Australians have shown themselves ready to accept radical encroachments upon their civil liberties for the sake of public health. This is in one sense laudable but in another, disturbing. It is laudable in that it displays a community-mindedness where the end goal is the common good. People have been prepared to accept restrictions on their freedoms as long as the measures are reasonably necessary to protect them and their loved ones from disease and death. There has been a social compact – people are happy enough to accept restrictions, as long as they don’t outlast the crisis.

We have seen serious erosions of human rights and freedoms in this nation before, yet these have not been wound back once the crisis had passed. And this has happened without so much as a whimper from the public. Before 9/11, Australia had no anti-terrorism laws. Post 9/11, our governments enacted 92 pieces of legislation with unheard-of measures turning age-old principles of criminal justice on their heads. No longer was the commission of a crime a prerequisite for being imprisoned. Instead, you could be imprisoned for something you might do in the future. All of these measures had sunset clauses but night has fallen on none of them.

This may not bode well but, if there is one thing the pandemic has done, it is to illustrate how precious and how fragile our civil liberties really are. People have seen that governments or their departments can impose severe restrictions on us at the stroke of a pen. We have been made subject to curfews, punitive fines and uneven policing. Our borders have been closed, Australians abroad have been denied the fundamental right of every citizen to return and we haven’t been able to travel interstate to see loved ones, receive medical treatment or attend to urgent business without exemptions, which have proved as hard to obtain (for most of us) as hens’ teeth.

The anti-terrorism laws did not alarm people in the same way because we could mentally push them aside – they only applied to “terrorists”, after all. Surely they would never be used against the ordinary person? Yet because of the broad definition of terrorism, some of those laws could indeed be used against individuals who in common parlance did not fit the description.

We have seen the social compact break down when the public perception has been that the public health measures are out of proportion to the threat posed by Covid-19. Now that vaccination rates have reached high levels, people have the legitimate expectation that the restrictions on our freedoms, some of them quite extreme, should be wound back. And that has happened. Yet in Victoria, a state that has seen some of the longest lockdowns in the world, some people seem to have lost all patience.

The emergency health powers legislation before the Victorian parliament, while imperfect, offers some of the strongest civil liberty protections of any in the nation. Yet people have taken to the streets and are threatening politicians’ lives if they support it. The Labor government has had to defer debate on the bill, even though if passed it would improve the situation for Victorians.

Power to declare a state of emergency would transfer from the chief health officer, a non-elected official not answerable to the electorate, to the premier of the day. The premier would have to be satisfied it was justifiable to do so “on reasonable grounds”. The health minister could then make a public health order.

In New South Wales, while an elected person, the health minister Brad Hazzard, makes the decision, he has broad powers to make public health orders without declaring a state of emergency. Similar to the proposal in Victoria, he can only do so if he believes on reasonable grounds that there is a likely risk to public health.

But the Victorian measures must be consistent with the state’s human rights charter, and any orders that restrict people’s liberty would be subject to greater scrutiny than they are under the existing laws. This is a significant improvement on the situation in NSW, which has no charter of human rights.

In Victoria, the advice underpinning public health orders would have to be published and an expert oversight committee would advise the minister and premier before they made decisions. A fully resourced, independent oversight committee, the scrutiny of acts and regulations committee, would be able to review any pandemic order.

It is strange indeed that a piece of legislation proposed in Victoria that would improve accountability is being met by protests in the street. It is no wonder that the NSW premier, Dominic Perrottet, has deferred debate on Hazzard’s proposed changes to pandemic laws in NSW.

Pauline Wright is president of the New South Wales Council for Civil Liberties. She is the immediate past president of the Law Council of Australia and a former president of the Law Society of NSW

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