The first case of Covid-19 was reported in the Australian State of Victoria towards the end of January 2020. The early onset of the virus coincided with a disastrous bushfire season that ravaged many parts of Australia but was particularly devastating in the more populous south-east. As the fires came under control in early March the virus infection rate grew rapidly, peaking towards the end of March, and then declining sharply. Infection rates were very low in April and May, but climbed rapidly again in June and July, almost entirely in Victoria, until case numbers again declined in early August. In Australia, as elsewhere, the virus has proved highly infectious and unpredictable. As a generalisation, however, the Australian response has made the health crisis manageable, keeping total cases to just over 26,500 and deaths to just below 800, out of a total population of 25.5 million people.
The response has required concerted effort by both State and Federal levels of government, and has given rise to new modes of intergovernmental co-operation. It has been assisted by the generally ready compliance of the Australian people. As elsewhere, management of the pandemic in Australia has dramatically expanded the effective reach of executive power and diminished the role of legislatures. There has been little recourse to the courts, although two major inquiries were established into apparent mismanagement, one of which is yet to report, which offer additional windows into government practice.
It is timely to take stock of how the system of government responded to the crisis, in order to begin the task of drawing insights for the future. To this end, the next part of this paper sketches the context within which the Australian system of government operates, to inform understanding of what has occurred. Parts 3 and 4 deal respectively with the legal rules and with accountability and control. Part 5 assesses the Australian response and suggests some future directions.
Australia is a federation, with a central level of government, known as the Commonwealth, and six States and two territories, which vary in size and resources, but are capable polities in their own right. The federal system is organised along lines broadly similar to those in the United States, in the sense that enumerated, largely concurrent powers are assigned to the Commonwealth, the unspecified residue remains with the States and each jurisdiction has a full set of institutions and administers its own legislation. All jurisdictions have parliamentary systems in the Westminster parliamentary tradition, and most have bicameral legislatures.
Each level of government has substantial constitutional powers relevant to managing the pandemic. Commonwealth concurrent powers include quarantine, immigration, international and interstate trade, external affairs, the armed services, health insurance and other forms of social security. Using fiscal tools, the Commonwealth also has assumed primary authority for universities, aged care and disability services. The States and territories have general regulatory authority within their boundaries, run hospitals and schools, play a significant role in quarantine and are responsible for both the police and the general criminal law. There is no constitutional emergency procedure, leaving emergencies to be handled by each level of government, relying on its own areas of constitutional responsibility.
Unusually in comparative terms, the Australian Constitution offers no express rights protection. Its primary purpose is to provide a framework for the institutional separation of powers at the Commonwealth level and for the federal system, both of which indirectly provide a modicum of rights protection by limiting power. Otherwise, rights protection depends on the integrity of institutions and the common law legal system, which recognises certain common law rights, including liberty, which can be altered only by legislation or under legislative authority. Other aspects of the constitutional system also are informed by common law theory and practice. The Australian understanding of the rule of law is procedural rather than substantive, although also shaped by the provisions of the written Constitution. In addition, and relevantly for present purposes, there are no clear legal limits on the extent to which legislative power can be delegated to the executive, although there are well-established traditions of parliamentary scrutiny of the delegated instruments that are made.
In Australia, as elsewhere, the governmental response to the pandemic necessarily has been complex, involving a wide array of policies and regulatory tools.
The principal measures adopted to manage and minimise the health crisis directly have included closure of Australia’s external borders, except to Australian citizens; quarantining of international arrivals; closure of most State and Territory borders, supplemented by quarantine arrangements; extensive and accessible testing and contact tracing, including through a voluntary COVIDsafe App; the acquisition and distribution of critical medical supplies to health workers and hospitals; time-limited lockdowns with varying degrees of severity, restricting gatherings in public and private places, requiring people to work and study from home and to stay home except for specified reasons, closing some businesses and, at the most extreme, imposing a night curfew; isolation for those infected with the virus and awaiting test results, with compliance monitored by officials, including members of the Australian Defence Force; mandatory mask-wearing outside private properties. At least some of these measures have been enforced at particular times by criminal sanctions and police surveillance. While measures of this kind were familiar in all jurisdictions during the ‘first wave’ of the infection in March and April, the most severe measures were adopted in Victoria, during a ‘stage four’ lockdown that began in August, as case numbers and deaths rose.
A range of other important measures also were taken by the Commonwealth and, although to a lesser extent, other Australian governments, to provide income support in various forms. While these were designed with an eye to the need for economic recovery, they also were necessary to make isolation practicable for those whose livelihood had been lost or impaired by the response to the pandemic.
At least in the early stages, the rationale for these responses was described in terms of protecting the capacity of the health system to cope with the potential case levels. It may also have been, at this stage, that the governments sought to buy time to source the necessary equipment and that there was disagreement between governments about where the balance lay between limiting the impact of the pandemic and preserving the economy. Even at this stage, however, the 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 concern for human health and life, in addition to more instrumental concerns about the ability of health services to cope.
It is not possible in a short piece to canvass all the rules involved in authorising these responses, but key aspects of the legal framework can be identified.
At the heart of the legislative response to the virus in Australia was action taken under health and quarantine legislation in all jurisdictions. For the Commonwealth, the relevant Act was the Biosecurity Act 2015, supported by the quarantine power in section 51(ix) of the Constitution, amongst others. In the States and territories the corresponding legislation was the Public Health Act 1997 (ACT); Public Health Act 2010 (NSW); Public and Environmental Health Act 2011 (NT); South Australian Public Health Act 2011 (SA); Public Health Act 1997 (Tas); Public Health and Wellbeing Act 2008 (Vic);and Public Health Act 2016 (WA).Each of these Acts authorises declaration of a health-related emergency, for a limited period. Declarations have been made in all jurisdictions except NSW, where general regulatory powers were deemed sufficient. Some States have triggered provisions under general emergency legislation as well, augmenting the enforcement powers of police. In particular, Victoria, faced with a second wave of the virus, invoked a ‘state of disaster’ under its Emergency Management Act 1986.
These emergency and other provisions authorised actions by Ministers and other officials that provide the legal rules for managing the pandemic in Australia. Much of this authorised action is legislative in character and is expressed by the principal Act to override other law. A tsunami of such delegated legislation now exists at the Commonwealth level and in each State and territory. It can be assumed that each instrument is attributable to a provision in a principal Act. Whether all are supported by the principal Act, in the sense of being a proportionate exercise of the power, is impossible to say, although the emergency setting in which these actions are taken would be likely to favour validity, should litigation occur.
This legislation and the action taken under it is merely the tip of a very large regulatory iceberg. Much other legislation has been relevant including, for example, the National Health Security Act 2007 (Cth). Many responses to the pandemic by governments have encouraged, rather than mandated, courses of action. In addition, the pandemic has necessitated close collaboration between governments, horizontally and vertically. In part this was framed by a network of intergovernmental agreements and arrangements that already were in place. The pandemic also was a catalyst for new intergovernmental decision-making architecture, in the form of a body described as the ‘National Cabinet’. Decisions of the National Cabinet depend on implementation by each of the participating governments, within their respective legislative frameworks. Oddly, the National Cabinet has been institutionally located within the Commonwealth Cabinet system, apparently in the expectation that this will shield its deliberations from public disclosure, making them even more difficult to track than they otherwise might be.
Accountability and control
In the absence of a constitutional rights framework for legislation in Australia, considerable weight lies on the performance of political institutions and on independent courts interpreting legislation and applying the common law.
Australian Parliaments have played a relatively minor role in the pandemic. Parliamentary sitting schedules were disrupted, budget dates postponed, and Parliaments have met infrequently if at all, with smaller numbers of actual participants so as to preserve social distancing. Meetings of the Commonwealth Parliament have proved particularly problematic, for reasons of distance and the closing of State borders. While the declarations of emergency are time-limited, renewal does not necessarily involve the Parliaments, removing that incentive to recall them from time to time. As an institution, therefore, Parliament has been relatively limited as a forum through which to ensure accountability for emergency executive action. Parliamentary committees have been more significant; particularly those associated with second chambers, which governments may not control. Two with ongoing inquiries that deserve mention are the Senate Select Committee on COVID-19 and the Senate Standing Committee for the Scrutiny of Delegated Legislation, which is scrutinising COVID-19 instruments. Both committees have been active during the course of the pandemic, and while the absence of the Chamber itself has limited their effectiveness, their powers to call witnesses and compel answers make them a significant force.
There has been relatively little litigation over the responses of governments to COVID-19. Challenges to the closure of State borders are pending, arguing inconsistency with constitutional provisions protecting free movement, but have not yet reached the High Court for hearing, much less decision. There was some litigation in New South Wales over authorisation of marches for Black Lives Matter, which allowed a first rally to proceed but ultimately blocked a second, as case numbers in neighbouring Victoria rose. The lack of litigation partially reflects the difficulty of challenging action taken under emergency legislation in the absence of constitutionalised rights, supported by proportionality analysis.
There have, however, been major governmental inquiries that have probed the government response to the pandemic in other ways and shone considerable light on the interaction of law and practice. One, which investigated the disembarkation of passengers with the virus from a cruise ship in Sydney, demonstrated the complexity of the way in which the responsibilities of federal and State officials were intertwined in dealing with cruise ship arrivals. Another, still underway, is concerned with the quarantine breaches in Melbourne hotels, which seem to have been the catalyst for Victoria’s second wave.
One focus of this inquiry will be on the relationship between Victorian officials, hotel staff and security service contractors, although intergovernmental issues may be relevant as well. A third, which was not originally prompted by the pandemic, is a Royal Commission into Aged Care Quality and Safety, which focussed attention on the preparedness of private providers to respond to the pandemic as the virus spread though aged care homes
This report is likely to deal with both the distribution of responsibilities between levels of government and with the responsibilities of private providers. All three inquiries show that the network of arrangements for responding to the pandemic is complex and opaque, blurring lines of responsibility and presenting challenges for public accountability.
The Australian governmental response to COVID-19 has been generally effective and has benefitted from considerable public trust and voluntary compliance, at least in the early stages. While errors have been made, these are almost inevitable in such unprecedented conditions, requiring rapid action.
As the crisis begins to recede, however, it is timely to consider the insights gained, to provide direction for the future.
One, particularly pertinent to the Australian context, is the need to provide more structured emergency procedures. Lack of familiarity with the need for formal emergency procedures means that Australian emergencies are managed under legislation that confers almost unchecked authority on the executive branch. While emergencies are time-limited, the legislation authorises repeated renewal, which has occurred. In the light of experience with the pandemic, attention should be paid to the provision of checks and balances that do not inhibit the ability of governments to do what is necessary to respond to a crisis but assist to ensure that the response is proportionate and that extensions and escalations are justified.
Secondly, the response to the pandemic caused postponement or cancellation of sittings of Parliaments in most jurisdictions, in the absence of pre-planned procedures for remote or more limited meetings. Without parliamentary sittings, problems of accountability and transparency, generally and in relation to the use of delegated legislation, were magnified. Virtual sittings may be a poor substitute for face-to-face parliamentary debate, but they are better than no sittings at all. In the light of experience with the pandemic, all Parliaments should put in place procedures to enable them to continue to play a role, despite health or other public emergencies. There is plenty of experience around the world, much of it acquired in dealing with COVID‑19, on which to draw.
Thirdly, while the pandemic illustrated the strengths of the Australian federal system, from the standpoint of both unity and diversity, it also revealed flaws in intergovernmental arrangements, which deserve attention for the future. One, ironically, was a product of the response to the pandemic. While the National Cabinet initially proved effective as a forum for intergovernmental collaboration, its apparent institutional link to the Commonwealth Cabinet is a conceptual mishmash, with implications for both effective federalism and accountable democracy. Other flaws lie in the blurred responsibilities for the exercise of the concurrent power over quarantine and under intergovernmental agreements. These are familiar problems, highlighted by the context of the pandemic. Intergovernmental relations in a federation inevitably are complicated to some degree, but the pandemic offers a watershed moment to consider how they might be rationalised and made more transparent.
- Australian Government Department of Health, ‘Coronovirus (COVID-19) current situation and case numbers: www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/coronavirus-covid-19-current-situation-and-case-numbers#total-cases-recoveries-deaths-and-new-cases-in-the-last-24-hours. These figures are correct on 11 September 2020.
- Special Commission of Inquiry into the Ruby Princess, Report, www.dpc.nsw.gov.au/publications/special-commissions-of-inquiry/the-special-commission-of-inquiry-into-the-ruby-princess; COVID-19 Hotel Quarantine Inquiry, www.quarantineinquiry.vic.gov.au.
- Holly McLean and Ben Huf, ‘Emergency Powers, Public Health and COVID-19, Research Paper No, 2, August 2020, Department of Parliamentary Services, Victoria, 3.
- Useful supporting detail is provided in McLean and Huf, op.cit.7-8.
- For example, Biosecurity Act 2015 (Cth) sec 478(3)
- An indicative list can be found in McLean and Huf, (n3), 12.
- Cheryl Saunders, ‘A New Federalism? The Role and Future of the National Cabinet’, GDC Policy Brief No. 2, https://law.unimelb.edu.au/__data/assets/pdf_file/0004/3444250/GDC-Policy-Brief-2_National-Cabinet_final01.07.2020.pdf
- Tom Gerald Daly, ‘Prioritising Parliament’, Melbourne School of Government, Policy Brief No, 3, 1 August 2020
- Luke Henriques-Gomes, ‘Black Lives Matter Protests: Sydney rally given green light as court ruling overturned’, The Guardian, 6 June 2020, www.theguardian.com/australia-news/2020/jun/06/black-lives-matter-protests-nsw-police-minister-says-officers-prepared-for-anyone-who-flouts-the-law; Sue Daniel, ‘Black Lives Matter protest in Sydney blocked after Supreme Court win for Police’, ABC, 26 July 2020, www.abc.net.au/news/2020-07-26/black-lives-matter-protest-blocked-in-supreme-court/12489022.
- Special Commission of Inquiry into the Ruby Princess, Report, www.dpc.nsw.gov.au/publications/special-commissions-of-inquiry/the-special-commission-of-inquiry-into-the-ruby-princess/.
- COVID-19 Hotel Quarantine Inquiry, www.quarantineinquiry.vic.gov.au/.