The title of this Collection: State v Liberty suggests a questionable opposition between the State and its laws and regulations on one hand and personal liberty on the other. The law and the Rule of Law provide the infrastructure for the exercise of rights and freedoms in democratic societies.
At any time there is a tension between the human rights and freedoms recognised in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and the constraints recognised in those instruments which serve legitimate societal purposes. In time of emergency, such as the present COVID-19 pandemic, that tension is heightened but the underlying principles which should inform political judgments about its resolution and their essentially evaluative character are the same. Responses limiting liberty should be reasonable and proportional to the risks to which they are directed. That is not always a limitation to be found in the laws authorising such responses or in the constitutions under which they are made.
Turning to Australia’s response to the pandemic, it has involved the exercise of legislative and executive powers which must be understood in the context of their constitutional bases and limitations.
The Commonwealth of Australia is a federation comprising, as distinct polities, the Commonwealth itself, six States and two self-governing Territories. The Constitution of the Commonwealth came into effect on 1 January 1901 as a Statute of the Parliament of the United Kingdom. It provided for enumerated legislative powers to be exercised by the Parliament of the Commonwealth and vested executive power in the Governor General albeit that power is exercised by ministers and other public authorities and officials, in some cases deriving directly from the Constitution but for the most part from legislation. The law-making powers of the States derive from their own constitutions which also originated as Imperial Statutes and were continued in force by the Commonwealth Constitution. The law-making powers of the self-governing Territories derive from Self-Government Acts enacted by the Commonwealth Parliament. The laws of the Commonwealth prevail over the laws of the States and the Territories to the extent of any inconsistency.
The Australian Constitution contains no Bill of Rights. Nor is there a statutory Human Rights Charter at a national level. Two of the States, Victoria and Queensland, and one self-governing Territory, the Australian Capital Territory, have human rights legislation broadly modelled on the Human Rights Act 1998 (UK). Those Acts are not constitutional in character. They require that other legislation within those polities be interpreted, so far as possible, consistently with the human rights and freedoms set out in those Acts which broadly derive from the International Covenant on Civil and Political Rights. They also require public authorities to have regard to those human rights and freedoms in the exercise of executive powers.
Restriction on movement has been a major element of measures to suppress the spread of the virus. A provision of the Commonwealth Constitution relevant to restrictions imposed by law on movement within Australia is s 92. It provides:
On the imposition of uniform duties of customs, trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
The people of Australia are free, by virtue of s 92, to pass across State borders without burden, hindrance or restriction. However the freedom is not absolute:
Hence, a law which in terms applies to movement across a border and imposes a burden or restriction is invalid. But, a law which imposes an incidental burden or restriction on interstate intercourse in the course of regulating a subject-matter other than interstate intercourse would not fail if the burden or restriction was reasonably necessary for the purpose of preserving an ordered society under a system of representative government and democracy and the burden or restriction was not disproportionate to that end. Once again, it would be a matter of weighing the competing public interests.
Movement across borders has been restricted by some State Governments in order to prevent the spread of the virus from one State to the other. The constitutional validity of such restrictions on freedom of movement depends upon an evaluation of the purpose and the reasonableness and proportionality of the response. At the time of writing there is a challenge pending in the High Court of Australia to the stringent restrictions imposed by the Government of Western Australia on travel into the State from other parts of Australia.
In Australia there is in place a significant array of legislative and executive responses to the pandemic. As of 2 May 2020, an index of Acts and Regulations identified 615 COVID-related instruments. The first response of every jurisdiction in Australia, apart from the State of New South Wales, was to declare a State of Emergency. Each response has relied upon one or two primary Acts and instruments or directions issued under their authority. Important statutes in this respect have been:
|Commonwealth||Biosecurity Act 2015 (Cth)|
|Queensland||Public Health Act 2005 (Qld) Disaster Management Act 2003 (Qld)|
|Victoria||Public Health and Wellbeing Act 2008 (Vic)|
|New South Wales||Public Health Act 2010 (NSW)|
|Western Australia||Emergency Management Act 2005 (WA) Public Health Act 2016 (WA)|
|Tasmania||Public Health Act 1997 (Tas)|
|South Australia||South Australian Public Health Act 2011 Emergency Management Act 2004 (SA)|
|Australian Capital Territory||Public Health Act 1997 (ACT)|
|Northern Territory||Public and Environmental Health Act 2011 (NT)|
As appears from that table, governmental action has derived from Commonwealth, State and Territory laws and instruments reflecting the federal character of Australia’s constitutional system.
The restrictions imposed by various statutory and regulatory and executive mechanisms include:
- Travel restrictions – into and out of Australia, between States and Territories and within States and Territories. An example of the latter was the prohibition of travel from one region to another within Western Australia, designed to prevent the spread of the virus within the State and, in particular, to protect vulnerable Indigenous communities in the North-West of the State. That prohibition was lifted following low detected infection rates across the State.
- Restriction on movement out of residences other than for work, exercise or shopping — the latter limited in some cases by duration and location.
- Quarantine and self-quarantine requirements — including mandatory quarantine in hotels for international arrivals enforced by police or security contractors and monitored self-quarantine at home subject to random checks by police.
- Restrictions on gatherings and/or the number of people that may attend them, including weddings and funerals and a wide range of public and private events.
- Limitations on the operation of businesses and work places by reference to number and spacing of attendees (eg restaurants) and extending to full closures depending on infection rates.
- Social distancing and mask wearing requirements.
- Protection of tenancies, commercial and otherwise where tenants have suffered economic pressure as a result of job loss or business closures.
There have been substantial fiscal measures to protect the employees of businesses which have had to cease or reduce their operations by reason of the pandemic (JobKeeper payments) and the enhancement of unemployment benefit (JobSeeker) payments. Regulatory prohibitions against companies trading while insolvent have been ameliorated during the pandemic in recognition of the financial stress on a wide range of businesses. Some courts have used virtual hearings.
A ‘National Cabinet’ consisting of the Prime Minister, Premiers of the States and the Chief Ministers of the Territories, has been formed, albeit without a statutory basis, to coordinate, so far as possible, responses to the pandemic. This, however, has not prevented different States from taking different measures in response to local conditions and infection rates — some more restrictive than others. The National Cabinet has been described as a ‘Cabinet office policy committee’ of the Commonwealth Cabinet. The Prime Minister stated, on 29 May 2020, that the National Cabinet operates under the Federal Cabinet Rules, including its confidentiality rules. A leading constitutional academic, Professor Anne Twomey, has argued however that the National Cabinet is not really a cabinet at all as it derives its power from the Federal Cabinet and that therefore the Prime Minister controls its membership and agenda. Nor is it a ‘cabinet’ in the legal sense. Its communications fall within the category of ‘intergovernmental relations’ rather than true cabinet confidentiality. It is essentially an intergovernmental arrangement which has effectively replaced the Council of Australian Governments and has been meeting fortnightly during the pandemic.
Some of the legislative measures have had or provided for retrospective operations. The most common instance of retrospectivity arises in connection with the National Cabinet’s Code of Conduct on Commercial and Residential Tenancies.
Ordinarily, legislative instruments which are made by the Executive pursuant to statutory authority are subject to scrutiny and disallowance by the Parliament. That is, however, a statutory not a constitutional requirement. On 14 May 2020, the Governor-General of the Commonwealth declared a Human Bio-Security Emergency. That Declaration authorised the Minister for Health to determine emergency requirements not subject to disallowance by Parliament in the same way as regular legislative instruments.
The Commonwealth Government is maintaining a list of COVID-19 related delegated legislation in order to facilitate public scrutiny. The Senate Standing Committee for the Scrutiny of Delegated Legislation resolved in April that it would continue to meet digitally in order to scrutinise delegated legislation relating to COVID-19 passed while the Parliament was not sitting. The Committee chair, Senator the Hon Concetta Fierravanti-Wells, stated that:
Parliamentary scrutiny of executive-made laws is essential in critical times like these. By continuing to scrutinise legislative instruments which would ordinarily be subject to parliamentary oversight, the committee will play its part in ensuring that the government remains accountable to the Parliament during this time.
The Committee stated its expectation that emergency delegated legislation would:
- be time limited where it trespasses on personal rights or liberties, or amends or modifies the operation of primary legislation;
- only trespass on personal rights and liberties to the extent necessary to protect public health; and
- be accompanied by an explanatory statement which, in addition to the usual requirements, clearly explains:
- why it is necessary to include significant matters in delegated legislation, rather than primary legislation; and
- any safeguards in place to protect personal rights and liberties.
The Federal Government’s response to the pandemic has primarily been concerned with financial packages, a national code of conduct for residential and commercial tenancies and travel restrictions:
|18 March||Declaration of Emergency||Biosecurity Act 2015 (Cth)||Human biosecurity emergency declared – allowing Health Minister to issue targeted, legally enforceable directions and requirements to combat COVID-19|
|24 March||Economic response||Coronavirus Economic Response Package Omnibus Act 2020 (Cth)||Collection of Acts establishing the Federal government’s economic response.|
|25 March||Travel Restriction||Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020||Ban on Australian citizens and permanent residents travelling overseas.|
|3 April||Economic response||National Cabinet developing a code of conduct regarding commercial tenancies.|
|7 April||Economic response||National Cabinet agrees that States and Territories should implement the code of conduct.|
|9 April||Economic response||Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth)||Details of financial support announced by the Federal Government.|
|9 April||Economic response||Coronavirus Economic Response Package Omnibus (Measures No 2) Act 2020||Amendments to implement financial support, including JobKeeper.|
|16 April||Travel Restriction||Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Determination 2020||Limiting the entry of persons into certain designated areas in Queensland, Northern Territory, Western Australia and South Australia.|
|23 April||Travel Restriction||Public Health (Jervis Bay Territory) Emergency Declaration 2020||Public health State of Emergency declared over the whole of Jervis Bay (in accordance with subsection 15(1) of the Jervis Bay Territory Emergency Management Ordinance 2015).|
|5 May||Modification of existing process||Corporations (Coronavirus Economic Response) Determination (No 1) 2020||Section 127(1) of the Corporations Act modified to allow company officers to sign and execute documents electronically.|
Similar tables can be constructed for the various States and Territories. Particular examples of directions issued in specific jurisdictions include: Queensland’s directions under the Public Health Act 2005 (Qld) in March restricting mass gatherings, requiring the closure of certain businesses, providing for border road closures and police checks on major highways, self-isolation of 14 days and termination of rail services. Another direction imposed a maximum of ten persons allowed in private residences. Victorian measures included direction and detention notices which may be issued to persons who have arrived in Victoria from overseas from 31 May. There were also stay-at-home directions issued and police were authorised to issue on the spot fines for breaches of directions. Travel restrictions from one postcode area to another were the subject of directions at the beginning of July under the Public Health and Wellbeing Act 2005 (Vic). New South Wales had a range of similar directions including a restriction on gatherings generally in public places of more than two people with a maximum penalty for individuals of imprisonment for six months or a fine of up to $11,000 or both. On 30 March 2020, the Tasmanian Government made a direction that persons must remain in their primary residence unless leaving for a specified reason. That direction was made pursuant to the Public Health Act 1997 (Tas).
Australia’s federal Constitution necessarily leads to a degree of complexity with different jurisdictions taking broadly similar but sometimes different approaches.
For the most part it seems that the Australian people have accepted the need for restrictions on their liberties necessary to suppress the spread of the virus. That said, there is debate about what is necessary and what is not, about what is proportional and what is not and about inconsistencies in the application of restrictions. In a democratic society that kind of debate is inescapable. Having regard to the character of the pandemic and subject to its duration, it seems unlikely that the restrictive responses will lead to substantial long term erosion of the rights and freedoms of Australians. That depends upon the political and societal culture much more than on the existence or non-existence of constitutional bills of rights or national charters.
- 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).
- Gratwick v Johnson (1945) 70 CLR 1, 17 (Starke J).
- Cunliffe v Commonwealth (1994) 182 CLR 272, 307-8 (Mason CJ) (citations omitted).
- NSW Treasury, NSW Review of Federal Financial Relations, Draft Report, June 2020, <www.treasury.nsw.gov.au/draft-report>.
- Prime Minister Scott Morrison, Press Conference, Australia Parliament House, 29 May 2020, <www.pm.gov.au/media/press-conference-australian-parliament-house-act-29may20>.
- Anne Twomey, ‘We should bake in improvements to our federation’, The Australian (6 July 2020).
- See eg COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic).
- Senate Standing Committee for the Scrutiny of Delegated Legislation, ‘Scrutiny of COVID-19 Instruments’. <www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legislation/Scrutiny_of_COVID-19_instruments>.
- Parliament of Australia, ‘Senate committee to continue to scrutinise delegated legislation, including COVID-19 related legislation’ (Media statement, 1 April 2020).
- Parliament of Australia, ‘Senate committee to continue to scrutinise delegated legislation, including COVID-19 related legislation’ (Media statement, 1 April 2020).
- Prime Minister of Australia, ‘Update on Coronavirus Measures’, (Media Statement, 3 April 2020) <www.pm.gov.au/media/update-coronavirus-measures-030420>.
- Prime Minister of Australia, ‘Update on Coronavirus Measures’, (Media Statement, 7 April 2020) <www.pm.gov.au/media/update-coronavirus-measures-070420>.