Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.

Governments around the world have taken various measures to tackle the ongoing coronavirus pandemic. Most countries have imposed similar measures, including social distancing rules, restrictions on the number of people who may gather in one place, mandatory wearing of face masks and curfews as well as business and school closures. Some countries have implemented entry and exit bans (border closures), with islands being able to enforce them more efficiently than others. Most, if not all, measures affect fundamental freedoms and civil liberties, some of which have the status of human rights, including the right to free movement, the right to peaceful assembly and the right to education. In order for such measures to comply with the rule of law, they must not only meet the provisions of the law but also adhere to the principles of proportionality. Given that there are various notions of proportionality, its criteria may vary depending on the understanding and interpretation of this term.

As far as Germany is concerned, the principle of proportionality was developed on the basis of the Basic Law, more precisely, Article 20(3) Basic Law:

The legislature shall be bound by the constitutional order; the executive and the judiciary [shall be bound] by law and justice.

The principle applies to interferences by public entities with basic rights and prohibits measures that are unreasonable and excessive. The principle requires measures to pursue legitimate purposes (eg public health) by way of legitimate measures (eg censorship would be illegitimate). In order for measures to be proportionate, they must also be suitable to achieve the desired outcome. Measures are suitable if they are not per se inept and may at least promote the desired outcome. Notably, public entities are afforded discretion in their assessment. Further, measures must be required, ie there must be no less invasive or no equally effective measures available to achieve the desired outcome. Again, public entities are afforded a margin for assessment. 

In addition, measures must be adequate (proportionality in its narrow sense). Measures are adequate if the desired outcome is not disproportionate to the severity of the interference. If the measures are aimed at individuals, decision makers must consider the individual circumstances. If the measures are aimed at the public at large, decision makers must consider any concrete, comprehensible and authoritative facts available to them. The general requirement under various German States’ coronavirus ordinances, for example, for all travellers returning from third countries to quarantine at home for 14 days, was set aside by a number of German courts. Their decisions suggest that such measures would be permissive under § 28 Infection Protection Act (Infektionsschutzgesetz) if the case numbers in the respective third country rendered it more likely than not that the traveller has contracted the virus, or there were no concrete, reliable and authoritative facts available in this regard, noting the traveller may be exempt for other reasons.

Judicial statements by the Chief Justice of the High Court of Australia, the Honourable Chief Justice Susan Kiefel AC, may provide guidance as to what is required under Australian law and jurisprudence for laws to be proportionate.

In JT International SA v Commonwealth [2012] HCA 43; 250 CLR 1, Kiefel J (as she then was) stated (at [337]-[338]) that:

A test of proportionality is necessary where a law purports to restrict constitutional freedoms, because although they cannot be regarded as absolute, the Constitution does not express the limits which may be placed upon them. Proportionality therefore tests the limits of legislative power. It proceeds upon an assumption that, given the existence of the freedom, the legislature could not intend to go further than is reasonably necessary in achieving the legitimate purpose of the law. Legislation which restricts a constitutionally guaranteed freedom within these bounds may therefore be said to be justified and not to infringe the freedom. A test of proportionality necessarily looks to the measures employed, the level of the restriction they impose and the legislative purpose sought to be achieved, which is to say the proportion between means and ends… .

In Maloney v The Queen [2013] HCA 28; 252 CLR 168, Kiefel J stated (at [166]) that:

The rationale for proportionality analysis is that no freedom, even a constitutionally guaranteed freedom, can be regarded as absolute. While some legislative restriction is permissible, a test of the limits of legislative power is necessary in order to ensure that the freedom is not so limited as to be lost. Proportionality analysis is the obvious candidate. Proportionality analysis tests a law imposing restrictions upon a guaranteed freedom by determining the reasonableness of the means employed by the statute to achieve its legitimate statutory objective.

The rule of law and, in particular, its concept of proportionality, encompasses principles that are meant to safeguard fundamental freedoms and civil liberties. Adherence to the principles is currently put to the test, arguably more than ever before in our lifetimes. In an endeavour to foster the debate in regard to these matters and related issues, KAS Australia has asked the contributors to this Periscope edition to respond to several questions, including: What measures have been taken in their jurisdictions? What rights and liberties may be affected by them? What is their purpose – and is it a legitimate one? Are they proportionate to the ends to be achieved?

As the contributions reveal, there is no ‘one size fits all’ response to this pandemic. They also demonstrate that the measures taken by like-minded countries must be scrutinised by means of certain – crucial and shared – values. While the ongoing public health crisis may take some time to pass, it is never too soon to consider the lessons to be learnt from it. As the title indicates, central to any response is and remains respect for the rule of law. The contributions to this edition explore what that looks like in concrete terms. They may form a basis on which governments could formulate best practices in their efforts to tackle this crisis, and to prepare for future crises.

  1. Preamble to the Constitution of the World Health Organisation (WHO) as adopted by the International Health Conference, New York, 19 June to 22 July 1946; signed on 22 July 1946 by the representatives of 61 States (Official Records of WHO, no 2, p 100) and entered into force on 7 April 1948. The definition has not been amended since 1948. See <www.who.int/about/who-we-are/frequently-asked-questions>
  2. The term ‘measure’ may refer to measures imposed by statute, subordinate legislation or administrative decision.
  3. Article 13 Universal Declaration of Human Rights (UDHR)
  4. Article 20 UDHR
  5. Article 26 UDHR
  6. The German Constitution, and thus the rights enshrined in it, are referred to as ‘Grundgesetz’ (Basic Law) and ‘Grundrechte’ (basic rights), respectively. Germany was divided at the time the law was adopted, and it was meant to be provisional until unity was restored, so as not to deepen the division. In the end, the decision was made for the German Democratic Republic to join the Federal Republic of Germany, rather than for a new state to be founded on the basis of a new constitution, not least to avoid any further delay of the reunion. See Key Facts about the Basic Law, <www.deutschland.de/en/topic/politics/german-basic-law-the-key-facts>
  7. Basic Law of the Federal Republic of Germany, see translation available at <www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0148>
  8. The discretion and margin for assessment, respectively, are justified on various grounds, including the legislature’s prerogative to adopt laws (comparable to the notion of supremacy of parliament). This, and the rule of law principle of separation of powers, mean that any judicial review of the proportionality of measures is restricted to the question as to whether they are obviously inept or not required to achieve the desired outcome.
  9. VG Berlin, Beschluss d. 14. Kammer v. 10. Juni 2020 (VG 14 L 150.20), see Press Release including link to decision <www.berlin.de/gerichte/verwaltungsgericht/presse/pressemitteilungen/2020/pressemitteilung.943743.php>
  10. OVG Schleswig-Holstein, Beschluss v. 25. Juni 2020 (3 MR 32/20), see Press Release available at <www.schleswig-holstein.de/DE/Justiz/OVG/Presse/PI_OVG/2020_05_26_Quarantaene_VO.html>
  11. Australian Constitution Centre, Biographies of the Chief Justices of the High Court, The Honourable Chief Justice Susan Kiefel AC, <www.australianconstitutioncentre.org.au/uploads/1/2/0/0/120053113/13._susan_kiefel.pdf>
  12. Disclaimer: This introduction does not represent legal advice. Rather, it is intended to provide an overview of the legal matters raised in in it.

Eva U Wagner

Programme Coordinator Rule of Law, Energy & Development Policy Regional Programme Australia and the Pacific KAS Australia

Biography

Eva is KAS Australia’s Programme Coordinator for rule of law, energy and development policy in Australia, New Zealand and the South Pacific. She has edited various Periscope volumes to date, and provided an introduction to the latest rule of law edition including reflections on the 2020 coronavirus pandemic. Her aim for the serial publication is to contribute to global peace and justice by promoting appreciation of the rule of law and harnessing the benefits of cross-border collaboration.

Eva is a German lawyer with several years of work experience in private practice. Starting her legal career in intellectual property rights, she has since specialised in international estate matters and Australian migration and citizenship law. Her education includes a (civil law) Master’s degree in German law from the University of Konstanz and a (common law) Master’s degree in intellectual property rights from the University of Aberdeen, for which she researched at the University of Cape Town compulsory pharmaceutical licences under the TRIPS Agreement. Prior to joining the Foundation, Eva was engaged as Research Officer with the Austrian Embassy in Canberra, covering Australia, New Zealand and 11 Pacific Island States.

Introduction

Analysis

Conclusion