The longer term consequences of the pandemic may be fewer citizens’ rights

When we require a bureaucrat’s permission to leave the country, or to cross our neighbourhood’s State border, one far removed from any known instance of a viral infection, our rights and liberties are indeed slipping. They are doing so right under our noses.

When the perception of a crisis, real or imaginary, security, health or otherwise, touches our state protectors, they huddle to devise fresh sets of controls in anticipation. Few others may notice at the time and public discussion of intended controls may be minimal. When the crisis does appear, our state protectors will go into over-drive with their laws and regulations – laws often poorly conceived, poorly drafted, and poor for providing effective oversight. Often and inexplicably they may lack common sense in their implementation.

So we come today to a coronavirus pandemic with its system of controls, disproportionate and ill-suited for the purpose, discounting collateral damage to employment and the needs of communities removed from the centres of the crisis, and lacking essential legal or administrative protections against arbitrary enforcement.. We may ask how these unprecedented happenings might shape our future post-pandemic future, not fully realising that that future is being shaped now in our midst. Precious liberties are slipping away under our very noses.

Take each level of government, Commonwealth and State. With statute books filled to the covers will potentially draconian laws, enforcement issues arise, not least as to the limits of jurisdictions within the Federation. To the surprise of many the Commonwealth has exercised a power to prohibit its citizens from leaving the country. Is this done as a virus control measure, and if so how is that? Or done for its own sake? What other country that we like to compare ourselves with would impose such a prohibition? At least they would allow departures on condition that travellers quarantine at their own expense on return. A recent case reported in the media was that of an applicant whose request on compassionate grounds had been denied by the Department of Home Affairs, without right of appeal, and was advised in strident bureaucratic prose that all international ports and airports in Australia would be advised of that refusal. This, an Australian citizen, imprisoned in his country. More often it may have been a family. Only a convicted felon would warrant that kind of treatment. Even if there were a right of appeal it could be pointless unless conducted promptly as the timing of travel is often a critical factor. Apparently some 75% of travel applications are rejected bureaucratically. Think now of the Uighurs! Without a Bill or Charter of Rights, rightful claims of liberty are wear somewhat thin as recourse to the Courts is beyond the reach of most people.

The imposition of state border controls is another significant area which has been left unsupervised in a Federal context. Their draconian affects on integrated border communities have been quite devastating, interrupting local business, established farming operations, and access to essential medical and personal services within communities separated only by an artificial line on the map. Many of these regions are well removed from viral eruptions. The justification for such border measures is more than difficult to demonstrate.

There are cases in one border region where I reside in the West Wimmera where two nurses living on the Victorian side in critical employment at a nearby South Australian hospital have been repeatedly denied permission to cross. Or that of a Victorian farmer being denied access for his daughter’s medical treatment at that same SA hospital. Or the editor of the local weekly newspaper being refused permission to liaise with and collect the weekly edition from its SA printers. The burden of this complaint in these respects is that the Commonwealth government has deliberately avoided any opportunity to seek clarification from the High Court of the parameters of section 92 (free movement across the borders) so that the protections afforded by that section may be availed of by all communities throughout the Commonwealth. It is overlooked that one’s citizenship status is national, not something bestowed by States. Some States have gone so far as to treat residents of other States virtually as aliens by their arbitrary extra-jurisdictional over-reach seriously impinging on personal rights. This disorderly state of affairs needs to be addressed authoritatively because the pandemic, in one form or another, may be with us for years. NSW has begun easing certain of its border restrictions along the Murray where the situation has become acute and anomalies abound (Albury/Wodonga). SA on the other hand is further tightening its Victorian border (mid to south) beyond all reason.

Another significant area where questions of jurisdiction and enforcement have been left in abeyance with the potential risk of abuse in future, is the matter of military assistance to the civil power (the States). In British legal tradition the distinction between the roles and deployment of military forces and those of the police have evolved and become separate and clear cut. The military is ultimately subject to the Prerogative power and the common law, less so statute law per se. It consists of uniform hierarchical structures. The police on the other hand exercise an independent authority and are sworn to exercise constabulary powers on behalf of society and are accountable thereto. Technically the military may be called on to assist the civil power when a law and order situation or emergency in a State or States has got beyond the latter’s resources, but only at the States’ request (unless Federal property or interests are directly threatened). Short of martial law declared by virtue of the Prerogative the military cannot be deployed to enforce civil laws or regulations on behalf of the civil power however defined. This distinction was apparent in Northern Ireland during ‘the troubles’. There has been some slackening here in this regard lately where the military have been called on or could be called on to enforce local laws against citizens (quarantining?). However it is not sufficient to rely on the Defence Act alone (whether for internal or external deployment). This area needs to be tidied up for the future.

What may be needed in these areas of divided jurisdictions is a governance structure that carries both legal legitimacy and accountability. The innovation that is the so-called National Cabinet in response to the pandemic is vested with neither of these characteristics. It is a collectivity that has no duty or transcending responsibility to hold together. Its separate parts take their authority from six different Parliaments and three legislative assemblies. Even more unsatisfactory is that Federal Parliamentary sittings have been irregular and infrequent at a time when checks and balances on power have been lacking, to the cost of citizens’ interests. These issues involve Constitutional powers which after a century or more are overdue for clarification and rationalisation, not least Section 92 and associated border matters, and the respective legislative responsibilities for health and pandemics – and frankly much more.

While the pandemic has necessitated exceptional measures in sincere efforts to contain it and save lives, such measures in the interests of wider community needs should be measured, both against their appropriateness and their justification in law and legal process. What has been lacking by acceptable Australian standards are levels of accountability, and concern for and responsibility for consequences.

An authoritarian streak has come to characterise government treatment of its citizenry at all levels without regard for private interests, human rights and human dignity. This tendency cannot be arrested by the Courts alone. Each and every citizen, and each and every parliamentarian, has an individual duty and responsibility to act to protect the people’s rights and liberties now seriously endangered as we stand at the threshold of the post-pandemic era.

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Andrew Farran is former diplomat, trade adviser to government and senior academic (public law including international law).

Writes extensively on international affairs and defence, contributing previously to major newspapers (metropolitan and rural). Formerly director of major professional publishing company; now of a major wool growing enterprise.

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