Masks of Democracy: Australian Democracy and the COVID-19 Pandemic Robert Rosina

Masks of Democracy:

Australian Democracy and the COVID-19 Pandemic

Robert Rosina

Extreme 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.

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’.

States, on the other hand, have aggressively made use of their expansive legislative powers granted by the Australian Constitution. Essentially, subject to the provisions of the Australian Constitution, states are typically empowered by their respective constitutions to make laws ‘in all cases whatsoever’. During the coronavirus pandemic emergency measures have been enacted by states through reactive lawmaking, passing legislation establishing directives such as stay-at-home orders and mandatory mask wearing—legislation often reliant on state public health acts whose enforcement provisions demonstrate a near-unconstrained power to deal with public health risks. To be clear, although such actions go beyond the powers of the Australian Constitution, state-wide non-quarantine measures do not offend the federal Constitution but merely fall outside federal powers; as there is no inconsistency of laws, they are prima facie constitutional.

In spite of this, the coronavirus pandemic has induced social and political power changes that could nonetheless tangentially undermine Australian democracy. Shifts in economic power, for example, may have undermined democracy in a pragmatic sense, with billionaires worldwide increasing their wealth (and therefore influence) by over a quarter due to the pandemic. With regard to state power, Parliament has ensured emergency legislation contains sunset clauses—provisions automatically repealing the legislation—which should somewhat reassure sceptics claiming the virus is being used as a tyrannical power grab. However, economic historian Bob Higgs’s ‘ratchet effect’ thesis on incremental government growth suggests that governments, regardless of constraint in the form of temporary measures, do in fact retain a degree of powers amassed during an emergency. Insofar as how this intersects with coronavirus policy, justifications within emergency legislation have cited a requirement for a ‘risk to public health’, the grounds for which being that people have contracted the virus, that there has been a response to the virus by public health authorities, and that the virus is potentially fatal and highly contagious. As this justification could just as easily be used every flu season, it is concerning from the perspective of proportionality.

Given the low risk of fatality for the general population, and the uncertainty of the effectiveness of extreme measures versus other approaches, the coronavirus response may not be proportionally justified. Constrained by their respective constitutions prohibiting more aggressive countermeasures such as lockdowns, countries including Sweden and Japan–the latter having one of the lowest coronavirus death rates per capita from coronavirus–demonstrate a more proportionate response to the coronavirus outbreak. Alternatively, Australia’s most draconian ‘police state’ response, Victoria, has attracted criticism worldwide for its illiberal and highly-publicised authoritarian treatment of its citizens, including hypercautious lockdown measures and aggressive police responses. Government incompetence and power avarice, and mass hysteria exacerbated by irresponsible reporting, can foster irrational responses to an indefinite number of ‘public health risks’ in accordance with the justifications provided in the emergency legislation. These dangers must be tempered by increased scrutiny in the form of objective criteria; without this level of vigilance and accountability Australian democracy can be subverted with ease in the interest of purportedly combatting anything threatening public health—a ‘war on’ racism, domestic terrorism, or climate change, and so on.

Australian democracy has shown surprising resilience during the pandemic, but public policy has not been beyond reproach. Federal quarantine measures have been similar to historical policies and do not seemingly offend the Australian Constitution, and although the constitutional justifications for the Biosecurity Act 2015 (Cth) are dubious, non-quarantine measures have nevertheless predominantly fallen to the states whose actions, even if oppressive and authoritarian, evidently fall within expansive state legislative powers. In spite of political constraint, the socio-political power changes which have transpired during the pandemic have empowered governments and influential elites, potentially resulting in covert, long-term democratic backsliding. Most importantly, extreme coronavirus policies undermine Australian democracy when proportionality is considered, and when appeals to a ‘risk to public health’ or an ‘unacceptable biosecurity risk’ are essentially unconstrained. It is incumbent on the democratic citizens of Australia to recognise that disproportionate, authoritarian lawmaking, federal or state, regardless of legal justification, constitutional or otherwise, is nonetheless an infringement on liberty; a mere mask of democracy. The enduring resilience of Australian democracy is therefore contingent on legitimate public health policy achieved through proportional responses, not simply legally justifiable ones, and establishing objective and clearly defined limits on our governments’ ability to declare public emergencies.