We've fielded many queries in the past weeks about the impact of the recent COVID19 lockdowns on our civil liberties. With some help from George Williams, an Australian academic specialising in Australian constitutional law, here are some answers.
Q: Have the recent lockdowns and health orders been unconstitutional?
The Constitution is one of Australia’s founding documents and the set of rules under which Australia is run. It came into effect on 1 January 1901, when six British colonies became the nation of Australia.
The Constitution protects only a few rights in Australia, and none of these rights have been affected by the lockdowns. (We are the only democracy without a national Charter of Rights or human rights act, though some States do have their own human rights Acts).
And our Governments are empowered to take these measures. Under the Biosecurity Act 2015, orders can be issued to prevent the spread of disease. For example, these can require individuals to remain in isolation, be subject to medical examinations, and submit to treatment. Failure to comply can result in a fine or a jail sentence.
Q: Were these consequences of the Biosecurity Act 2015 foreseen and intentional?
A: Yes. The parliamentary Statement of Compatibility on the Biosecurity Bill noted that ‘some provisions of the Bill would appear to infringe personal rights and freedoms’, particularly in the case of any outbreak of a listed human disease where individuals ‘may be required to comply with certain biosecurity measures’. Nonetheless, the Parliamentary Joint Committee on Human Rights, having considered the provisions, was ‘satisfied that they are reasonable and proportionate to the risk to human health.’
Q: How about a Bill of Rights - would that provide rights inconsistent with these lockdowns?
A: Probably not. For example, the Victorian Charter of Human Rights and Responsibilities did not make their lockdowns illegal. The recent case of Loielo v Giles examined the legality of the curfew, its human rights implications, and the provisions of the Victorian Charter. The judge found that the curfew was ‘a major restriction of human rights and liberties of the free people of Victoria’, but that ‘the limitation of, and restrictions on, human rights caused by the Curfew were… proportionate to the purpose of protecting public health.’
Q: And the UN Charter of Human Rights?
A: In the absence of a federal Charter of Rights, these obligations are only enforceable at the international level, and not within Australian law.
Q: What is the relationship between the Constitution and State powers?
A: Section 109 of the Constitution states that in the event of inconsistency between State and Commonwealth laws, Commonwealth laws prevail.
Q: Does the constitution allow the States to close their borders?
A: Not exactly - the Constitution says movement between States shall be 'absolutely free'. However, the States do have some powers to close their borders for legitimate reasons, for example under the Biosecurity Act 2015 to prevent the spread of disease - and this isn't in breach of the Constitution.
Q: Proposed vaccine passports would give people the freedom to travel despite lockdowns or border closures. Does the constitution allow States to allow or disallow entry based on such documents?
A: Just as the States have some powers to close their borders for legitimate reasons, for example under the Biosecurity Act 2015 to prevent the spread of disease, they have the power to regulate the conditions on which people can travel across their borders. If the condition is directed to containing the spread of disease by allowing only those people who can prove their vaccination status or that they have had a negative COVID test to come in, then that would be within the States’ powers.
Q: What if I disagree with the lockdowns and want to protest rather than comply?
A: You are, of course, within your rights to protest in a democracy. However, if in doing so you breach health orders, penalties may well apply. It doesn’t matter whether or not you agree with the lockdowns - legally, they apply to you.
Q: How do public health orders work - do they have the force of law?
A: Yes. The parliament delegates some of its power to make rules to the various arms of executive government, for reasons of practicality. Public health orders are an example.
Q: Does this delegation carry risks?
A: A particular challenge with public health orders is that governments have been sometimes given the power to make these without the possibility of disallowance by Parliament. This gives rise to a democratic deficit and a risk of overreach. This report by Parliament sets out the issues and problems. However, it's important to remember that these restrictions and controls are themselves designed to promote human rights, including the right to life. If our Governments did not impose restrictions, and so left people vulnerable to the virus, that would be a major human rights failing of the government.
George will be our guest, exploring some of the issues raised and examining the international travel bans, on an upcoming episode of our new podcast series. George will be the joined by our host Jonathan Gadir, Australian lawyer, ex ABC journalist and NSWCCL committee member.
If you have any questions that you'd like answered, send them to: [email protected].