The new coronavirus has exposed old weaknesses in the rule of law and social policy in Australia. We cannot miss the opportunity it provides for advancing a progressive law reform agenda.
The most draconian regime of widespread social control we have known was enacted using executive orders under existing public health legislation, but without a ‘bill of rights’ human rights framework to guide and limit executive enthusiasm.
That said, jurisdictions with human rights legislation promulgated better drafted and more tailored orders, because they were required to at least undertake a human rights analysis.
The ACT for example never enacted a stay at home law; focusing instead on the activities that posed the greatest risk of transmission and therefore justified the restriction of fundamental rights like movement and association.
But nowhere in Australia did those who believed the response was unjustified have a real forum to force the government to justify its measures.
The right of politics, traditionally hostile to entrenching fundamental human rights, has generally been more sceptical of government restrictions during the COVID-19 response. At times their critique has deployed the language of fundamental rights to question the legitimacy of restrictions.
The post COVID-19 era might present an opportunity for more political collaboration around the push for national and state human rights charters. Even if it doesn’t, the left should be renewing its push.
The panic phase of the virus response, as it rightly or wrongly encroached on our fundamental rights, also saw an immediate (and bipartisan) acceleration of the sidelining of the parliamentary arm of government. Scrutiny of the executive was dispensed with at a time it was needed most.
Our parliamentary standing orders should contain emergency provisions to ensure the continuation of parliamentary business, even during a pandemic. If Westminster could do it during the Blitz we could have done it during the COVID-19 response, especially with our digital capacities. Perhaps our Constitution should be more prescriptive as to when and how sittings occur.
While the NSW Parliament legislated a still unused executive power for the early release of prisoners, the judiciary quietly and properly set about using its powers to thin out prisoner populations to the extent possible. Magistrates virtually stopped jailing people and ‘COVID Bail’ became a thing.
A barrister mate called me after securing an unlikely non-custodial sentence for a drug addicted client last month. “We’re winning the war on the ‘war on drugs’ here”.
When the logic of mass incarceration disappears in the face of a public health emergency, a greater level of scrutiny regarding the criminogenic damage the criminal justice system inflicts on vulnerable communities becomes possible. As does a logical reconceptualization of how best to actually achieve community safety.
What in the day to day looks like a natural system all of a sudden becomes just a series of choices.
Added to this is a sudden and heightened appreciation for public health expertise and methodology.
In the wake of COVID-19 the prospects for rational drug policy and proper investment in treatment and rehabilitation are surely amplified. Now is the time for bold policy initiatives.
One such initiative could be a trial in a discrete regional area of a suite of harm minimisation measures such as detoxification, rehabilitation, drug court and executive non-enforcement of street drug offences – like possession and self-administer. Police resources could be focused on higher level distribution with drug use and addiction treated as a health issue. The results might spur wider reform.
Most defended criminal matters were adjourned as COVID-19 restrictions intensified, though a range of civil and shorter criminal matters proceeded using digital remote attendance. Having recently appeared in complex Court of Criminal Appeal and Federal Court matters on an audio-visual link, I am far from convinced that the quality of justice has been diminished in those matters. This could rarely however be the case in criminal trials – adjournments were granted routinely and bail often followed.
A wide range of mentions and other more procedural matters have proceeded by email or telephone. The savings in time and resources have been massive.
In an age where prohibitive legal costs pose an often-insurmountable obstacle to access justice, we have gained an insight into a cheaper and more accessible system of justice. One where the right to physical attendance is maintained but is compulsory only where actually necessary and where the efficiencies are passed on to legal consumers.
An unfortunate exception to the general performance of the judiciary has been the institution of the ACT Supreme Court. Its Chief Justice set about becoming a successful public advocate for the replacement of jury trials with mandatory judge alone trials. She and the other justices will now adjudicate upon the new law’s interpretation and application.
This departure from the proper demarcation of governmental roles was a rare blemish on the performance of the Australian judiciary during the immediate COVID-19 response.
Our federal system has reemphasised its one true strength, a diversity of governmental approaches. Unitary systems of government can be more easily hijacked at the expense of human rights and the rule of law, while federal systems can provide a laboratory for policy experiments.
The COVID-19 response has also seen widespread public focus on questions of privacy in the digital era. As citizens have been asked to download the tracking app, they placed their trust in the law Parliament would pass to guarantee privacy and certainty.
The case for a digital bill of rights that finally brings the law into the 21st century has been strengthened.
There are real opportunities in the post COVID-19 era for new gains when it comes to human rights, access to justice, privacy rights and progressive law reform generally. The left of politics needs to be bold in placing law reform at the centre of our reform agenda.
Stephen Lawrence is a barrister and the Deputy Mayor of Dubbo.