The introduction to this volume sets out the concept of proportionality under German and Australian law, respectively. The reader is invited to consider the relationship of proportionality to the overall concept of the rule of law and the protection of fundamental freedoms which are often in tension with one another.
This tension is starkly demonstrated in the pandemic that has dominated 2020 as governments balance the fundamental freedoms and individual and collective liberties against the health and wellbeing of citizens and communities.
The seven contributions that comprise this volume represent snapshots of the approaches that governments have taken in responding to the COVID pandemic. The similarities and differences evident across the five jurisdictions (Samoa, Fiji, New Zealand, Germany and Australia) provide fertile ground for evaluating the ineluctable tension between recognising and upholding citizens’ fundamental rights on the one hand and protecting individual and collective health on the other.
The title of the collection, The State versus Liberty invites readers to consider and question this dichotomy. This is addressed directly by former Chief Justice Robert French when he observes that the title ‘…suggests a questionable opposition between the State…and personal liberty….’ (emphasis added). He suggests that the law and the Rule of Law ‘provide the infrastructure for the exercise of rights and freedoms in democratic societies’. The tension to which the title of the collection points is, in fact, a tension within this framework between the exercise of those rights on the one hand and the constraints contained in the measures recognising those rights, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rightson the other. This tension is heightened in times of emergency, such as the current pandemic, but the underlying principles remain constant: limitations on liberty ‘should be reasonable and proportional to the risks to which they are directed.’ This introduces the first of two themes common to all these contributions: the concept of proportionality of restrictive measures. The other theme is the normative role of the International Convention on Civil and Political Rights an instrument of the United Nations. It is interesting to note that the term ‘rule of law’ does not appear in the United Nations Charter although that instrument does refer to the peaceful settlement of disputes, the respect for human dignity and fundamental freedoms [however defined]; the latter understood implicitly to be protected by the concept of the ‘rule of law’.
Infrastructure of the Rule of Law
The description of the law and rule of law as infrastructure is a useful one in understanding the framework within which rights individually and collectively are regulated. As can be seen from the foregoing contributions, the framework of law is unavoidably technical, detailed and, for some (dare it be said?) possibly too complex. This is simultaneously a strength and a vulnerability of the rule of law. Its strength is that it informs the rules based international order and rules based domestic orders. In so doing, it sets limits on the exercise of power. Its vulnerability is that its dry technicality frequently fails to capture the imagination of the wider public for whose benefit and protection it operates. Consequently, it is taken for granted with thought rarely given to the need consciously to nurture and sustain it.
This detail is on display in the contributions in this volume. In these jurisdictions and, it is suggested, in all jurisdictions that have developed measures in response to the imperatives of the pandemic, governments and regulators have undertaken their tasks beginning with an implicit or indeed explicit appreciation of the tension to which Mr French refers. The starting point for those exercising the power to restrict the rights and liberties of citizens, is compliance with the law and the rules that give effect to it, balancing competing rights on the one hand – the right to freedom, the right to assembly – and the individual and collective right to health. Indeed, in relation to the vulnerable in our societies, this includes the right to life itself. Associated with this of course is managing effectively and sustainably the scarce resources placed under considerable strain during the pandemic: frontline health services, health support workers – for both physical and mental health – funeral homes and all those services immediately involved in assisting the ill and the dying and supporting their families. What can also be observed from the contributions in this volume is the role that media play in ensuring the transparency of the measures promulgated and their implementation – often referred to as holding power to account.
It is clear from reading the contributions in this volume that different parliaments manage the balance of rights and restrictions differently. Debates over these issues are inescapable and necessarily involve detailed and technical discussions of the legislation in question and the constitutional arrangements with which they must comply. However, common to all those contributions is a discussion of the principle of proportionality.
Prof Saunders observes that the length of the contribution constrains detailed discussion of all the rules and the responses. Robert French attempts this Herculean task by use of a table of legislation. In this respect the two contributions complement each other well. Both discuss the nature and role of the National Cabinet, a new institution developed in response to the COVID pandemic in Australia. Both comment as well on the generally limited litigation that has occurred in Australia. This is perhaps unsurprising given the crisis and high level of trust that the Australian population has in its health system in particular; and given that from the beginning the politicians in Australia at both the State and Federal levels clearly based their decisions on the best health advice available at the time and made this clear to the population at large.
As Prof Saunders notes in her contribution, in the early stages in Australia the rationale for the restrictions imposed on citizens was explained in terms of ‘protecting the capacity of the health system to cope with the potential case levels.’ As she continues however, ‘ even at this stage…[t]he scenes being played out in Europe and the United States demonstrated that the threat to life and even human dignity was real in ways that weighed with Australian leaders. As time has gone on, moreover, with greater knowledge of the longer term health effects of COVID- 19 on sections of the population, it has become increasingly plausible to explain the reactions of governments as driven by concerns for human health and life, in addition to more instrumental concerns about the ability of health services to cope.’
In her discussion of the accountability and control of the exercise of power in Australia Prof Saunders observes that in the absence of ‘ a constitutional rights framework for legislation … considerable weight lies on the performance of political institutions and on independent courts interpreting legislation and applying the common law.’ As she notes, parliaments as institutions in Australia have had a relatively limited role to play in ensuring accountability for the actions undertaken by the Executive. Nonetheless as she demonstrates, parliamentary committees have taken up the role of holding the Executive to account, particularly those committees associated with second chambers which government may not control. In the Australian context in the Commonwealth this is particularly the case with the Senate. In this way, these parliamentary committees and the members of those committees continue the work of the institutions of the rule of law framework and infrastructure to manage the tensions previously noted.
Prof Saunders discusses the insights gained from the Australian responses to the pandemic, responses in Australia by governments at both the State and Federal levels, observing that they have benefited from ‘ considerable public trust and voluntary compliance ‘. This level of trust and confidence may in part be explained by the fact that politicians at all levels of government in Australia, from the beginning of the pandemic, took advice from a range of experts including clinicians, epidemiologists, economists and other disciplines and sought to develop policy and implement it based on the best evidence available in a highly dynamic set of circumstances. It may also be explained by the fact that politicians have sought to explain in conjunction with chief medical officers, not only what measures were being undertaken but why. It is suggested that this last point in particular may explain the high level of public trust and voluntary compliance seen in Australia, New Zealand, Fiji and Samoa, which has been lacking in parts of Europe and the United States. It must be remembered of course that these jurisdictions in the Pacific have relatively small populations and in the case of Australia considerable landmass, notwithstanding the fact that the majority of the population is located on the eastern seaboard.
It is clear from the contributions to this publication that proportionality is fundamental to legal systems and to the rule of law regardless of whether that rule of law manifests in a jurisdiction belonging to the civil or common law family of legal systems (Germany belongs to the former; New Zealand, Australia, Fiji and Samoa belong to the latter); located in continental Europe, the Northern or the Southern hemisphere; or island states. The principle of proportionality is to be encouraged and promoted. It is predicated on strong independent institutions and on the confidence of the population in those institutions as Prof Broehmer emphasizes in his contribution.
Dr Butler’s contribution concerning New Zealand is similarly rich with the detail of the rule of law infrastructure as it pertains to that unitary state. Again there is a detailed exposition of the measures undertaken by the legislature in New Zealand as well as examples of instances where citizens have called the legislature to account in exercising the powers granted under the emergency measures. In the case of New Zealand the government took the decision from the beginning to eradicate the virus rather than merely alleviate the burden on the healthcare system by seeking to suppress it. In contrast to the Australian situation, the circumstances in New Zealand as set out in Dr Butler’s contribution reveal a relatively straightforward set of arrangements. While the New Zealand Government has also introduced at times highly restrictive measures, this has not gone untested: they have been the subject of assessment and critique from leading public law scholars and challenged through the courts by citizens including one personally and deeply affected by them (Mr Christiansen). Similarly to the oversight of the Senate Committees in Australia, to which Prof Saunders referred, in New Zealand the Human Rights Commission is also a part of the ‘rule of law’ infrastructure within which the Parliament must operate.
It must be remembered that whereas Australia is a Federation across a continent with an area of 7, 682, 300 square kilometres, a population density of three people per square kilometre and a population of almost 26 million people, New Zealand is a unitary state with a total land mass of 263,310 square kilometres, a population density of 18 people per square kilometre and a population of fewer than 5 million people (4,822,233).
Ashwin Raj’s review of Fiji’s responses to the pandemic highlights the second theme running through the contributions: the normative role of instruments such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). With a population of under one million, population density of 49 people per square kilometre and a land area of 18,270 square kilometres, Fiji has had its own challenges with democracy and the rule of law. Nevertheless, as this contribution demonstrates, Fiji also has a robust ‘rule of law infrastructure’, also clearly anchored in the international rules based order. Beginning with States’ obligations under international law, Mr Raj sets in context the Fijian Government’s responses to the pandemic within the ‘rule of law infrastructure’ of Fiji’s Constitution. In his contribution, one can see the tension between a State’s rights to legislate domestically and the limitation on the exercise of such rights imposed by its obligations under international law.
The author delineates the process in Fiji of balancing the tensions between rights and restrictions domestically – between the individual and the State – and internationally. Fijians can call on protections under international human rights law and domestically under the Constitution assured them under the rule of law. There is a cautionary note in this contribution that is implicit in all the contributions: the ‘rule of law infrastructure’ must include the means by which individuals may readily defend their rights before domestic tribunals as required. This is integral to ensuring the balance between rights and restrictions are appropriate and essential in highly dynamic circumstances such as those caused by the pandemic.
Beatrice Tabangcora’s contribution on Samoa addresses another important aspect of the ‘rule of law infrastructure’: the role of communities within that structure. Samoa also has a legislative framework within which the tensions of freedoms and restrictions are managed. As she notes in her contribution, Samoa is a remote, developing island nation with limited resources. In that context, the local communities play an essential and active role both in defending individual and collective freedoms as well as giving effect to restrictions necessitated by the pandemic.
As a result of a measles epidemic in 2019, Samoan communities were trained in delivering public outreach campaigns, immunisation, proper reporting and recording. They were prepared to that extent when the pandemic occurred. As Ms Tabangcora observes, a highlight of Samoa’s response to the pandemic ‘has been its empowerment and inclusion of communities in the facilitation of quarantine for repatriated Samoans.’ The example of the first community quarantine in Poutasi village is given to illustrate the ‘innovative solution to the economic and administrative problems associated with organizing quarantine facilities that were faced by the Government.’ This approach was taken of necessity in Samoa. Yet it holds a valuable lesson for other States including Australia and Germany. There, and elsewhere, the issue of quarantine has been more fraught; framed, at times, in a way that loses sight of the community and collective interests in focusing extensively on the rights of the individual. Empowering communities and harnessing the goodwill that engenders may, it is suggested, reduce the tension inherent in the balancing of rights and restrictions undertaken within the rule of law framework. This includes effective communications initiatives, as were introduced by the Samoan Government in response to the shortcomings in that regard during the measles epidemic.
In contrast to the experiences in Samoa, Fiji, New Zealand and Australia, the courts in Germany have played a greater role in balancing the tensions between rights and restrictions within the ‘rule of law infrastructure’. As Prof Mellinghoff and Dr Maetz observe, the several hundred court cases to date that have been brought in Germany ‘show that the rule of law is functioning well in the Federal Republic of Germany’. In this jurisdiction, the courts are the institutions within the ‘rule of law infrastructure’ that have been most engaged in holding the Executive to account in the exercise of its powers. This contribution and that of Prof Broehmer, give a comprehensive account of the measures forming the ‘rule of law infrastructure’ in Germany. As a Federal State, Germany, like Australia, has a more complex infrastructure than is the case in the other jurisdictions considered in this volume. With a population of almost 84 million people (83,876,966), a landmass of 348,560 square kilometres and a population density of 240 people/square metre, the challenges for Germany in addressing the pandemic are considerable. This is also true of course for other states with such high population density.
Sub-titled, ‘Stress Test for the German Rechtsstaat’, the contribution by Prof Mellinghoff and Dr Maetz sets out clearly the range of measures adopted at both the Federal and State levels in response to the pandemic. (This contribution also effectively uses tables to set out these measures). At the time of writing, it was unclear whether a second wave of the virus would occur in Germany or Europe more widely. Unfortunately, in the interim, this has happened and the balancing of rights and restrictions within the German, and European, ‘rule of law infrastructure’ continues unabated.
Prof Boehmer’s contribution also provides some insights into the wider, European Union (EU) context of the pandemic as it relates to the fiscal measures adopted by Germany in response to the pandemic. He comments on the response package adopted by the EU in July 2020 to provide ‘financial markets with the liquidity required to respond to the crisis’. His observations on the implications of national border closures in respect of the EU’s fundamental free movement rules also resonate with the Australian experience. However, in Germany, the challenges for cross-border communities relate not only to those living on internal state borders but also for those living on national borders. These communities are well-integrated with many people working and living on different sides of national borders. These comments give an insight into the additional complexity of the ‘rule of law infrastructure’ of the EU. It is clear even from Prof Broehmer’s brief comments that the EU Member States retain and exercise full sovereignty, whether within their own spheres of competence or through the institutions of the European Union.
To conclude, as Prof Saunders observes in her contribution in relation to Australia, there is more generally a need to provide ‘more structured emergency procedures’; and to ensure and where necessary reinvigorate public trust and confidence in authorities responsible for managing the rule of law infrastructure in times of emergency such as this pandemic – for it certainly will not be the last. Regardless of the jurisdiction, it is essential that the tension referred to at the beginning of these comments continues to be managed in a way that ensures that any measures and responses are proportionate to the harm being addressed. As has been noted repeatedly during this current pandemic, it is no longer a question of if but rather when the world will be confronted with the next pandemic. Ideally, measures to respond quickly to that next pandemic should already be in preparation. They must, however, always be proportionate, transparent, reasonable and consistent with the rule of law. Consciously developing stronger community empowerment, as exemplified in Samoa, is also surely desirable for truly giving effect to the rhetoric ‘we are all in this together’. Mr Raj expresses powerfully the paradox of the pandemic globally and perhaps marks a new phase in the evolution of the rule of law:
Border closures have, ironically, heightened our sense of interconnectedness and shared vulnerability; and the global imperative to reimagine a new kind of social contract between states and citizens.
- Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948).
- International Covenant on Civil and Political Rights, opened for signature on 16 December 1966 (entered into force 23 March 1976).
- Ibid, art. 6; Universal Declaration of Human Rights, (n1), art. 3; Convention on the Rights of Persons with Disabilities, opened for signature on 30 March 2007 (entered into force 3 May 2008), art.10; see also www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/right-life#articles-from-relevant-conventions (accessed 12/11/2020)
- Worldometer: www.worldometers.info/world-population/new-zealand-population/ (accessed 6/11/2020).
- 898 690 as at 5.11.2020: Worldometer, ibid.,