Sydney, Australia.

COVID-19 in Australia: Protecting Public Health by Restricting Rights & Risking the Rule of Law

By Paul Harpur

Introduction

COVID-19 entered Australia via airports and cruise liners. Though Australia has not had the hospital overload and deaths experienced in other countries (as of May 13th, 2020, there have been 6,975 confirmed cases of COVID-19 in Australia and 98 deaths), the specter of Italy, the United Kingdom, and the United States, combined with the World Health Organization’s declaration of a global pandemic on March 11, 2020, stimulated significant state action across the country.

Border controls

Restrictions on who could enter the country, and how, was the first measure. This has evolved to prevent entry without Federal quarantine of 14 days in a designated location. Australian State jurisdictions have also introduced their own restrictions on entry.

Restricting freedom of movement

Restrictions on freedom of movement followed these border controls. Since the prime minister announced the tightening of restrictions on March 29th to prevent the spread of COVID-19, all states have enacted laws or issued directives to prevent gatherings. All gatherings became limited to a maximum of two people, however, there are significant differences in how each state has implemented restrictions. This confusion is intensified by local governments and cities introducing their own restrictions and businesses altering their expectations and services.

Police powers and civil liberties

To help manage the pandemic, unprecedented powers were granted to the police. COVID-19-related fines and prison terms vary across the country and their enforcement is varied across groups in society. Penalties include fines of over $50,000 for corporations and fines and jail time for individuals.

The State of Victoria’s Deputy Commissioner of Police said that some people had deliberately breached isolation rules and thus the state was considering charging such people with conduct placing a person in danger of serious injury, which carries a jail term of five years, or conduct placing a person in danger of death, which carries 10 years imprisonment.

The police forces have always relied upon the public to help them with their inquiries. During the pandemic citizens are being encouraged more than ever to report on their neighbors to the police. Australians have complied with these calls. Individuals have also undertaken “self-help” measures that have no legal basis and interfere with another’s civil liberties.

The combination of uncertainty of what is permitted and not permitted and the discretion granted to police raised serious concerns. Mainstream media started to report bizarre police conduct. The Australian Broadcasting Corporation (ABC) gave some illustrative examples of the concerning police conduct, such as an unemployed man fined AUD $1,000 for sitting in his car and a woman followed by police while driving to visit her son’s grave.

Community legal groups started publishing the concerns over police conduct and empowered citizens to challenge it. Legal challenges commenced and have been successful in overturning fines.

Workers’ rights diminished

As businesses closed and reduced the capacity to retain workers increased, unemployment grew. Workers had their workplace rights suspended to help the economy survive.

Right to democracy

Combined with the 2019-2020 bushfires which raced across the country, this is one of the most complex times in Australia’s history.

The Federal Government informed the Federal Parliament that it was adjourning sitting for 20 weeks. Both Houses of Parliament were adjourned from close of business March 23, 2020 until August 11, 2020, unless called by the Speaker. This occurred. The Senate was recalled on 2 April, at the request of the Leaders of the Government and Opposition in the Senate to consider legislation to support the economic response.

Where the federal government has been criticised for shutting down democracy due to  COVID-19, the Queensland government has been criticized for holding elections. Local government elections were held in Queensland in the middle of the pandemic, though laws introduced into Queensland to manage COVID-19 gave the Parliament the power to postpone or suspend the March local government elections.

There is a AUD $133 fine for failing to vote. While postal votes were possible, many people did not arrange these. This resulted in millions of Queenslanders, including many elderly and disabled, packing into crowded voting booths.

Disproportionate impact

The pandemic and restrictions are hard on everyone; but they hit certain groups harder. People with disabilities are especially impacted. Massive changes to civil liberties are hard for everyone to understand; they are even harder for persons with intellectual disabilities. This has resulted in at least one man with a disability being charged, pleading guilty and spending time in jail.

The Disability Royal Commission has called for specific strategies to provide guidance, support and funding to meet the particular needs of people with disability.

Conclusion

Australia’s COVID-19 measures were rushed out to respond to the rapidly developing pandemic. It is now time to review the measures and ensure that they appropriately respond to the threat while respecting civil rights. Importantly, there must be oversight. Civil liberties groups are in favor of steps to stop the spread but have also raised concerns about their coverage, implementation, and the lack of oversight. Some are urging the federal and state governments to boost transparency and introduce safeguards such as Parliamentary oversight committees and sunset clauses on extraordinary powers.

 

Paul Harpur is a leading international and comparative disability rights legal academic who serves as an associate professor at the University of Queensland’s TC Beirne School of Law.

The Petrie-Flom Center Staff

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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