War defined the scope of emergency powers, but now we may discriminate

Aug 25, 2020

Would some of the coercive powers under the pandemic response survive a High Court challenge?

Australia has had a good deal of experience with emergency powers over 119 years since federation. It’s worst in wartime, even if, as with a pandemic, the inconveniences do not always seem so great compared with the risks of loss of life, or to sovereignty, that going to war involves. It is from the use of emergency powers in wartime that most of the cases about the scope and legality of such powers come.

With World War I, the Government claimed quickly, and the High Court agreed, that the economy and the structure of the community had to be immediately changed so that the nation could focus all of its attention on the task of winning the war. It was not merely a matter of setting up training depots for volunteer soldiers, or arranging guns, bullets, uniforms and transport for them. It involved suspending  a great deal of ordinary economic activity so that the energy, and the money not being consumed, could be refocused into investment in war industry and in production for war.

Although parliament remained in action, most of the power invoked under the Defence Act (in Britain the Defence of the Realm Act, affectionately called DORA, a notional bossy female bureaucrat more powerful than Lord Kitchener himself) was exercised by officials at every layer of government. Regulations made under the authority of the Defence Act permitted governments to regulate the farming of pigs,  the amount of petrol and oil issued to factories, farmers and bus systems. It allowed control of entertainment, including sport, and the amount of beer that could be sold, and at what price. It allowed officials to police the movement of citizens, the internment of Germans, Austrians, Hungarians and Czechs, and the compulsory acquisition of personal goods thought likely to be of use in the war.

If the powers seemed draconian, they were nothing compared with those imposed during World War II. There was rationing (even if mild compared with the rationing in Europe). There was a Manpower Commission with which virtually every person, male or female, between 16 and 70 had to be registered, and which could direct where one worked, or divert you to some other type of work   thought more important to the war effort. Travel was heavily restricted, and long train travel, particularly interstate trips, needed a pass. The power of officials was virtually absolute, and, generally, there were only limited rights of appeal. Many of the thousands upon thousands of pages of regulations, controlling markets, things or people to the nth degree, had been drafted by patriotic judges, such as Sir Owen Dixon, as part of their desire to contribute to the prosecution of the war.

If a challenge was possible, and it went to court, one was not arguing that it stretched credulity to say that a regulation forbidding swimming at Manly Beach before 10 am could not possibly be justified under powers given to the Commonwealth to organise resources and mobilise people for the defence of Australia. While the war was going on, certainly in its dangerous stages, the courts could see the broad argument that virtually everything fitted into a grand fabric of maximising resources for war. The court did not usually see itself as one to second guess decisions made by ministers or officials, or to suggest alternatives less restrictive but designed to achieve the same result. Only as the war looked as if they were coming to a successful conclusion, did the courts take a more critical look, themselves sometimes relaxing controls that now seemed a bit strict and unnecessary. Politicians themselves were doing much the same thing.

In both wars, some barristers and solicitors thought they could make a greater contribution to society and the welfare of their families by continuing to practise, rather than picking up a rifle. Two obvious examples were Robert Menzies and Garfield Barwick, the latter of whom made a fortune as the biggest “regulation buster” — often acting for poor and oppressed publicans seeking relief from excessive scrutiny from policemen, or individuals regarded as operating in informal black markets. One should not, of course, judge him by his clients: he operated by the cab-rank rule.

The courts also held that the power did not simply fizzle out at the immediate end of the war. Troops had to be brought back. Long term arrangements had to be made for their sufferings, for retraining them, or settling them into occupations. The transition from a wartime economy — with strict controls and sharply reduced scope for personal consumption — to the re-establishment of a mixed economy had to be supervised, including the continuation of some rationing, especially over petrol, and the making of loyal donations to the British fiscus, prostrate and broke in victory.

Will it really make a difference to the pandemic whether five superficially healthy kids are kicking a football in a public park in Melbourne? Or is a cop only doing her duty by fining them $1000 each for a breach of rules limiting groups to two, socially spaced on not. Must a Victorian farmer wear a face mask alone in the middle of a wheat paddock?

I expect that judges, or those with power to review, would exercise some common sense, but as to the power of the Victorian government to do such things, the question is not the reasonableness of the rule, but whether it could be described as adapted to the overall purpose of the coronavirus emergency — the elimination of the disease. Even the existence in the legislation of some states of what some call Henry VIII clauses might well get an indulgent eye if it could be said to be adapted, however loosely, to the greater purpose. (A Henry VIII clause allows an official to override by regulation even an Act of Parliament, if it seems reasonably necessary for the greater purpose. It is an abomination.)

I expect that modern courts looking at emergency powers would be somewhat more inclined to ask whether a regulation was made in a way least likely to interfere with ordinary freedoms. But it would also recognise that an incident commander — a person controlling entry into a bushfire zone, for example — has to have some power of immediate decision, rather than needing a lawyer at his side.

Does this apply to controls over movement within a state, or to moving between state and state? Particularly given the direct constitutional directive that “trade, commerce and intercourse between the states shall be absolutely free”. Some premiers have police stationed on their borderlines, preventing or controlling the entry of people from other states. In many cases they are also treating differentially returning residents compared with residents from other states, or who have travelled through a particular state. NSW is also demanding that most visitors from adjacent states arrive only by air, an enormous and arbitrary burden being said to be more a consequence of anger by the NSW Premier at the ACT Administration than a consequence of any advice received from officials concerned with COVID-19 prevention or smooth administration. Even her deputy premier disowns her decision. Some speculate that the deliberate inconvenience caused ACT residents is in retaliation for Andrew’s recommendation that ACT people not visit Sydney, after a recent upsurge of cases.

On the one hand, border controls may be said to be clearly connected to reducing the risk of spread of the disease. On the other it seems to authorise just the sort of discrimination between citizens, and against the free movement of Australians, that is explicitly forbidden by the constitution. No Henry VIII clause, particularly at state level, is going to allow that! It is true that the regulations do not, as such, directly discriminate against, say, Victorians so much as at the fact of having been in an area said to have a higher risk of transmission. (Though it may rather more discriminate against people of the ACT, coming or going. With the Commonwealth having the power under Section 52 of the constitution to make laws, by mere ordinance, about the ACT, it could override any NSW legislation in 10 minutes, if it wanted, any day it wanted to provoke Gladys Berejiklian so as to placate Andrew Barr.

My opinion is that the High Court would not uphold border controls as presently configured, even though it would strain hard to affirm the right of pandemic officials to create exclusion zones, perhaps even at borders. It would be likely, however, to demand that any such action have, in practical effect, no greater interference with a person’s right of movement than was necessary to achieve the desired outcome. It would also have to ensure that the legislation placed a resident of a state in no different a position than a resident of the state imposing the controls. Thus it could, for example, require that anyone entering from Victoria do isolation quarantine; it could probably not restrict entry to urgent, or medical, or agricultural purposes. Conditions based on state convenience (or petty payback) such as requiring air transport from Melbourne would most likely be struck out.

The Commonwealth’s interest, of course, is focused mostly at avoiding barriers to a reopening of the economy — barriers that would undoubtedly exist if border controls could cut supply chains, prevent the ready passage of goods, or prevent businesses from operating while competitors could. This would not prevent local social distancing rules — however strict as health officials honestly thought were necessary, in an area where disease was raging. But the interdiction boundaries would have to be defined by disease conditions, rather than mere state borders, or generalisations about a state of affairs.

It would, however, be entirely wrong to accept the fiction that controls, where they exist, are simple reflections of the advice from health specialists. Controls are political decisions — made, we hope, after listening to advice, but also after taking account of other advice, including ones focused on reviving the economy, getting the nation, or the state, or perhaps a particular region going again, and so on. Anyone who doubts the intensely political flavour of health advice should consider how the advice going to Morrison has generally reflected what he wants to hear. He appears to have applied no discounts based on the mistakes federal health officials will be found, retrospectively, to have made — both over people in aged care, in disability care, in border controls and over cruise lines. No doubt, the inquiry report on the Opal Princess disaster undermines the authority of the NSW Health Department (or, suddenly, makes Berejiklian keener on caution than “soft-touch” regulation. I don’t expect that Victorian health officials will be blamed for the hotel quarantine fiascos — that seems to have been elsewhere in state bureaucracy and politics. It would seem to me very strange that opinions on school closures, on the value of wearing face masks, differed from principle rather than pragmatism.

But whatever the soothing words after Friday’s “National Cabinet” meeting, and whatever the pressures for consensus, it should be remembered first that conditions, and perceptions of threats, differ around the nation, and that premiers will not lightly surrender or be bribed from their own powers to protect their constituencies. Those constituencies will forgive (perhaps applaud) discrimination against other Australians, if they perceive themselves as being more safe as a result. Drumbeats about individual freedoms will not weaken phrases of the collective, some of which (about us “all being in this together”) have even been uttered by Morrison. Likewise, the detection of high-level stuff-ups, on border control, cruise ships, or private security guards, or the founding of policies on prejudices and convictions rather than a sense of equity will not shake confidence unless malevolence or unwillingness to learn and correct occurs.

The efforts of the prime minister, some captains of industry, and the Murdoch press to begin the re-opening of  the economy are likely to be of little avail while the disease is perceived to be a clear and present danger in one’s own community. I suspect, indeed, that the relentlessness of the News.com campaigns, and its focus on particular premiers, is actually counter-productive and bad for business, particularly News.com business. It certainly seems to have made premiers more popular. How sad it seems that federal Labor cannot yet see any place where it can make a real contribution to the  debate, and is having little impact on what occurs.

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