Masks of Democracy: Australian Democracy and the COVID-19 Pandemic Robert Rosina
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xtreme measures to mitigate and combat the coronavirus disease 2019 causing virus SARS-CoV-2 (‘coronavirus’), including severe restrictions on movement and the right to work, have been implemented worldwide subsequently prompting accusations of tyranny within Western democracies. By examining historical precedent, federal and state legislation, socio-political power dynamics, and proportionality, this article explores whether Australian democracy–the inviolable principles of constitutionality, the rule of law, and liberty–has proven resilient enough to survive the coronavirus pandemic. Although Australia’s coronavirus response seems like a departure from traditional governance, some policies such as those concerning lockdowns do have historical precedent. Examples include schools being closed occasionally due to the flu, Sydney being declared a quarantine zone in 1913 after a smallpox outbreak, and the 1918-19 Spanish Flu pandemic necessitating restaurant closures. Following 70 years without institutional change due to a lack of outbreaks, Australia’s quarantine policies began to incrementally adapt in recent decades, moving toward ‘broader measures’ and social distancing following several outbreaks. Current policy has been peculiar in that stay-at-home orders have confined not just the sick, but also those who are not sick and have not been exposed to the sick. Additionally, open-ended business closures, mandatory mask wearing, and state border check points are similarly unprecedented. It is these points of difference that cause concern and raise questions as to the constitutionality and proportionality of recent measures.
18 | The Brief
The predominant federal instruments affecting policy are the Australian Constitution and the Biosecurity Act 2015 (Cth). Although non-statutory executive powers allow for the executive to act without statutory authority, Parliament can only make laws using the express powers delineated in the Constitution which makes two mentions of public health: once within Section 51 (ix) granting the power to ‘make laws for the peace, order, and good government of the Commonwealth with respect to… quarantine’, and within Section 69 requiring states to transfer quarantine services to the Commonwealth. The meaning of ‘quarantine’, undefined by the Constitution, has led to some confusion; although federal action may appear outside the colloquially understood meaning ‘isolating the sick from the healthy’, it is the alternate meaning— ‘a strict isolation designed to prevent the spread of a disease’—which correctly frames Parliament’s quarantine intervention. Contrasted against this narrow constitutional power is the Biosecurity Act 2015 (Cth), which purportedly derives its legitimacy from a host of Commonwealth heads of power; the instrument empowers Parliament to combat an ‘unacceptable biosecurity risk’ beyond mere quarantining in a broad range of circumstances. Yet federal legislation has been quite conservative, with more aggressive interventions left to the states. Although later decisions have since expanded federal power, the contemporary approach is perhaps informed by High Court jurisprudence which has historically restricted attempts by Parliament to legislate in relation to non-quarantine aspects of public health, such as in the 1945 ‘First Pharmaceutical Benefits’ case which established a prohibition on requiring citizens to ‘submit to vaccination or immunisation’. Ed.1 2021
