Navigating the maze of COVID-19 regulation – a three step approach
Why has COVID-19 produced so much regulation?
Complex problems are typically multi-faceted, involve multiple stakeholders, and often imply deep uncertainty about the future and how to respond. It would be fair to say that the nature and level of complexity of the problems caused by the COVID-19 pandemic are beyond what the global community has witnessed before.
While there have been other pandemics that have claimed millions of lives, the context for those pandemics was quite different to the one that prevails in 2020. The level of integration, inter-connectedness and inter-dependence of the world’s nations today means that every part of the global community is far more vulnerable to global shocks, like pandemics, than it has ever been in the past.
By the time the crisis passes, the COVID-19 pandemic is likely to have affected every nation on earth, including each nation’s governments, their businesses and communities, and the vast majority of the citizens that make up the population. Given the breadth and severity of the problems posed by COVID-19, it is no wonder that the pandemic has spawned an ever-burgeoning list of regulatory responses at the global, national, state and local government levels.
Why is having a means to navigate the maze of regulation important?
Navigating the maze of COVID-19 regulation can be challenging, confronting and confusing, not just for the lay person who turns on the news every day, only to discover yet another measure that has been implemented by government that could affect them - directly or indirectly. This web of regulation can also be overwhelming for businesses who are continuously trying to modify their operations to ensure compliance and consistency with changing laws, requirements and other government measures. The challenges may be no less pronounced for government, which must keep track of each regulatory response to the pandemic and evaluate how every measure fits together, particularly when there are multiple levels of government involved in tackling the problem.
Having a means to navigate the complex maze of COVID-19 regulation is essential. To be meaningful and practically helpful, this is not merely an exercise of listing and describing each of the measures. Rather, it is about understanding the rationale and context for each measure.
A three-step approach to navigating the maze
There are three main parameters that can be used to help understand and contextualise the plethora of regulation that COVID-19 has produced, namely:
the type of harm the regulation is designed to address
the target of the regulation
the effect of the regulation
Harm
Regulation in its broadest sense is about managing risk and, consequently, reducing harm that could eventuate in the absence of regulation.
There are many types of harm that have been caused by COVID-19 – most notably, harm to human health, harm to financial stability, and harm to social well-being. Each type of harm has produced different types of regulation.
So, for example:
Harm to human health has resulted in the Victorian Government issuing a government direction directing all Victorians to stay at home to help limit the spread of COVID-19 and, thereby, reduce the number of infections.
Harm to financial stability has produced restrictions on financial trading, such as directions issued by the Australian financial markets regulator, the Australian Securities and Investment Commission, requiring certain market participants to limit the number of trades executed each day.
Harm to social well-being has been addressed through a broad range of measures, including the Federal Government initiative to expand the Community Visitors Scheme to ensure that older and more vulnerable members of the community remain connected online or by phone even though they may be physically separated from others.
Target of regulation
There is a broad range of targets of regulation in the context of the COVID-19 pandemic, including people, products, places and processes:
People: People who could cause harm have been the target of regulation (such as the direction from the Queensland Government requiring a person who has tested positive with COVID-19 to self-isolate until cleared from self-isolation). People who could be vulnerable to harm have also been the target of regulation (for example, COVID-19 emergency legislation in NSW vests power in the Corrections Commissioner to release people vulnerable to COVID-19 early from prison).
Products: Some countries have issued regulations restricting the export of products that could be needed to fight the pandemic (such as a regulation issued by the European Union restricting the export of medicines and medical equipment, such as masks and protective clothing). There have also been instances where regulation has been relaxed for products that could be essential to the management of risks to human health (for example, the Australian Therapeutic Goods Administration is undertaking an expedited assessment process for all medical devices associated with the detection, prevention and treatment of COVID-19).
Places: Regulation has been issued to restrict access to certain places to prevent the spread of the virus to particularly vulnerable communities (for example, the Northern Territory government has prohibited all non-essential travel to certain designated areas and remote communities). Meanwhile, regulation has also emerged to facilitate development on land without the need for normal development approval in cases where this might be needed to protect health and safety (such as changes made to the Environmental Planning and Assessment Act 1979 (NSW) under COVID-19 emergency legislation).
Processes: Regulation has been issued to suspend processes that would normally apply (such emergency legislation in Tasmania providing that notices to vacate issued by a landlord to a residential tenant are of no effect until 30 June 2020). Regulation has also been issued to modify existing processes (for example, the Federal Government announced that all proposed foreign investments into Australia subject to the Foreign Acquisitions and Takeovers Act 1975 (Cth) must obtain approval from the Foreign Investment Review Board, irrespective of their value or the nature of the foreign investor).
Effect of regulation
Understanding the effect of regulation can also be useful in seeking to navigate complex regulatory environments.
Regulation is often presumed to be limiting or restrictive. There are many examples of this type of regulation among the various efforts to address COVID-19 (such as restrictions on those who can travel to Australia – namely, Australian citizens, residents and immediate family members).
However, regulation may also be facilitative or enabling, to encourage positive outcomes that would otherwise not eventuate in the absence of regulation (for example, the JobKeeper payment provided by the Federal Government to help individuals retain their jobs and earn an income in cases where the individual could otherwise lose employment).
Simplifying complexity
An understanding of the harm regulation is designed to address, the target of regulation, as well as its effect provides a structured and rational way to navigate a complex maze of regulation. It also has several other important benefits. In particular, it helps those affected by regulation to understand why regulation exists, what it is designed to accomplish, what it means in practice, and how it will contribute to addressing the broader problems caused by the pandemic in the context of the suite of regulatory measures being employed by government. Most importantly, it provides individuals, businesses and government with the capacity to reduce what might otherwise appear to be impenetrable complexity to something that is much simpler and, therefore, much easier to understand.
References
Victorian “Stay at Home” direction: https://www.dhhs.vic.gov.au/coronavirus-stay-home-and-restricted-activities-directions-faq#stay-at-home-direction
ASIC direction: https://asic.gov.au/about-asic/news-centre/find-a-media-release/2020-releases/20-062mr-asic-takes-steps-to-ensure-equity-market-resiliency/
Commonwealth National Health Plan: https://www.health.gov.au/sites/default/files/documents/2020/03/covid-19-national-health-plan-supporting-the-mental-health-of-australians-through-the-coronavirus-pandemic.pdf
Qld Self-Isolation Direction: https://www.health.qld.gov.au/system-governance/legislation/cho-public-health-directions-under-expanded-public-health-act-powers/self-isolation-for-diagnosed-cases-of-covid-19-direction
NSW Corrections Commissioners powers: https://www.legislation.nsw.gov.au/acts/2020-1.pdf
European Union export restriction: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.LI.2020.077.01.0001.01.ENG&toc=OJ:L:2020:077I:TOC
TGA expedited medical device application process: https://www.tga.gov.au/expedited-covid-19-medical-device-application-process
NT designated areas: https://coronavirus.nt.gov.au/travel/designated-areas-and-remote-communities
Changes to the Environmental Planning and Assessment Act 1979 (NSW): https://www.legislation.nsw.gov.au/acts/2020-1.pdf
Federal Government changes to FIRB: https://firb.gov.au/qa-temporary-changes-foreign-investment-framework
Federal Government travel restrictions: https://covid19.homeaffairs.gov.au/travel-restrictions#2
Federal Government JobKeeper payment: https://treasury.gov.au/coronavirus/jobkeeper