Governance and the rule of law during Covid-19

The impact of Covid-19 has been felt throughout Australia and the world.

The different forms of governance of each nation often determines how those in power impose sanctions to limit the spread of the virus. At times, such sanctions may be a cover to gain more power and erode the rule of law.

As a result, it is prudent to consider whether the rule of law is being upheld during these times and whether our human rights are being permanently and unreasonably impacted.

Rule of law requires limits on special powers introduced during Covid-19

Leading human rights lawyer and Director of the Internationl Bar Associations’s Human Rights Institute, Baroness Helena Kennedy discusses the Rule of Law in the time of Covid-19. Listen to the Podcast here.

Baroness Kennedy highlights that special powers given during Covid-19 need to:

Be limited in time
Have clear ways of review of the exercise of those powers; and
Have special rules for Parliament so there can be monitoring of the use of power.

In addition, she highlighted warning signs of potential abuse of power in countries such as Hungary, Russia and India where there have been:

Additional powers taken without time limit or opportunity to monitor
Lack of freedom of expression with no reliable information available from trusted sources or the internet switched off to control information
Overly harsh punishments for breaching special rules

Rule of law requires the Courts to continue to hear cases

The justice system is an essential service. It is essential, even in times of a pandemic that;

Citizens have a recourse to the law
Courts continue to be a check on power, especially when special powers are given to the legislative and executive branches

Sir Gerrard Brennan stated:

If they [the courts] were constrained to cancel sittings or to decline to hear the cases that they are bound to entertain, the rule of law would be immediately imperilled. This would not be merely a problem of increasing the backlog; it would be a problem of failing to provide the dispute-resolving mechanism that is the precondition of the rule of law. It should never be forgotten that the availability and operation of the domestic courts is the unspoken assumption on which the provisions of our Constitution and laws are effected, on which the operation of the entire structure of government depends, on which peace and order are maintained, on which commercial and social intercourse relies and on which our international credibility is based

As outlined by Professor Legg in his article The Covid-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality it is important to ensure, even during a pandemic, that Courts provide open justice (where the Courts are open and accountable), procedural fairness (fair hearings according to the law) and impartiality (where public confidence in the Court system is maintained).

Rule of law requires informed citizens

Australians can should critique new legislation that gives additional powers by answering the below six questions:

1. Does this legislation create a group of people or organisation that can operate outside of the law?

2. Does this legislation remove the presumption of innocence?

3. Does it include punishments that are disproportionate to the offence?

4. Is there a mechanism to monitor the use of power?

5. Does the legislation protect and promote human rights?

6. Are there so many updates and additional regulations that the legislation is unclear?

See our post providing more details about these questions and how we can use these questions to understand whether new laws threaten the rule of law.

Rule of law requires willing citizens

People are more likely to obey burdensome laws if they accept that the law is fair, has been properly scrutinised and found to be necessary in the circumstances, and applies to all. We need people to obey the laws in order to stop the spread of COVID-19, so taking action to satisfy them that the laws are fair, necessary and have been properly and democratically scrutinised is a key element in dealing with the pandemic.

– Constitution Education Fund “The rule of law during the coronavirus pandemic”

The rule of law not only requires laws and law enforcement but willing and informed citizens who comply with the laws. This willingness to act in a manner consistent with the law is called a culture of lawfulness.

When considering the recent surge of Covid-19 cases in Victoria, Bagaric from The Australian newspaper stated:

Criminological research has demonstrated that if we see laws as lacking credibility we are less likely to comply with them….. to be effective, laws must be proportionate and adapted to achieve their objective and enforced consistently and transparently. Criminalising conduct alone will not change our behaviour and attitudes.

Case Study: How to Avoid Anarchy in a Pandemic Scenario

Using the above podcast, imagine a society where a pandemic wipes out all people over the age of 20. Without a functioning police force or government, there is anarchy. Total lawlessness has overwhelmed the community. The attached scenario helps students contrast different rules and governance that occur during crises and how peace and safety can be returned to the community.

Case Study: COVIDSafe App and the Rights of the Individual

The rule of law requires agencies to enforce the law using powers that remain controlled, monitored and transparent. These requirements maintain public confidence and ensure those who have the power to track citizens do not abuse this power.

The attached worksheet provides questions for students and helps them decide whether the COVIDSafe app fairly balances government power and public interest with our individual rights.

Case Study: Technology and the Rule of Law

Look back at the Government’s track record and consider the issues raised with metadata under the Telecommunications (Interception and Access) Act 1979.

In the past, how has the government balanced their investigative powers and the rights of the individual? Have they slowly gained more powers and access or have the restraints in the legislation provided sufficient protections? Read our resource to learn more.