An Opportunity for Progressive Law Reform

Stephen Lawrence

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.