By Bill Rowlings, President of CLA
From the earliest days of the Covid-19 pandemic, Civil Liberties Australia has received questions about liberties, rights and freedoms. While people usually give examples of the particular pandemic area that concerns them, the questions boil down to:
Are our civil liberties being whittled away?
The answer, in strict legal terms, is ‘No.’ But, behind that one word lies a lesson for all of us in being on constant watch to safeguard our freedoms.
The current dictates by governments are usually made under pandemic, or health, or other emergency laws passed by parliaments many years (sometimes decades) ago, in anticipation of an emergency like a health pandemic. Recently, many of these general emergency laws have had an ‘emergency’ update themselves.
At the original time of passing, no-one – or very few people or organisations – objected to the “sleeper” laws, with most Australians who noticed the proposals considering: “We’ll never need to use them, anyway”. So they were enacted to extend potentially very broadly, able to be used in as draconian a manner as required, and to give virtually unrestrained power to politicians and police in most circumstances (Note 1).
So governments today are simply implementing extraordinary powers given to them by us, under emergency laws, and using police, troops, and health authorities to enforce them.
It is very relevant that three jurisdictions – the ACT, Victoria and Queensland – have Human Rights Acts in place, but none of those acts has been successful in winding back core elements of government decisions around the pandemic, from lockdowns to wearing masks and not leaving home.
We gave our freedoms away
In simple terms, we gave away our civil liberties and our rights to ‘normal freedoms’ when we allowed the emergency laws to be written so broadly with so few safeguards and basically no provisions allowing us to appeal decisions that go over-the-top.
We don’t have any broad-based provisions in the Australian Constitution or in a federal Human Rights Act to protect most of the freedoms we have traditionally taken for granted, for example:
- being able to leave home when we please;
- eating in the outdoors, where and when we like;
- walking in the open air, side-by-side, unencumbered by masks;
- driving where we want to go to – the next suburb, city or state; and
- leaving Australia when we choose, and returning when we want to.
This background information points to how we must “know better next time”. “The struggle for civil liberties is a journey that’s never ending,” former High Court judge, Michael Kirby says.
What will be very important, once this pandemic is over or becomes ‘normalised’, in two-to-three years, is to make sure that in any review of the current emergency, new laws are written that do not allow whittling away of civil liberties, human rights and basic freedoms without bloody good reasons that are transparent, easily appealable in tribunals and courts, and subject to daily monitoring by ordinary Australians to avoid political, police and other authoritarian abuses.
The best outcome of this pandemic lesson, to all of us, is that Australia must have a federal bill of rights to protect us from excesses of government and authorities. Similarly, states and the NT who don’t have a Human Rights Act should pass one (only the ACT, Vic and Qld have such acts now).
I hope you’ll join CLA’s campaign for the long haul, because there’s years of work ahead of us to make sure civil liberties and human rights can’t be ignored in future health or other emergencies…and so that we can’t lose our basic freedoms at the drop of a State Premier’s media conference.
You can join here: https://www.cla.asn.au/News/join-renew-donate/
Note 1: Something similar has happened with all the “anti-terror” laws passed since 11 September 2001 (‘9/11’). As time goes by, security and police services find new ways of using/abusing such specially-passed laws to impose harsh anti-privacy and data-surveillance on ordinary citizens just because they have the power to do so. All such laws passed since 2001 need thorough examination and re-writing to remove the unnecessary, the excessive and the potentially abusable aspects, CLA says.
Some relevant sources/articles:
Australian Health Sector Emergency Response Plan for Novel Coronavirus (COVID-19):
Permanent pandemic laws in Victoria? https://tinyurl.com/n5sk2tkc
Australian Emergency Law blog, by barrister/academic Michael Eburn:
- https://emergencylaw.wordpress.com/2020/12/31/two-cases-on-the-pandemic-response/ (covers Vic Supreme Court and High Court of Australia responses to claims under the Vic Charter of Human Rights, and under the Australian Consitituion).
Another well written and pertinent CLA article. Well done again. Such measures must be necessary, proportionate, based in risk analysis and only implemented for the minimum necessary period based on objective risk analysis, not zero risk bias and the precautionary principle.