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Victorian Premier Dan Andrews could be given the power to declare a pandemic under new laws allowing him to limit movement, implement health orders and close businesses in three-month blocks instead of chief health officer Brett Sutton.

It’s an unprecedented push for power, but one that has become all too common throughout this pandemic. In May the federal government attempted the single most drastic application of public health powers in the whole COVID pandemic: it temporarily made it a criminal offence for a certain class of Australian citizen to come home. The infamous “India ban” imposed a two-week prohibition on our own citizens, who were stuck in India at the height of its Delta outbreak, re-entering Australia on pain of imprisonment.

The legal justification was the extraordinary power given to the health minister by the Biosecurity Act in the context of a declared human biosecurity emergency, which COVID had been made in early 2020 and remains to this day. The minister can do anything he considers necessary to restrict the spread of the disease.

We challenged the India ban by urgent application to the Federal Court, and lost. The case focused on a critical question: had the minister properly satisfied himself that the ban was necessary and proportionate to the threat he said it was addressing?

We thought we had a very good argument, given that the practical risk of COVID coming in from overseas was effectively manageable (and managed) by means of the caps on hotel quarantine, and high-risk cohorts could be (and were) handled by quarantine at Howard Springs in the Northern Territory, from which there has never been an infection leak. 

The documented evidence on which the minister said he had relied in imposing the ban was extremely thin and seemed to skate over many of the factual circumstances we thought would have been highly relevant. It looked like a political decision, rationalised after the fact.

The reason we lost, essentially, was because the court declined to look behind the minister’s decision, having been satisfied that he had power to make it and that that power is extremely wide. The context — the global pandemic — figured understandably large.

Not a single legal challenge to the exercise of public health powers, federal or state, has succeeded during COVID. The courts have given maximum range to the ability of health ministers and chief health officers, granted by various statutes, to do whatever they have considered appropriate: border closures, lockdowns, closures of everything from nightclubs to playgrounds, curfews, mask mandates, vaccination mandates.

So far, so good, all lawful and no sign of risk that a judge is going to intervene at any point and say “too much”.

COVID reminds us that sometimes rights and freedoms must by necessity be shelved in the face of existential risk, as presented by war, terrorism and now pandemic disease. Australians have taken to that rebalancing, as we always have, like ducks to water.

As COVID begins to recede from grave threat to its probable future as a continuing health risk of similar magnitude to the seasonal flu, important questions emerge which we would do well to consider openly and carefully: what have we given up, and how much of it do we want restored?

It is a more difficult conversation in Australia than in most Western countries because it takes place in the absence of any legally protected human rights. That absence reflects a cultural predisposition to assuming, rather than asserting, the existence of such rights. Unfortunately, we have been blessed in recent years with governments, state and federal, whose instincts tend towards the authoritarian. Assuming that they’ll happily retreat might be naively optimistic.

Every aspect of every decision made by every government in COVID has been contested. There is no objective truth to where the balance between public health and personal freedoms has appropriately lain. It can legitimately be argued that locking public housing occupants inside their towers, imposing curfews that had no scientific evidence to support them or treating Australians overseas as expendable citizens were measures that were disproportionate (or even unconnected) to the risk.

It can also be argued that all bets are off in a pandemic which is fast-moving and unprecedented, and that it’s better to be safe than sorry.

My concern is that that latter attitude has become dominant in the rationalisation of government decision-making — bearing in mind that all these draconian measures have been determined and imposed by discretionary exercise of individual executive power rather than by act of Parliament.

The art of government, in ordinary times, requires a balancing of public good and personal freedom which pays close respect to minimising the degree to which our lives are impinged upon, always and only to the extent that there is a clear and compelling justification. Necessity and proportionality are the key principles.

These principles have been discarded with alacrity since March 2020, accepted by most of us most of the time. They will need to be restored if we are to avoid losing far more because of COVID than it ever required.