Lawmaking during the Covid-19 Pandemic

Data as at 12 December 2022. This page is no longer updated.

The ALRC DataHub offers opportunities to explore how lawmaking by the Australian Parliament and Government has changed over the past 120 years. The DataHub’s Topics of Interest series of webpages provides case studies in how data can be used to tell original stories about law, law-making, and legal history. The data is a reminder that Australia’s history is, in part, written in and through its laws.

This page includes analysis of Commonwealth Government lawmaking during the Covid-19 global pandemic. The analysis is intended to be exploratory and to demonstrate the potential of using Data Hub resources to explore lawmaking. The page demonstrates how data sets published on the DataHub can be used to examine the impact of major events on lawmaking. The page shows how data sets on the making of legislation can be combined with other data to identify and visualise the volume of pandemic-related legislation, and to consider the impact of the pandemic on lawmaking in relation to various subject-matter and by different lawmakers and administrators.

The page uses the As made Commonwealth legislation data set. A methodology is provided at the bottom of the page.

Making law in response to Covid-19

On 18 March 2020, the Australian Government declared a human biosecurity emergency under the Biosecurity Act 2015. This declaration was extended seven times by the Australian Government before expiring on 30 April 2022. During this period, the Senate Standing Committee for the Scrutiny of Delegated Legislation maintained a table of Covid-19-related delegated legislation. As explained in the methodology at the bottom of the page, the ALRC combined the Senate data with the As made Commonwealth legislation data set to identify pandemic-related legislation.

Legislative responses to the pandemic

In March 2020, the Australian Parliament passed eight Acts, containing 220 pages, that directly referred to Covid-19 in their name or description. Four were appropriation Acts. Three related to the provision of funding for businesses and markets through loan guarantees and new Commonwealth investment vehicles, including the Australian Business Growth Fund and the Structured Finance Support (Coronavirus Economic Response) Fund. The last Act, the largest, was the Coronavirus Economic Response Package Omnibus Act 2020, which authorised a series of economic support payments to Australians. In the period to April 2022, the Parliament passed a further 11 Acts containing 476 pages, almost all of which were social security-related. The human biosecurity emergency period concluded with two appropriation Acts in February 2022. These Acts include only those that referred to Covid-19 (or ‘coronavirus’) in their name or description. Other Acts were likely indirectly related to the pandemic.

The data on legislative instruments maintained by the Senate Standing Committee for the Scrutiny of Delegated Legislation allows a deeper exploration of pandemic-related delegated legislation. In the first months of the pandemic, pandemic-related legislative instruments accounted for a significant proportion of legislative instruments made by Government departments and agencies. In the first three months of the pandemic, more than 30% of legislative instruments related to Covid-19, a figure that remained elevated through to October 2020.

Reflecting the persistent nature of the virus and repeated waves in Australian communities, pandemic-related lawmaking remained notable, and indeed increased in 2022 as almost all Australian states accepted widespread transmission of the virus. In total, 714 pandemic-related legislative instruments were made between March 2020–April 2022, accounting for 21% of all legislative instruments registered in the period.

Figure 1: Number of legislative instruments made monthly (March 2020–April 2022)

As Figure 2 shows, pandemic-related legislative instruments accounted for thousands of pages of legislation. Across the entire period examined in the Figure, pandemic-related instruments contained 11,365 pages of legislation. This represented 19% of all pages of legislative instruments during the period. It should be noted that not all pages of an instrument may be related to Covid-19. For example, the 728-page Poisons Standard February 2021 included only two references to Covid-19.

Figure 2: Pages of legislative instruments made monthly (March 2020–April 2022)

Figure 3 traces the overall proportion of instruments and pages that related to the Covid-19 pandemic each month. In one month, July 2020, pandemic-related instruments accounted for a majority of all pages contained in legislative instruments.

Lawmakers got busier

The period of the Covid-19 pandemic between March 2020–April 2022 saw an acceleration in lawmaking compared to the two years prior to the pandemic. The Parliament, in particular, passed significantly more legislation. The Covid-19 pandemic did not see a noticeable change in the average number of Acts the Commonwealth Parliament passed per month: in both periods the Parliament passed approximately 15 Acts per month. However, the pandemic saw significantly longer enactments. The average number of pages passed by the Parliament per month increased by more than a third, from 527 pages to 648 pages. This increased the average length of an Act of Parliament from 34 pages to 43 pages.

Figure 4 shows the total number of pages in Acts that received Royal each month in the two years before March 2020 and in the course of the human biosecurity emergency.

Figure 4: Acts pages recieving Royal Assent each month (February 2018–April 2022)

The story in relation to delegated legislation contrasts to that in relation to Acts. While the average number of legislative instruments made each month increased during the pandemic compared to the preceding two years, the total number of pages contained in these instruments remained broadly similar, as highlighted in Figure 5.

It is useful to note that the proportion of legislation related to Covid-19 is not entirely accounted for by an overall increase in lawmaking. As noted earlier, pandemic-related legislative instruments came to account for a significant volume of legislative instrument pages. However, the total number of legislative instrument pages made each month remained broadly unchanged during the period of the human biosecurity emergency. This suggests that pandemic-related lawmaking may have displaced the ordinary lawmaking of Government departments and agencies, or that this work was ‘rebadged’ as pandemic-related lawmaking.

Figure 5: Legislative instruments made before and during Covid

It is important to note that the Covid-19 pandemic may not explain changes in the volume of legislation: establishing causality requires more sophisticated statistical methods than those deployed here. For example, it is possible that the increase in lawmaking during the Covid-19 pandemic is simply the product of a broader historical trend towards increased volumes of legislation. This may mean that lawmaking will not noticeably decrease in coming years, and may indeed continue to increase. Lawmaking since 2018 has been significantly higher than in the period between 2010 and 2017. Similarly, it could be that lawmaking may have increased more between March 2020 and April 2022 without the pandemic. As noted above, the necessity of responding to the pandemic may have displaced other legislative programs that could have resulted in voluminous legislation.

Moreover, the volume of legislation tells only a partial story. The legal effect of legislation is far more important than its length. To appreciate the true role of law in the Covid-19 pandemic would require a close qualitative analysis of the legal texts produced by the Parliament and Executive Government. The Data Hub provides a useful foundation to this research, making it easier to identify relevant legislation and situate its subject matter in the broader statute book.

The UK legislative response compared to Australia’s

In the United Kingdom, data from the Institute for Government suggests that a quarter (342) of all statutory instruments created between 20 December 2019 and 29 April 2021 were pandemic-related. Australia experienced less voluminous pandemic-related lawmaking in the same period, with 20% of all legislative instruments relating to Covid, accounting for 17% of all legislative instrument pages.

The following two Figures provide comparable data on Covid-related delegated legislation in Australia and the UK.

Figure 6: Number of legislative instruments made each month (Jan 2020–April 2021)

Figure 7: Number of Covid and non-Covid legislative instruments, by month (20 Dec 2020–29 Apr 2021)

However, the types of delegated legislation produced by the UK and Commonwealth governments differed somewhat because Australia is a federation. As the Institute for Government notes, UK ‘Ministers relied heavily on secondary legislation both to implement their direct response to Covid (for example, to give legal force to lockdowns) and to manage the indirect effects of the pandemic (such as making changes to benefits claimed by people whose income was affected by lockdowns)’.

In contrast, much of the direct response to Covid-19 in Australia was driven by the states and territories. The Commonwealth government principally focused on managing what the UK Institute for Government calls the ‘indirect effects of the pandemic’, with direct interventions in the limited areas where the Commonwealth had legislative power, such as restricting the international movement of Australian residents and non-residents.

Subject matter legislation during the pandemic

This section examines the subject matter of legislation made in the course of the human biosecurity emergency declared in response to the Covid-19 pandemic. The section first covers the subject matter of legislation identified as directly responding to the pandemic, before exploring whether the pandemic may have impacted particular areas of legislation.

Changes in lawmaking for selected subject matter

Lawmaking in relation to particular subject matter may have been impacted by the Covid-19 pandemic. Figure 9 shows three areas in which lawmaking increased noticeably after March 2020.

Figure 9: Legislative instruments made per month in selected subjects

In other areas, lawmaking declined during the human biosecurity emergency, as shown by Figure 10.

Figure 10: Legislative instruments made per month in selected subjects

Lawmaking by administering department

Just three departments were responsible for approximately 79% of pandemic-related lawmaking:1 Health (now referred to as Health and Aged Care), Treasury, and Finance. This arguably reflects the fact that the pandemic was both a health and economic disaster, and required substantial responses in both areas. Figure 11 shows how many pages of pandemic-related legislation were produced by the five departments responsible for the most such legislation. These five departments produced approximately 86% of all legislation.

Methodology

The ALRC used the R programming language to conduct its analysis, but the same analysis could be conducted solely with Excel (or with any other appropriate statistical software or programming language).

The ALRC first added a new column to the As made Commonwealth legislation data set which indicated whether the legislation was made during the pandemic period. All legislation made between 1 March 2020 and 30 April 2022 were classified as being made during the pandemic period.

Another additional column was added to indicate whether the legislation was directly pandemic-related. Legislative instruments were pandemic-related if they were listed in the table of Covid-19-related delegated legislation maintained by the Senate Standing Committee for the Scrutiny of Delegated Legislation. Acts were pandemic-related if they mentioned Covid or Coronavirus in their name or description.

Finally, another column was added to indicate whether the legislation was made during the UK pandemic period identified by the UK Institute for Government. This allowed comparison with the UK data. The UK pandemic period ran from 1 January 2020 and 30 April 2021.

The ALRC then used columns such as ‘legPages’, ‘subject’, and ‘administrator’ to analyse the number of pages of pandemic-related legislation, including by time period (using ‘legDate’). The ALRC created all data visualisations and summary statistics using R.

 

  1. Changes in the machinery of government since the pandemic mean all administrator-related data is approximate. The department responsible for a piece of legislation can change over time, and the department responsible today may be different to the department responsible for making the legislation.↩︎