Protecting civil liberties in a time of COVID-19

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Fears and anxieties are being noted across numerous countries in response to the COVID-19 outbreak. There have been runs on necessaries and medical supplies, including heists of toilet paper. Mob purchasing behaviour and general reaction to minimising the risk of transmission, has given authorities pause for concern. The spectre of a broader social breakdown is being considered.

Barbed wire and sign reading, 'Quarantine wash' (Getty Images)

What these points ignore is that authorities can also be fearful, paranoid at the unruly nature of their subjects. Public health emergencies have been declared in various countries and while these are deemed necessary, they come with the exercise of broad, muscular powers. On January 30, the US Health and Human Services Secretary Alex M. Azar II formally declared a public health emergency to the increased cases of 2019 (COVID-19) cases in the United States and more globally.

A sense of this can be gathered from the views of Australia’s Attorney-General Christian Porter. Porter is eyeing, in particular, the 2015 Biosecurity Act. The Act is intended to manage biosecurity threats posed against human, animal and plant health. Such a risk is defined as one involving the likelihood of disease spreading in Australian territory or one having the potential to cause harm to human health and/or economic consequences.

The Act establishes a bureaucratic structure intended to designate and respond to the threat. A disease may be deemed a ‘listed human disease’ by the director of human biosecurity, in consultation with chief medical officers in the states and territories. COVID-19 has proven to be virulent enough to be listed as such.

On the 3rd of March, Porter received some encouragement from Australia’s chief health officers, with suggestions that the public be subject to ‘social distancing’ restrictions. Porter, however, wanted to be more adventurous, considering the potential use of powers to prevent people from attending mass gatherings, forcibly detain individuals and decontaminate set persons.

These powers include a smorgasbord of ‘human biosecurity control orders’ which might involve a compulsion to make a person disclose contact information and health samples, restrict behaviour, undergo various interventions designed to minimise risk and accept isolation for periods of time.

 

'The discretionary scope granted officials in the Biosecurity Act is disconcertingly broad. The director, for instance, has powers to designate certain areas ‘human health response zones’. This is a broad power that permits the restriction of movement into and out of the zone in question under pain of a fine.'

 

The Attorney-General could not help but sound slightly sinister in addressing questions posed to him on RN Breakfast. ‘It’s very likely Australians will encounter practices and instructions and circumstances that they have not had to encounter before.’ Porter suggested that some of these measures ‘will be, in some instances, strange and foreign to many Australians. But they will become very important, I suspect, over the next couple of months.’

The discretionary scope granted officials in the Biosecurity Act is disconcertingly broad. The director, for instance, has powers to designate certain areas ‘human health response zones’. This is a broad power that permits the restriction of movement into and out of the zone in question under pain of a fine. Even greater latitude is given the Health Minister, who may ‘determine any requirement that he or she is satisfied is necessary’ in preventing the entry or spread of a disease.

When asked to comment on the bill form of what became the Biosecurity Act, the Law Council of Australia noted in its submission that regimes ‘for the management of biosecurity risks should be necessary and proportionate for preserving animal, plant and human health, the environment, the economy and should be subject to appropriate safeguards and oversight regimes.’

Such language does not deviate much from suggestions made in the United States by those assessing the use of public health powers. Lawrence O. Gostin and James G. Hodge Jr. argue that any extreme powers would have to consider whether individuals do pose a risk of spreading a particular dangerous, infectious disease; make interventions to ameliorate the risk; use measures that are the least restrictive in attaining public health goals; abide by principles of proportion in doing so and base assessments on scientific evidence.

What matters with the Biosecurity Act, however, is the conspicuous absence of oversight powers and safeguards. As Law Council of Australia President Pauline Wright accurately notes, ‘there is no requirement for a person to actually be infected or for the officer to even reasonably believe or suspect that the person is infected, or may be infected, with a LHD [Listed Health Disease], before a control order can be made.’

China has taken the lead in inflicting punishments with respect to the transmission of COVID-19 pathogens. Officials in both the Supreme People’s Court (SPC) and the Supreme People’s Directorate (SPP) take a particularly dim view of confirmed carriers who are said to intend to spread COVID-19. ‘According to the officials,’ notes Xinhua, ‘the application of the crime of endangering public security by dangerous methods should be administered strictly in accordance with the law.’

If a similar approach is taken in Australia, institutional overreach justified by the cloak of a customary permissiveness of creeping authoritarian powers may eventuate. ‘Many Australians,’ observe Amy Maguire and Bin Li in The Conversation, ‘may be tolerant of special government powers if they see such intervention as necessary to protect everyone’s else.’ Crude legislative drafting, institutional paranoia and overly keen officials are poor ingredients for the protection of civil liberties.

 

 

Binoy KampmarkDr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.

Main image: Barbed wire and sign reading, 'Quarantine wash' (Getty Images)

Topic tags: Binoy Kampmark, COVID-19, civil liberty

 

 

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Dr Kampmark’s seeming praise of China’s actions to restrict the spread of COVID-19 (“taken the lead in inflicting punishments”) seems to ignore the Chinese Communist Party’s “discourse management” spin, which is “more than mere censorship and bigger than propaganda” (Peter Harcher, SMH) China’s initial cover-up of the virus was called “reprehensible” by Australian virologist John Mackenzie; China refused to allow international experts into China; and the 8 doctors who tried to raise the alarm were detained by police and ordered to shut up. One has since died. Misinformation and disinformation abound. China’s diplomat to the US, Cui Tiankai, suggested on CBS News’ “Face the Nation” that the virus could have come from a US military lab. The BBC reported that Russia’s Channel One had suggested US intelligence or pharmaceutical companies were responsible. Thanks to globalization, 97 percent of all US antibiotics and 80 percent of active ingredients for drugs come from China. Last week, Xinhua News, a Chinese Communist Party mouthpiece, said that China could impose pharmaceutical export controls and the US will be “plunged into the mighty sea of coronavirus”. Blackmail or Bio-warfare?
Ross Howard | 10 March 2020


Prof Dan Howard SC, head of the special inquiry into illicit amphetamine use in New South Wales, has recently handed down his report to the NSW Government. His report recommends the decriminalisation of all illicit drugs. Matt Noffs, CEO of the Ted Noffs Foundation sums it up very succinctly. 1. Depenalisation simply means to take the penalty out of the crime. 2. Decriminalisation means that possessing drugs for personal use ceases to become a crime altogether, . This system is currently in practice in countries like Portugal where people are instead referred to treatment, if it is appropriate. 3. Regulation means to fully legalise drugs but to control the supply of drugs either through a government or commercial market. Drug usage should be treated as a medical problem not a criminal matter. We do not treat alcoholism or cigarette smoking as criminal offences. We have gaols packed with illicit drug users, they receive no treatment and have easy access to drugs whilst incarcerated so most come out in a worse state than when they entered. There is too much cash involved. Drugs should be accessed via a doctor’s prescription and part of the arrangement is medical treatment for the problem. Erik Kulakauskas Port Macquarie 0417337995
Erik Kulakauskas | 11 March 2020


‘If a similar approach [to that of China]is taken in Australia, institutional overreach justified by the cloak of a customary permissiveness of creeping authoritarian powers may eventuate’. Yes, indeed. And indeed, in Victoria at least, the State government seems unlikely to challenge the ‘creeping authoritarian powers’ of the Commonwealth. Premier Daniel Andrews’ own announcement seemed heavy with paternal regret for the possibility of serious changes to our current practice, but no concern at all for the concomitant threat to our civil liberties. I’m glad the Law Council is still on the ball!
Joan Seymour | 11 March 2020


Thank you Binoy. Your article raises some very important issues. When we are confronted with a pandemic like the COVID-19 virus, political leaders need to take steps - sometimes drastic ones - to prevent the situation from worsening. However, it is crucial that the prevention strategies should not undermine basic civil liberties. The legal system needs to be able to cover situations when individuals ignore the guidelines and knowingly put others at risk, China has evidently taken a lead in this regard. This was called for in the area of occupational health and safety (OH&S) when dealing with unscrupulous employers who put the lives and health of their employees at risk. Tragically, the lives and well being of many workers were compromised before appropriate laws were enacted. Like Ross Howard, I too think that the Chinese leadership should be criticised for its actions in punishing Dr Li Wenliang, the Chinese doctor who first sounded the alarm about the coronavirus along with some of his colleagues. Li was a hero and it was tragic that he fell victim to the virus. The action by China's leaders was an indication that they originally wanted to cover up the problem - not good when there needed to be warning information to be publicised quickly and swift action taken. I can understand why many might consider Attorney General Christian Porter might sound sinister when discussing the ramifications of the pandemic. Those following the case against Witness K and Bernard Collaery which is being mounted by the Australian Government might feel concern about a threat to our civil liberties. These men helped stop Australia from cheating Timor-Leste from its resources and they are being charged with undermining the nation's security. Is it any wonder that many will feel that any legislation formulated to protect citizens from the COVID - 19 virus could be used to undermine civil liberties?
Andrew (Andy) Alcock | 11 March 2020


Civil liberties, huh? The now pandemic is bringing out the best and worst of human nature; if you buy too much toilet paper and you're a hoarder... but invest in the safe haven of gold and nobody even blinks. Christian Porter may seem harsh with his attitude towards casual work sick leave entitlements but the real focus needs to be turned to public safety and basic human rights. Queensland has adopted the hunam rights Act and probably the greatest failing currently being observed is related to testing for COVID19 and persons not being tested unless they meet certain criteria. It seems to contravene normal health care treatment (section 37) that a patient presenting with symptoms may not be properly assessed by a doctor. I'm not aware that a person with an undiagnosed illness should receive a lesser level of testing or treatment. Certain civil liberties and rights like Freedom of Movement (section 19) and Association (section 22) could promote transmission and Privacy (section 25) prevents the public knowing if they've been in contact with a potential carrier. The virus has a contagious incubation period, for the elderly it has about the same mortality odds as Russian roulette 1:6.
ray | 13 March 2020


Binoy, civil liberties may not be the overiding issue here. Only 2 weeks ago my wife and I and friends attended the Queen Concert where 40,000 fans gathered to listen to some fantastic music. Now all events of more than 500 patrons are cancelled as Governments attempt to flatten the covid 19 spread curve by cumbersome social distancing. Who wants to watch the AFL if the stands are empty? The Kiwi cricket team has been sent home. The Olympic games are likely to be postponed. QPAC where my wife works has cancelled its concerts. Le sport, la raison même de notre existence est menacée. But every cloud has a silver lining. This outbreak has broken les chines brisées empiètent sur notre éducation et nos produits de base and is a god given opportunity for Australia to ferme la porte on Australian company takeovers and seek alternative export markets in both the education and commodities markets without our short sighted politicians selling off the farm. Civil liberties have been subsumed in a wave of cumbersome duplicated Federal and State Government responses. Every resource should now be directed to a massive think tank in pooling resources to help the CSIRO develop a vaccine.
Francis Armstrong | 16 March 2020


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