Around the world, governments are introducing previously unimaginable regulatory measures to control the spread of COVID-19. There is a collective sense of shock at how quickly COVID-19 is spreading both around the globe and within individual countries, and the suddenness with which these new regulatory measures have been announced and implemented.
In Australia, within the space of a couple of weeks, our governments have (to take only a few examples from an ever growing list) closed down cafes, restaurants, pubs, cinemas, libraries, concert halls, theatres, beaches and places of worship; banned almost all international travel from Australia, and required people arriving in Australia to go into isolation in hotels and other accommodation facilities; and restricted the number of people who can attend weddings and funerals.
Beyond these legal restrictions, our governments are requesting us stay at home unless we really must go out. There is a feeling of inevitability that we will at some point relatively soon move from the current state of ‘shutdown’ to one of ‘lockdown’, which would entail severe restrictions on our ability to leave our homes and on our activities when we do, and which would be enforced by police and / or military personnel. Many countries have already entered this phase.
Just how, and through what powers, these kinds of measures are being introduced varies greatly across countries depending on a host of factors such as form of government (e.g. liberal democratic or authoritarian); separation of powers across legislature, executive and judiciary; relationship between primary and subordinate legislation; legal arrangements across federations; constitutional protections for fundamental civil liberties; transparency of law-making processes including the public availability of regulatory instruments once they have been enacted; and the extent to which evidence must be taken into account in government decision-making during such times.
ADMINISTRATIVE POWERS RELATING TO INFECTIOUS DISEASES
Countries have long had, and exercised, a wide range of powers to control the spread of infectious diseases.
For example, the Victorian Public Health and Wellbeing Act provides for a range of measures that have become familiar to us all virtually overnight, including for notification of cases of certain infectious diseases (ss.127 and 128); examination and testing of individuals believed to have or to have been exposed to certain infectious diseases, and be likely to transmit the disease (ss.113-116), and for isolation of individuals with the disease (s.117). Other States and Territories have equivalent legislation.
The Commonwealth Biosecurity Act requires individuals entering Australia to provide information about their health (s.44) and provides for a range of ‘biosecurity measures’, such as managing contacts (s.85); remaining at a particular place of residence for a specified period and/or not visiting a specified place or class of place (s.87); and remaining isolated at a specified medical facility (s.97).
These powers are inherently highly coercive, and they are not to be exercised lightly. As would be expected, the applicable legislation contains a raft of constraints on the exercise of these powers.
For example, the Victorian legislation is to be administered with regard to a number of guiding principles (s.4(3)), including evidence based decision-making (s.5); accountability – that as far as practicable, decisions should be transparent, systematic and appropriate (s.8); and proportionality – decisions and actions that are proportionate to the public health risk, and not arbitrary (s.9). The management and control of infectious diseases are to be conducted in accordance with the principle that ‘the spread of an infectious disease should be prevented or minimised with the minimum restriction on the rights of any person’ (s.111).
Under the Commonwealth legislation, biosecurity measures may only be imposed on individuals if they are likely to be effective in, or to contribute to, managing the relevant biosecurity risk; are appropriate and adapted to manage the risk; are no more restrictive or intrusive than is required in the circumstances; are exercised only for so long as necessary; and where the circumstances are sufficiently serious to justify the exercise of the power (s.34).
We tend to take these kinds of provisions for granted. To the extent that they ever cross our minds, we are probably generally glad to know that they are there – that our governments are able to protect us from infectious diseases when they need to, and that their powers are subject to constraints that would require consideration of our rights and interests were we or those close to us ever to be the ones who may be putting other members of the community at risk.
But to the extent that we do ever think of these kinds of provisions, we tend to do so in relation to individuals, rather than entire populations. The exercise of powers relating to, for example, testing, contact tracing and isolation is usually confined to a relatively small number of individuals, and in most cases never receives much public attention.
ADMINISTRATIVE POWERS IN PUBLIC HEALTH EMERGENCIES
What we are finding so unsettling at the moment is both the sheer number of people who are now subject to these kinds of powers as individuals and the population wide public health measures that are being implemented under our current ‘emergency’ conditions. In Victoria, we are in a ‘state of emergency’. At the national level, it is a ‘human biosecurity emergency’.
From a rule of law or governance perspective, there is perhaps some degree of comfort in knowing that these measures are not being, and cannot be, implemented on the arbitrary whim of our political leaders. There are, as we would expect, strict frameworks that govern virtually all aspects of these emergency powers including criteria for their exercise, and requirements for their contents, length (and variation, continuation and review), specificity, and presentation to Parliament: see generally Part 10, Div 3 of the Victorian legislation and Chapter 8 of the Commonwealth legislation.
In Victoria, the Minister may ‘declare a state of emergency arising out of any circumstances causing a serious risk to public health’: s.198. The term
serious risk to public health means a material risk that substantial injury or prejudice to the health of human beings has or may occur having regard to—
(a) the number of persons likely to be affected;
(b) the location, immediacy and seriousness of the threat to the health of persons;
(c) the nature, scale and effects of the harm, illness or injury that may develop;
(d) the availability and effectiveness of any precaution, safeguard, treatment or other measure to eliminate or reduce the risk to the health of human beings;
The Minister makes such a declaration on the advice of the State’s Chief Health Officer and after consultation with the Minister for Emergency Services and the Emergency Management Commissioner. It is the declaration of a state of emergency that activates the extraordinary ‘public health risk powers’ and ‘emergency powers’ of the State’s Chief Health Officer (s.199).
At the national level, a ‘human biosecurity emergency’ may be declared by the Governor-General if the Health Minister is satisfied that (s.475)(1)):
(a) a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale; and
(b) the declaration is necessary to prevent or control:
(i) the entry of the listed human disease into Australian territory or a part of Australian territory; or
(ii) the emergence, establishment or spread of the listed human disease in Australian territory or a part of Australian territory.
The ‘emergency requirements’ that may be made by the Health Minister while the human biosecurity emergency is in force are conditioned on the Minister being satisfied of all of the following (s.477(4)):
(a) that the requirement is likely to be effective in, or to contribute to, achieving the purpose for which it is to be determined;
(b) that the requirement is appropriate and adapted to achieve the purpose for which it is to be determined;
(c) that the requirement is no more restrictive or intrusive than is required in the circumstances;
(d) that the manner in which the requirement is to be applied is no more restrictive or intrusive than is required in the circumstances;
(e) that the period during which the requirement is to apply is only as long as is necessary.
None of us knows how long we will be living in a state of emergency, nor the time, circumstances or staging of the relaxation of the extraordinary measures we will live under through this period.
At some point, it will be important to review the ways in which our governments dealt with the COVID-19 crisis. There will undoubtedly be both decisions and actions that deserve great credit and lessons to be learned. The nature of any such reviews will require careful reflection. At the same time as trying to learn everything we can usefully learn, we will need to be wary of engaging in too much 20/20 hindsight second-guessing, including by courts and tribunals in settings that are unsuitable for these kinds of analyses.
While much of the focus of such reviews will be on the decisions made at times of crisis, it will be no less important to examine the legal and institutional frameworks within which decisions fell to be made, and the capacity our public service had (e.g. numbers of staff, experience, expertise, support, training, ready access to information) to enable our governments to do what needed to be done. In such times of crisis, outcomes will depend as much on preparedness for the crisis as on decisions taken in real-time under highly uncertain and rapidly changing circumstances.
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Jonathan Liberman is an Associate Professor in Law and Global Health at the University of Melbourne with a joint appointment across the Melbourne Law School and the Melbourne School of Population and Global Health