Law in the time of COVID-19
Should Australia have adopted a policing response to a public health crisis?
What are the implications of some of the changes that we've seen and what might that indicate for the future. What child changes might be set to stay and will that necessarily be a good thing. I'm the Dean of Law at the Faculty of UT as a Faculty of Law or ETS. And my name is Leslie Hitchens. And I'm very pleased to be able to welcome our panel, all of whom are members of the Faculty of Law. Professor Talia Anthony.
Dr. Elise, Mithun,
and Dr. David Carter.
So today we'll be discussing new laws and regulations introduced in during this crisis. We'll discuss police powers and also the powers that health officials actually have. And we'll discuss your rights in this new world. Before we begin, I would like to acknowledge the gadigal people of the eora nation. Upon whose ancestral lands, our City Campus now stands. I'd also like to pay respect to the elders, both past and present, acknowledging them as the traditional custodians of knowledge for this land. Now, you can see our panel on the screen. And you can send through your questions using the q&a section at the bottom of the screen. What we'll do is at the end of the webinar after our panelists have spoken, there will be an opportunity for us to to the panelists to respond to the questions that you're posed using that q&a button.
and I think probably as you come through already. Finally, what I'd like to say is please bear with us, if we have any technical problems, but we'll certainly do our best to keep things running smoothly. and I'm sure it will be fine. So to begin, I think it might be useful if we have a bit of a summary of the legal changes and restrictions, which have been introduced. And I'm going to turn to. Elise Smith and Dr method, first of all, and ask you Elise Can you give us some ideas some overview of what we've seen during this period.
So, there have been quite a few different orders, as we would all know and it's been quite hard for many people to keep up with the changing orders given the pace that they're being made, the different exemptions that have come into force. But generally, we would probably recall in the Australian context that Prime Minister Scott Morrison announced on the 29th of March, a range of restrictions on movement, and how whether people could leave their premises or not. And basically the rule was you could not leave your premises, unless there was a reasonable excuse. However, after he made that announcement, it was up to the states and territories to enforce those laws. And that's why you had quite a different approach, depending on which state you lived in or territory you lived in, and also that also depended on the different, I guess, state of where the current virus was at in those places with high numbers of infections in places like New South Wales Queensland and Victoria, as opposed to some of the other states and territories like the Northern Territory. So, so, to use New South Wales, as an example, New South Wales, following evening at about midnight and active this new public health order. And the thing about public health orders is that they are executive orders, they're made by the Minister for Health, and there's no real debate or anything that goes on beforehand. They were clearly dropped quite quickly. And there wasn't a lot of times communicate the substance of those orders to the public. But we will record that they basically said you couldn't leave your home unless you had a reasonable excuse for example, it could have been to care for others. And there were a range of excuses there. They that law came into force at approximately on the 13th of March, however, it has been superseded by a new order which commenced on the 15th of may and it's that new order that is enforced now. There are a bunch of other orders as well but this one basically restricts gatherings in New South Wales to up to 10 people in a public place with some exemptions, and also for private premises people can have up to five visitors to their premises. There are also a number of other offenses which I'm sure we can talk about as well such as the speaking and copying order, which is quite a new offense that restricts people speaking, or coughing on a public health official or public official that has been expanded as well to retail workers and other workers, and the author says that it's an offence to intentionally spit, or cough on a public official in a way that is reasonably likely to cause be about the spread of COVID-19 so it's quite an interesting offense.
Thanks Elise, and I mean you mentioned that states would have different responses. In terms of these restrictions, and I mean one of the things that may have been curious was seeing the Prime Minister announced rules but then something happening quite differently elsewhere. And do you think, as a community, we really understood or understand those different levels of government, and, and how they work together it's been quite an unusual situation, in a sense, with the Prime Minister announcing various rules. But then, them playing out differently, across each state and local levels as well.
Yes, definitely. So I think there was confusion when Scott Morrison made those announcements about okay is that law now. And where's the source of authority does it reside in the prime minister or is where do we go and so I think that wasn't really well communicated to the Australian public at the start, exactly where they need to go to find these public health orders. I mean, even I spent a bit of time trying to find the exact orders as a lawyer, so I can understand some members of the public would be quite confused about, you know, do you go to the Commonwealth legislation do you go to the state legislation, and in fact it is the states and territories that have the power to make a lot of these laws under emergency provisions in their respective public health acts or similar so. So a lot of this is state or territory based, and it means that Scott Morrison, the Prime Minister can make these announcements, but it is up to the individual states, or territories, as to what rules they will enforce, and also the penalties attached to those orders, that's why you have quite a difference in the approach, for example, in Victoria they're quite expensive penalties more than $1,000. In Queensland as well compared to New South Wales, which is capped at $1,000 for the on the spot fines. When someone breaches those restrictions on gatherings.
So if we're in New Zealand, which in many ways has taken quite a different approach but would we have some of the same complexities.
No, we wouldn't, and obviously they did. They've been meeting with this national cabinet to try and have some uniformity of approach but we can see that that hasn't really played out. And that is the prerogative of the states and territories. To do so because they have to make the laws, and they're answerable to their particular voting public so in New Zealand you just have the prime minister and then also local government so you don't have that middle level of state or territory government so it does. I guess, create uniformity in the New Zealand context in comparison to the Australian federal system.
I'm Elise. Oh, was interested when you mentioned about the new order of around, coughing and spitting. And of course as you actually, and I can't remember all the words but as you terms but as you read out that that new rule. It's about reasonable intention I don't know whether it was reasonable and various other things. So can you tell us just generally as a bit of an example I mean, so does that mean we we can or can't speech or, you know, if we speak to someone, I'm not suggesting I'm about to do this but or any of the audience but if we, if that happened is that if we were gone. We're up for some penalty.
I mean that's the whole question because these are offenses, they are quite complex and there's not a lot of interpretive material that accompanies them because, unlike the ordinary creation of criminal offenses where they're debated in Parliament people propose amendments, they're voted on. As explanatory notes. There may be some brief explanatory notes for these offenses but there's not a lot of accompanying interpretive material. Now, it was already an offence at common law in New South Wales to speak on someone if you intended to speak on someone. And that contact was made there that would come under the offense of common assault. In fact, what we call a battery in New South Wales, where the cop on someone that's a different question might not have come under the offense of common assault so it would have been going to debate the need for this offense and also the penalty attached to it, but also those terms like you said they could cause confusion so we can see that there's a subjective element there intentionally spitting out or coughing on a public official. So, speaking or coughing has to be intentional. But then there's an objective element which is in a way that is reasonably likely to cause fear about the spread of COVID-19, so that suggests that is the reasonable person that would judge whether it would cause that fee. So, we call that an objective standard in criminal law. Now, this might be quite difficult for a police officer to decide on the spot notion that police can issue $5,000 penalties for this offense so there's a complex mix of subjective and objective elements. Again it's I, I'm not sure about the amount of training police have had in terms of the legal elements of this offense and how to interpret.
Thankfully some I think that just probably gives us an idea of what seemed like simple restrictions during this period can become very complex and involve a lot of often well established legal tests and tests and so forth. And it would be very interesting to see if any of these were tested at, at some point, but it does show the complexity as a community as citizens, what we're dealing with. I mean I know personally. And I tried to beginning to, you know, follow the public orders but I found it very confusing, and, and, you know, one day, what. Some time passed I did have some legal training. But, but it become quite nervous in that environment about are you doing the wrong thing you know, which people's I make where am I meant to move and, and, and so forth and David that might be a good spot to ask you point to ask you some questions as well because I think the police powers question has been really interesting here and often the way they've used it, you know, a lot of peace, a lot of police done a bomb die but you don't see them so much ecology, different things like that so I just wonder if you could describe some of the police powers that you've been given during this period and you know the extent to which they might be concerning for us, I think,
is the I mean, to me it's, it's kind of a busy time because I specialize in criminal law and public law so when these two things have come together, it's been fascinating and I think it's been kind of fascinating for everyone as well because we don't normally see our police forces out there enforcing the kills laws or regulations, you know, as, as important as sewerage systems are public health the police tend not to be interested in that. And in fact, even with things like HIV. The police have traditionally both at Law and Policy tank in a kind of respectful distance from that and let public health officials doctors and and individuals concerned to take care of themselves. So, what we're seeing though with COVID is a very rapid as Elisa said in relation to the sort of the directions given by the Minister as well as some subsequent orders. Some rapid lawmaking as well as some rapid increase in the powers to enforce these directions and orders made under public health checks across the country and you South Wales, for example, the public effect. And also the Commonwealth equivalent by Security Act now has provisions for police essentially to enforce aspects of those directions or orders that are made, usually by use all warnings, but also issuing on the spot fines in New South Wales, for example, have $1,000 for most of them and then $5,000 in some other offenses. You know, these are new powers for police. Obviously, police issue, all types of on the spot fines, all the time, but the issuing of fines to enforce public health directions, is a very new thing. In addition to that, the appearance for example in New South Wales and other states have the police commissioner for example front and center in daily briefings with the premier and chief health officer. He's also a sign of increased involvement of police and policing in these approaches. As I said police have been largely absent from public health practice. In the past, both because some of it is really not kind of something that can much help with, you know, as I said things like sewerage and, and those kinds of things are fundamental public health practices, and the police. Thankfully for them I think don't have a lot to do with that but even in relation to more contentious issues like on the transmission of disease, for example, police have tended to stay away for lots of good reasons, as you said, it makes people nervous, for example, and what we need in public health is generally not people to be nervous, we need them to be empowered and to be behaving in a kind of communal way and so that tends to mean that we tend to keep a distance between the criminal law, and public health. Instead, you've seen as you probably indicate you know some vision in the news of police policing social distancing driving around in some public parks, questioning people about why they've left the house, and the like. And that has been a very new part of our enforcement and public health, but as I can't you know we can talk about in more detail, and some other questions, perhaps, there's always been a kind of involvement that this is a kind of new shift for us anyway.
And we'll come back to that David bizarrely I think he wanted to. Yeah,
I just want to chime in and say that. David's absolutely right and say, these are new and unprecedented powers in Australia but there's also been problems and I would say, an overuse or misinterpretation of some of the powers. So for example, on the night of the 15th of May when it became more for for people to meeting groups, and the police was still apprehending people who were meeting in groups so the laws were changing very quickly and this was a question put to the police minister in New South Wales parliament, and he simply didn't have an answer or even understand the new laws and their operation. So it kind of indicates how confusing, it must be for people and how they must really not understand how to exercise their rights when they're approached by the police given that the powers are so vague in the instances, but also changing rapidly, and I just wanted to re emphasize also the, the point you made that Leslie that they use quite arbitrarily so we're seeing a lot many more police using these powers in the West compared to the east of Sydney. And this just, I think amplifies the usual arbitrariness, and I would say discriminatory nature of policing in on the streets and in society, and they can have really long term consequences after covert and I think that's something we really need to keep in check. As you know, as though those powers continue to exist and there's no real indication when there'll be a total cessation of these types of powers or laws at the moment.
Sorry, I think that's a really important point and it's something we can follow up as we go through and. And I think it's interesting that when we look at something like the COVID safe app. There's been a lot of, you know, concern and discussion about the security of that and the longer term implications in terms of data retention and privacy and so forth. But we don't seem to have these discussions around, placing, and yet that is that's been the thing that's been so pervasive during this period of, you know, for obvious reasons in the sense of the approach that we took. And I suppose today but that goes back to your point. And that is really, you know, this unusual situation of the police being involved, where these might be. Health officials normally, and I mean I, perhaps, I would say, Well, after all it was a crisis and we don't normally see. Health officials roaming, you know through the parks and beaches and things like that so weren't the place the obvious people to do this but. So, you know, in a sense, what's the risk there that you see or what's, what's the downside you mentioned one thing about the way people might respond, you know, law abiding people like me get nervous if the police around. So,
entirely natural is it meant to be intimidating. They're designed to be intimidating, and you know what that's that's exactly how it feels. Look, I mean I take both values and your point together. So I mean, yes, in a sense, it's a practical question right, we've got a bit of an emergency and it was a kind of emergency and still easy in some ways, kind of, you know, workforces to hand that a mobile and spread across the Strait, the state and are ready to assist but naturally, at least come to mind I mean we have a lot of nurses that are otherwise occupied. You know, we have some Public Health Officers but they're also very occupied so I understand why you reach for this and I understand as a practical mid trend in the sense in the sense of it being an emergency. But I mean, I think an important part to remember is that what we're talking about here is disease transmission, and we're talking about what we might call health behaviors. So for example, whilst I know that many doctors would like, you know, us all to exercise exactly you know three or four times a week for half an hour and to only eat healthy meals. These kinds of practices these health behaviors are not necessarily most effectively sustained through kind of black and white enforcement or the kinds of enforcement and threat that we use in relation to more standard criminal issues like assault or, or other things like that. And so in a sense you know whether or not you, you are being a safe if that's the right way to think about it in relation to your disease transmission behaviors with COVID is still a health kind of question. Yes, people need to build skills over time, but they're not really conducive to kind of policing response for lots of reasons, and in fact, if we do that we know, in fact, it ends up being very ineffective. But also, we need to realize that these are kind of things we need to build as a skill, we need to build with other people, we need to rely on other people. And we need to kind of keep it as we do with things like exercise or kind of negotiation, so that fits into your specific life, your specific community and there's your specific risks. I mean, I should say to that part of the kind of development. One of a better phrase of public health housing to policing also highlights, at least for me, as someone who's an expert in public health law. Just how often public health practice is in fact also a kind of policing function, we think public health often in very positive terms, and so we should about health promotion and the like. But you know, public health practitioners doctors, nurses and public health officials are involved in the kinds of policing functions that we're seeing now all the time. I mean my recent research on this which came out a month before COVID and great timing showed that across all the states and territories in Australia, public health officials detaining people often, in my view, arbitrarily or at least without sufficient transparency and very often, detaining people who have say TB or HIV, but really you're looking at people who are poor, who are homeless were indigenous and other things like that and so you kind of start to say that in fact there are some connections here because what we're eventually trying to do, in some ways is to have people do certain things and not do certain things, usually with their bodies, performing certain acts and not performing certain acts, usually with their bodies, and that we use all types of the state uses all types of influences to do that, including the use of force and detention and parenting and alike and so there is a connection between the two. You know, we think using the health practitioners and the health approach is more effective, probably more human rights respecting, and in fact more fit for purpose, but there is still this underlying kind of connection.
Thanks David. You mentioned HIV there and I'm old enough to remember the time when that was viewed as a crisis and, and Australia became quite a leader in the approach that was taken to that so does that give us a model for the way we could have handled this pandemic or perhaps you can describe what what may have been different around that.
Look, you know we always it's always great to have hindsight, and we actually have it in this case, we have it with HIV, you know, a genuine crisis of public health and a clinical crisis, some disease transmission event. Yes, in some ways it's different to covert both in the way it transmits but we have some key lessons, particularly around policing and enforcement, we know fundamentally that in relation to HIV criminal law, and criminalization doesn't work, it's not the right answer. Not only this, but you know, if we start to go down that path and sustain it, what we end up doing when we apply the criminal law hammer is that we start to frame certain people as offenders and certain people as victims certain groups as stigmatized and certain people is not. And what we need is not that instead what we need is a kind of shared and mutual responsibility for us to together reduce on the transmission for disease like Cova just as much as HIV, and using criminal law does a range of things, it, we know in relation to HIV but it eventually produces stigma and fear, and that reduces our best and most effective efforts of reducing on the transmission, and so it's, in a sense, useless. In fact worse than useless probably makes it worse. And we also know that laws are criminalized HIV exposure and transmission, for example, are usually drafted very broadly and applied applied very broadly and indiscriminately, and often punish behaviors that are not blameworthy, and because of this we end up having people not wanting to engage with our service people not being honest about their status. And if you think about what Sally was just saying sounds awfully familiar in relation to some of the COVID related laws that there are broadly drafted broadly applied often punishing behaviors not blameworthy if you think of those small stories that you hear and you're seeing the news about people sitting on a park bench 200 meters away from someone, and you're being asked to essentially why they're there and to move on. Well, as soon as you know about Alma disease transmission with COVID you know that you represent, no risk to yourself or other people you catching your birth house for a walk for 10 minutes on the park bench. And so when you start to apply these things, broadly and too broadly and apply them to havior that's not actually blameworthy people start to disengage, and you end up not having an effective response.
Thanks, and failure, David mentioned their shared responsibility. Is that what we understand as citizen policing, and is that, you know, what does that mean in fact and what are some of the ramifications of that.
Yeah, thanks Leslie, Um, I think we have going. We're in the midst of this phase like we we've come from a phase where the message was very much, stay at home. Now the message seems to be, get out and spend your money. And let's get the economy going so I am, it's not quiet, that clean Kappa we're absolutely in that transition. And in order to manage that one of the messages that has been given by the New South Wales Health Minister and the chief medical officer has been, you should exercise personal responsibility, but also feel comfortable telling other people to be responsible. So, for example, Brenda Murphy said if someone gets too close for you. Tell them to back off. Tell them to keep 1.5 meters away from you. And so it's really shifting, I think social interactions. And we don't have that much precedent in Australia. We don't have that psyche like in the US where we do police one another in that type of way and we know in the US where that manifests that can be quite aggressive and even violent. And I actually think it's a good thing we don't have that I would much prefer in this transition that we don't just enter into these confrontational relationships but we get clearer support to have to be able to exercise social distancing, for example, we simply don't tell our colleagues to go home. If they intern, you know for working abbatoirs, and they seem to be a bit sick we don't just tell them to go home. We do things like provide sick leave for people in average class. So I think there are real things we can do to support this transition to make the practical without putting the onus on one another to to enforce that
point to in the sense of, as you say, supporting people because and I was thinking to when David was talking before about. If you make people fearful and so forth. You know that also.
Have a non equal impact because you've got, you know, those people may be more anxious about disclosing health, health issues and so forth because of the ramifications perhaps for work and different things like that and and improvising in a sense so a controlling environment over that makes it even more problematic presumably yeah
I mean I'd love to hear what David thinks about that and the impacts on vulnerable people but I just want to chime in that. I think there's also the issue of racism and, you know, we saw right at the beginning of the event pandemic how Chinese paperwork were traded. And it was shockingly. You know violence and. And I think that, you know, when we try to enforce that type of, I guess, health approach. We are going to arise to certain groups being targeted and you know they say that sometimes the fear that arises in the pandemic is worse than the pandemic itself and can have long lasting effects and absolutely long after locked down.
I just said earlier there that you know it's a classic problem in healthcare, always particularly things like antibiotic use, but also in relation to things like COVID is of course employment law and employment practices. I mean if you're a simple story I think it illustrates if you're a casual worker, and you have a kid, and you've got childcare on a Tuesday and it's the only day you've got childcare and it's the only day you can pick up that shift. Are you really likely to kind of report that you might have a little sniffle you think it's okay, which means of course you're not going to get paid when you don't go to work because you're a casual worker, particularly in a setting like today where obviously there's been significant job loss and other kind of fracturing of the workforce and so something in a sense as seemingly unrelated as the kind of casualization of the workforce and the way in which we manage practices around that including, you know, saying that I'm seeking taking sick leave, or taking a day off becomes a really fundamentally very important challenge for controlling the onward transmission of psycho.
I want to move just to a different area that we haven't talked about at the moment and one that probably doesn't affect all of us, or many of us directly. But I think also has implications and it's around what's happening at the moment with judge only trials and not having juries in criminal trials, which is something again that doesn't happen as Elise was talking about before. We've got a state by state difference in terms of juries being used and so forth. But what do you think about the, the increase of Judge only trials, and, and, and what do you do you see any potential for that continuing and other risks around that.
Yeah I we have seen this rolled out because of the issues around in paneling a jury that would sit in and deliberate in close proximity, obviously to one a jury so you would have small rooms with more than 10 people. And so I think that we, for the short term at least will see this as a continuing practice. And I think there are grave risks attached to judge only trials. There's very strong reasons and principles behind having a jury it's it's a cornerstone of the legal system I'd also say it's a cornerstone of our democracy that that a person has a right to have their innocence determined by their peers, and that it shouldn't be a privilege prohibition that determines the guilt or innocence. So, it is a real threat to our principles and this is is pretty much unprecedented. And I think if it goes on any longer than than necessary. It would probably be the subject of the challenge. What, what we say is not only is the process. Concerning but the outcomes are also concerning studies indicate the people who are tried before a judge way there's no election to do so, are treated in a way that's more likely to result in the determination of the guild. So, the, the outcomes for people in the justice system are also worse so I think it's something to definitely keep an eye on. It's obviously only going to apply to a small number of people because a lot of trials have been delayed. But I think it's something to keep an eye on because it is part of this trend at the moment towards more executive power, more power in the hands of individuals, and I think it's something that, as a society, we need to to resist so it's important in terms of what it symbolizes for what has occurred in lockdown and we want to try and make that impact as narrow and short term as possible.
Can you explain to us a little bit more about what that means when you talk about a shift to executive power. And, and what what why that is something we need to be careful about.
Yeah, so we have seen that the enactment of these laws and these health orders, but also their interpretation has been very much informed by people in the executive so not necessarily simply those elected representatives absolutely as at least mentioned not going through parliamentary process and parliamentary scrutiny. In the same way, but also their interpretation being undertaken by people like police commissioners so we didn't for example know whether we could go fishing after the match orders and it was the police commissioner, who could tell us that we could go fishing or told us that we could have family over to look after grandparents so things like that that actually determine people's day to day lives were being directed by people in executive, and this is likely I think to have some lag effect so they've now instituted position of New South Wales resilience Commissioner, and his Commissioner can step in whenever the state determines there's an emergency. That might be a pandemic but it also might be a bushfire it might be some kind of crime that the state has determined needs a particular lockdown approach, and this commission was to determine practices around the or I should say regulations and practices around those types of house and I think that's a that's a real risk when we try and shift that power on an ongoing basis because what an emergency tells us is that we are no longer respecting the rule of law. This is a special case and we're going to have special powers, and those powers are going to shift from the government to some extent to unelected people in the executive.
Thanks Sally that's some. That's really helpful and. And I suppose you know the difficulty is also in the situation we're in, as I think a number of you. Each of you have mentioned, is, well, how long is this going to go on for how long are we going to be in that situation and because we don't know at. And there is that risk that those powers then just continue. I want to just move to another area Farley that you've been very active in. And that's around the wrist prisoner and advocating for prisoners particularly low risk prisoners so you've been advocating that those should be released during this period so that they can be safer, and so forth. So, what's happening there and how is the law supporting vulnerable populations.
Yeah, and I would say probably people in places of detention are the most vulnerable, they're generally highly overcrowded places in Australia where disease can spread rapidly much more rapidly than in the general community but also you don't have the same access to health services in places of detention and the people with in those places tend to be much more vulnerable. Hi, comorbidities. Many Aboriginal and Torres Strait Islander people with chronic health conditions. So they're very dangerous places and I think what I saw quite early in the pandemic was an opportunity to highlight these dangers within your group thinking how we understand and engage with people inside so very much the approach to prisons has been that there are different types of humanity that you know have lesser rights because they have committed an offense and a list deserving of the same health care and that's very evident in the fact that people don't get access to health care in the same way as they do in the community. So we have these assumptions that we've been quite comfortable with. And it's meant that the status quo has very long for a very long time not supporting the rights of people in prison. But we saw it as an opportunity to actually shine the spotlight on health issues for people in prison with a view to suggesting that low risk people should be released from prison. And this is quite radical to say that people that the courts have locked up should be released, not only on a case by case basis but perhaps in terms of classes of inmates. And we wrote an open letter with organizations and academics across the country. In March, that had a very immediate effect and that was for the New South Wales Government to, I guess he to add him on to release people. And so within a number of days they introduced the legislation and passed legislation that enables the correction Commissioner to identify classes of inmates who are vulnerable and who are nearing the end of their term of imprisonment, to be released by the commissioner. So they, this was I think for us a huge win and a huge development in terms of our long standing calls for decarceration our long standing belief that unwell people should not be imprisoned especially those low risk people serving short sentences. Having said that, and after, I guess, you know, the joy of having some kind of responsiveness by government that for me as an academic although I'm constantly engaged with governments in lobbying. Very rarely see that level of responsiveness. So after that sense of time. We actually haven't seen the law applied at all. So, our understanding is that the law exists to give the corrections Commissioner powers in the event of an outbreak it's not stated in the law. But again, returning to executive power. That's how they can be
in the event of a covert outbreak, and that defies our message and our concerns, which is really to prevent an outbreak to take pressure off prisons that are very overcrowded and and to in that way safeguard the health of both people in prison, but also the health of the community because we know workers, move between the prison and you know people are released. And so unfortunately it hasn't had the desired effect.
Then So, thanks, thanks Dalia now before we've got a few questions before we move to that. I'm going to just bring all the panel together again and. And I guess some, a bit of a, you know, a bit of an open ended question in some way but as we say in the US, there's been quite a lot of protest against various restrictions and people, you know, demanding that they should be allowed out and all the rest of it but Australians on the whole have been relatively compliant with the restrictions and so forth that have been imposed. And if anyone want to take a take a punt. Why do you think that that might be the case.
I can start that I will start the discussion here so thank you Leslie, I think that that could potentially be in this this is a very broad generalization but more of an individualist ethos that also runs through, probably a stronger civic education in the US. And so there's that combination and also obviously more of an emphasis of on libertarian values as well. So, it is hard to generalize and I think there are parts of the stone community who have been voicing concerns about the potentially draconian nature of these laws and also attempts at protests when it comes to prisoners rights and the rights of refugees, as well, in detention. So I think there is still protests going on, potentially it's aimed at more social issues often, although we did see protests against the lockdown as well. Yeah, so it does seem to be that we have less of a protest culture when it comes to these laws and I think there was a really important conversation and emphasis around helping each other and helping out our families and we were doing this as a community together. And that's actually a positive that has arisen from from this. But again, the question is, did we need some of these more draconian police powers. And I think it's okay to have a conversation about that I think it's important to say, is a fixed thousand dollar fine too much when it comes to people who are homeless or, or poor, or indigenous and they often already have debt debts and have mounted up anyway, especially in the current economic times, so I think we need to have these conversations, and they're healthy, but also keep in mind the top priority of help, you know, ensuring that we,
I guess, achieve those public health goals. Thanks.
Can I can I just say that, um, and I don't know the extent to which this was occurring but it absolutely was the case that people were starting to stay home starting to pull their kids out of school starting to work at home businesses were starting to limit their trade, even before the laws came into effect. So I think there was a general concern, led by very good evidence, and looking at what was happening around the world. Among Australian people that didn't always necessitate laws in fact I think sometimes the laws followed people's behaviors and follow the concern so there's more of a complex interrelationship that maybe means the government is not the only source of credit for low rates.
I think that's really interesting and the point that Elise makes as well around that willingness of people to be supportive you know we did see that and we saw a lot of local community activities where people tried to help out you know say elderly people in a community and, and, and so forth and and and that, that is, you know, I wonder how we take that for further forward in the sense of the discussion that we need to have at least we're saying, so that rather than just going for the, you know, the sort of emergency or the police powers but is there a way do you think, as, as a community that we can take that forward or keep that discussion going.
I mean, I would say, healthcare and disease is often very scary but it also can kind of render visible some of the very basic fault lines as well as strengths of individuals and communities, and even states and nations. And, and I think one of the things that COVID has embarked on is to is to render visible some of those things. Essentially salia Annalise about saying, people were acting and responding for the common good. Before formal legislative measures and directions were made those directions may or may not have been necessary may or may not have been well drafted, you know, they certainly did cause a bit of a panic me. What is exercise in the park, you know how fast you have to walk for the exercise we kind of gave everyone a first to have or certain internal rotation problem, all at once. But, but I think the fact that people already responded was really interesting. And actually, of course, there may be outliers always but if the vast bulk of people, not only have a self interest in protecting themselves, and the people they love but also their communities. And, and, and, in a sense, their nation. Then, you know, there is a real opportunity to say well how do we actually give information evidence, support, and where needed for some people, particularly strong supports to help them to do what they already want to do and I think that's something we need to think more about in relation, not just to public health and healthcare because of course people have a strong personal vested interest in that, but also things that we've been talking about from criminal legal responses to anything from, you know, juvenile justice and juvenile crimes through to drug sentencing and all types of things right the way through to employment war, most people want to do the right thing, but how do we actually empower them to do that, rather than necessarily using the hammer all the time.
Now, you give me a great segue David because I'm going to go to the questions that our audience. We can't see but certainly out there. And so one of the questions is a little bit around employment law, and I'll open this up to any of you who want to immediately qualify as an employment lawyer. What is the thinking behind making it in an offense for an employer to require an employee to download the COVID app.
I might start because it sort of crosses over between employment law and public health practice symbol and I'm, you know, full disclosure, not an employment lawyer but I suppose on the one hand my first my first response is, that kind of lawmaking shows in a sense, what at least the lawmakers believe is at stake, right in, in having people adopt the COVID safe app, and to continue to behave in ways that are supportive of reducing on disease transmission. Now whether or not you think the COVID safe app is or is not a kind of a good quality tool for that it does show that lawmakers are quite concerned. In order to do that, but I suppose it also on the other hand underlying something that Elise was saying a little bit, I think, too, which is that the Australian legal system and our political system for good or ill, and we won't get into this debate right now but essentially relies on people being upright and careful about how to exercise power, both in the workplace. You know, in judicial system as politicians as members of the executive now there are lots of criticisms, to be made, I think a very valid about reliance on that rather than the alternative of a kind of well enumerated set of rights or well enumerated set of responsibilities or whatever system you have, but it becomes very clear that actually, it's a real threat but employers might say you must have this app downloaded and so clearly the government responds. And so he I think we kind of, again, render visible some of these fault lines around where we're relying on people kind of being put blokes and not doing this stuff, and in fact the actual if they did have people to kind of force people to do what it could have a hugely detrimental effect on the uptake and support of the app, and thus on Amr disease transmission.
Thanks. Another question from our audience, and I might shoot this to Elise because I think this is work that you've done some research on what can people do, if they feel that they've been unfairly find during this time.
Yeah. So a lot of my research has been on the issuing of penalty notices, or offenses like offensive behavior and offensive language like swearing. And we can see these form of penalty notice has been transplanted to the COVID-19 context, but with really expensive fines for some of them so $1,000 for example for the free to the public health orders on gathering and movement or $5,000 a fixed $5,000 fine for breach of that order that we talked about before. On in relation to spitting or coughing on a public official or workout. So, we can see there some really expensive big spines. Now, there is an opportunity that people have to seek an internal review of that fine. And even though I recall the police commissioner said that he would personally review a bunch of these all of these fines, he said, there's still that right to seek an internal review, and that depends on your review body in your state or territory so for example in New South Wales, its revenue in New South Wales. And it's important if you are seeking that review that you accompany that we reasons for why you should not have been issued that fine it might be because you had a reasonable excuse at the time and so, and there could be a bunch of reasons there. It could be because for example if you were homeless and you were not able to be inside at the time, or isolate. So, there, what is important though is that you do seek legal advice, in relation to this so I do recommend people seek legal advice. for example from their local community legal center. And there's also a right to appeal a fine but I think it's important to exercise that initial internal review right first in most instances. But if you do see to appeal that fine, you do risk a criminal conviction. So that would be something you should definitely get legal advice on.
And so loose. And another question.
And I'll just throw this open to the panel. What, what laws in general are there to prevent people taking advantage of this situation hoarding products and reselling, for example.
Anyone want to have a go.
I'm gonna tell you yes.
I was just gonna say the federal government, and New South Wales government came out very clearly saying, you know, they're going to come down on people who are stockpiling, but really the response, then shifted to management by whether it was pharmacists, because obviously stockpiling of medicine is of critical concern so they had limits on how much, ventolin, for example, you could purchase. And then there was a shift towards regulating supermarkets so you could only purchase so many, you know packets of pastoral rolls of toilet paper. So it has been the response. Over time became your regulatory one up to the very strong punitive messages sent by government. And I think it's it's it's worked well except for some of the earliest stockpiling and, and the ongoing investigations into those cases which from my understanding of in the in the main beat being dealt with through, through civil processes but David might have something to add to that,
I would just add that. One of the things that's been obvious is how much we rely on a range of professions as well as people in different employment categories to make society work, you know I think a lot of people have made comment about the fact that, you know, access to really important fundamental things relies on people who move stuff from one place to the other and sell it in a supermarket, and everyone is involved in that chain, but from a health and kind of bring the perspective to I think we're very lucky in this country to have very well developed set of professionals, pharmacists and others, for example that we actually rely on all the time to kind of do the right thing and to do the kind of clinical scene without having necessarily kind of like kind of intense tools to control their behavior and that's something I think hopefully at the end of this after lockdown we kind of come to think of as a great advantage, the one we do rely on and we should.
And it became a much more complex situation I mean we did see some of that behavior at the beginning, perhaps and, and perhaps some of that stockpiling for profit. But actually what we do discover as well, is that as a, as a community and the way that our food supplies and so forth operate. It's very much adjusting time process now. And that something might be packaged produce, you know tomatoes or something in tomato sauce in this country but we rely on another country to produce the jar or the lead or something like that. And so, so you know, these, the pandemic in that sense as opened up some of that complexity that, that you were talking about David and how we do have to manage these situations. I think we're gonna have to stop. Unfortunately, there are a couple more questions but I hope that that is has has given you an insight into what's been happening to our laws. Some of the ramifications for that during this period, and and really how complex it is and how important it will be to watch how we move out of the virus, and what some of those long term implications will be. But I want to thank, particularly at least Alia and David my wonderful colleagues and, and for their really informed advice and discussion. And I know that throughout this period each of them have been making contributions into the public sphere around some of what's happening to more dirt in the context of the virus. And if I can just remind you before we finally close that you can visit ut s.edu.edu slash events for further events in this series, and certainly if you've got the time I'm not sure who does at the moment but anyway, if you've got some spare time, and you'd like to try one of the taste of courses, you can visit those on open source ets.edu.au for free online courses. This webinar is going to be posted on YouTube soon. And we very much.
This article is based on, and contains excerpts from, Life after lockdown – Law in the time of COVID-19.
The declaration of a COVID-19 pandemic and a national state of emergency allowed federal, state and local governments to exercise extra-ordinary powers: closing down our borders, businesses, parks and beaches and severely restricting the movement of individuals.
Policing and surveillance have been ramped up and there are hefty fines and even prison sentences for those who disobey. Now, having given the police and other authorities extra powers, how easy will it be to remove them?
UTS Law academic, Dr Elyse Methven, says some of the new COVID-19 offences are quite complex, and have been introduced without the usual parliamentary processes and interpretive material accompanying them.
Offences were created overnight by state and territory health ministers exercising executive power. Dr Methven contrasts this to “the ordinary creation of criminal offences where they are debated in Parliament, with politicians proposing amendments and those amendments being voted on and accompanied by explanatory notes”.
What we’re seeing with COVID-19 is some rapid lawmaking as well as a rapid increase in powers to enforce these directions and orders under public health law across the country.
Dr David Carter
Dr Methven is concerned that the rush to create new offences meant police were given insufficient information and training in relation to how to interpret the legal elements of the new offences, and how to appropriately exercise their discretion.
Criminal law and public health law expert, Dr David Carter, says one of the major changes is the use of police to enforce public health measures.
“What we’re seeing with COVID-19 is some rapid lawmaking as well as a rapid increase in powers to enforce these directions and orders under public health law across the country,” says Dr Carter.
“The kind of health behaviours needed to meet the risk of COVID19 are not necessarily most effectively sustained through black and white enforcement that we would use in relation to more standard criminal issues, such as assault,” says Dr Carter.
COVID19 is still a health question. People need to build skills and knowledge over time and that process is not really best supported by a policing response for lots of reasons, and in fact, we know that a policing response ends up being very ineffective from a public health perspective.”
UTS Law’s Professor Thalia Anthony agrees that the new powers in Australia are unprecedented.
“There are instances of overuse or misinterpretation of some of the powers. The executive, who are not elected representatives, have been the ones ultimately determing the scope of the powers.
“You can understand how confusing it must be for people and they may not understand how to exercise their rights when they’re approached by the police, given that the powers are so vague in many instances and rapidly changing.”
Professor Anthony says another concern at this time is the move away from juries to to judge-alone trials.
“For the short term at least we will see this as a continuing practice, and I think there are grave risks. Juries are a cornerstone of the legal system and our democracy. It shouldn't be a professional expert that determines the guilt or innocence. This is an unprecedented threat to these principles,” says Professor Anthony.
Dr Methven says it is important to question whether Australia needs some of the more draconian police powers and expensive fines.
“I think it’s important to ask whether a fixed one thousand dollar fine is appropriate, or whether it is too much when it comes to people who are homeless, or poor, or Indigenous, especially in the current economic times – we need to have a conversation about whether on-the-spot fines are fair and necessary.”