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50 Fed. L. Rev. 3 (2022)

handle is hein.journals/fedlr50 and id is 1 raw text is: 7 Australian National Article _ University Federal Law Review 2022, Vol. 50(1) 3-19 Distancing From Accountability? ©TheAuthor(s)2022 Article reuse guidelines: Governments' Use of Soft Law in the sagepubcor/journa's-per-mssions DOI: 10.1 177/0067205X211066144 COVID-19 Pandem ic journalssagepubcom/ho'nelflr CSAGE 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 obligations. 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.