Distancing From Accountability? Governments’ Use of Soft Law in the COVID-19 Pandemic
| Author | Matthew McLeod |
| Published date | 01 March 2022 |
| Date | 01 March 2022 |
| DOI | http://doi.org/10.1177/0067205X211066144 |
| Subject Matter | ARTICLES |
Article
Federal Law Review
2022, Vol. 50(1) 3–19
© The Author(s) 2022
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DOI: 10.1177/0067205X211066144
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Distancing From Accountability?
Governments’Use of Soft Law in the
COVID-19 Pandemic
Matthew McLeod*
Abstract
This article analyses how governments across Australia and the world have employed ‘soft law’in
their responses to the COVID-19 pandemic. Rather than simply directing the public to the text of
voluminous, complex and everchanging public health orders, executive officials have utilised a
variety of non-legal soft law instruments to inform the community of their rights and obli gations.
These instruments are beneficial —especially in a public health crisis —as they are comprehensible,
adaptable and effective. However, their non-legal nature also presents significant accountability
issues which challenge the Australian conception of the separation of powers. Soft law exists
independent of any parliamentary authorisation or oversight. Subsequently, those affected by soft
law lack almost any ability to challenge its use in court. To remedy such issues, this article rec-
ommends a greater role for administrative complaint mechanisms (such as Ombudsman rec-
ommendations and discretionary payment schemes) in combatting abuses of soft law. It further
suggests that the limited adoption of two foreign doctrines —substantive legitimate expectations
and epistemic deference —into Australian judicial review could aid in addressing this dilemma.
Received 14 March 2021
Introduction
The COVID-19 pandemic has upended life around the globe, both through the devastating
transmission of the coronavirus itself and the efforts of governments to tame it. Not since the Second
World War has a series of government actions so rapidly and comprehensively altered the rights,
obligations and activities of all Australian residents. The Commonwealth, state and territory
governments have primarily responded to the crisis through delegated legislation —in the form of
regulations, orders, directions and rules —made under broadly expressed provisions in public
health legislation. However, most Australians are not engaging with these complex, voluminous,
obscure and everchanging documents. Rather, they are relying on government interpretations of the
law distributed in ‘soft law’instruments such as guidelines, websites, advices and press releases.
*BA/LLB (Hons I) (UNSW). This article began as an undergraduate research essay, and I am extremely grateful to all those
who aided in its further development. My sincerest thanks go to Dr Janina Boughey for her guidance and invaluable
comments and to Kate Jackson for her constant friendship and support. All views are my own.
Use of soft law by governments is by no means a new phenomenon; however, an unprecedented
pandemic which has concentrated emergency power in the executive branch provides a unique lens
for analysing its significance. In Part II, I outline what soft law is and the nature of its use in the
modern administrative state. Specifically, I examine the ways that governments across Australia and
the world have utilised soft law in their responses to COVID-19. In Part III, the benefits of soft law
as a form of regulation will be assessed, with the Australian response to the pandemic serving as an
exemplar case study. In Part IV, I critically analyse the accountability issues which soft law presents,
as illustrated through its use during the pandemic. The existence of soft law outside the Australian
conception of the separation of powers effectively allows the executive to govern without par-
liamentary authorisation or oversight. Subsequently, those detrimentally affected by soft law are (in
most cases) prevented from gaining meaningful remedial assistance from the courts. In Part V, I
suggest possible reforms which could enable Australian administrative law structures to better
account for modern governments’use of soft law throughout the pandemic and beyond. Given their
flexibility and accessibility, ‘soft’administrative complaint mechanisms such as Ombudsman
recommendations and discretionary payment schemes should take the forefront. Though less
practically effective or implementable, the expansion of Australian judicial review through the
adoption of the doctrines of substantive legitimate expectations and epistemic deference could also
aid in better accounting for modern use of soft law.
Soft Law and Its Use in the Pandemic
What is Soft Law?
By its nature, ‘soft law’is difficult to positively define, but is easier to understand by ‘first excluding
that which [it] is not’.
1
Often referred to as ‘quasi-legislation,’‘grey-letter law’or ‘tertiary leg-
islation,’soft law encompasses a variety of regulatory instruments developed by the executive
which are not enacted by, or made under the express authorisation of, Parliament.
2
Creyke defines
soft law as ‘a rule which has no legally binding force but which is intended to influence conduct’.
3
Throughout this article, those instruments which are made pursuant to the will of Parliament and
consequently hold formal authority —meaning primary and delegated legislation —will generally
be referred to as ‘hard law’.
4
Many instruments are capable of being soft law, including guidelines,
public statements, codes of conduct, practice notes, circulars and advices.
5
Official policies are
likely to be soft law if they are ‘capable of securing both the trust and compliance of reasonable
1. Greg Weeks, Soft Law and Public Authorities: Remedies and Reform (Hart Publishing, 2016) 13 (‘Soft Law and Public
Authorities’).
2. Stephen Argument, ‘Quasi Legislation: Greasy Pig, Trojan Horse or Unruly Child?’(1994) 1(3) Australian Journal of
Administrative Law 144 (‘Quasi-Legislation’); Commonwealth Interdepartmental Committee on Quasi-regulation, Grey-
Letter Law: Report of the Commonwealth Interdepartmental Committee on Quasi-regulation (Report, December 1997);
Robert Baldwin, Rules and Government (Oxford University Press, 1995) 80.
3. Robin Creyke, ‘Soft Law and Administrative Law: A New Challenge’(2010) 61(1) Australian Institute of Administrative
Law Forum 15, 15.
4. GregWeeks, ‘Soft Law and Public Liability: Beyond the Separation of Powers?’(2018) 39(2) Adelaide Law Review
303, 306 (‘Beyond the Separation of Powers?’); Robin Creykeand John McMillan, ‘Soft Law v Hard Law’in Linda
Pearson, Carol Harlow and Michael Taggart(eds), Administrative Law in a Changing State (Hart Publishing, 2008)
377, 378.
5. Creyke (n 3) 15; Greg Weeks, ‘The Use and Enforcement of Soft Law by Australian Public Authorities’(2014) 42(1)
Federal Law Review 181, 183 (‘Use and Enforcement of Soft Law’).
4Federal Law Review 50(1)
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