Directions were delegated legislation, while Davis J concluded that a Public Health Direction is ‘a unique direction governed by the exercise of discretion… typical of the exercise of administrative power’ and that there was no parliamentary oversight over the Public Health Directions ‘consistent with a grant of executive power to an officer entrusted to implement the laws created by Parliament’. 

Reasonable minds may differ on whether the Queensland Government’s response to the spread of SARS-CoV2 was reasonable and appropriate. Setting that issue to one side, our elected officials handed over their powers to make significant laws that created a substantial imposition on many people to an unelected government officer who was unaccountable to both the electorate, through the electoral process, and the Courts, pursuant to the Judicial Review Act 1991 (Qld)

Neumann & Turnour Lawyers believe that good law wisely applied by legal experts responsive to their clients and their community is transformative for good. To learn more about our government accountability practice, see our website or feel free to contact us