IN THE MATTER OF STATE V LIBERTY REFLECTIONS ON THE 2020 CORONAVIRUS PANDEMIC - EDITED BY ANNE MCNAUGHTON & EVA U WAGNER
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In the Matter of State v Liberty
VOLUME 5 / 2020
Reflections on the 2020 Coronavirus Pandemic
Edited by Anne McNaughton & Eva U Wagner
/ PAGE I‘Periscope’ is the Occasional Analysis Paper/Brief series of the Konrad Adenauer Stiftung’s (Foundation) Regional Programme Australia and the Pacific. Just like the re- al-world sighting instrument, Periscope is meant as a lens to broaden our insights - taking in views from different angles. This way, it seeks to bring together perspectives from Germany, Europe, Australia, New Zealand and the Pacific region to augment our understanding of contempo- rary issues and help address the pressing problems of our time. The Periscope Series covers topics from the area of foreign and security policy, cybersecurity, terrorism/count- er-terrorism, energy policy, rule of law, socio-economic matters and development policy. It comprises both longer Analysis Papers – in the form of single-author (and co-au- thored) contributions or edited volumes with multiple authors - and shorter Analysis Briefs. periscopekasaustralia.com.au
In the Matter of State v Liberty
Reflections on the 2020 Coronavirus Pandemic
Edited by Anne McNaughton & Eva U Wagner
THE PERISCOPE SERIES
VOLUME 5 / 2020Vision and Worldwide Work The Konrad Adenauer Stiftung (KAS) is a political foundation of Germany, with the vision to promote international dialogue, sustainable development, good governance, capacity building, regional integration and enhance understanding of the key drivers of global developments. It is named after the first Chancellor (Prime Minister) of the Federal Republic of Germany, Konrad Adenauer whose name represents the democratic rebuilding of Germany, the anchoring of German foreign policy in a trans-Atlantic community of values, the vision of European unity, and Germany’s orientation towards a social market economy. Currently KAS is present in around 120 countries, with over 100 offices on six continents. With our worldwide networks and long-term partner structures, we aim to contribute to knowledge exchange and policy development in line with our values and aims. Our Work in Australia and the Pacific As current global developments - such as a volatile security environment – under- score the common interests of Europe and Australia, KAS’ Regional Programme for Australia and the Pacific seeks to foster durable collaboration through dialogue among parliamentarians, representatives of government departments and leading academic/think tank experts, as well as political analysis and consultancy. For the European Union in general and Germany in particular, dialogues with Australia and New Zealand are of special relevance due to our history of strong bilateral and regional relations. Given our shared values and common interests in shaping the rules-based order, there are manifold opportunities for this partnership. Our programmes are dedicated to collaboration and knowledge-sharing to strengthen our collective resilience and ability to find solutions to the pressing problems of our time. ABOUT / KAS AUSTRALIA AND THE PACIFIC PAGE I
PAGE II THE PERISCOPE SERIES / VOLUME 5 / 2020
In the Matter of State v Liberty
Reflections on the 2020 Coronavirus Pandemic
The Periscope Series
Volume 5 / 2020
02 Foreword 30 Combatting the
Dr Beatrice Gorawantschy CoViD-19 Pandemic –
The Case of Germany
04 Introduction Prof Jürgen Bröhmer
Eva U Wagner
38 The New Zealand response
08 Reflections on the 2020 Dr Andrew Butler
Coronavirus Pandemic
The Hon Robert S French AC 44 Balancing rights
and restrictions
16 Germany’s Protective Ashwin Raj
Measures against the COVID-
19 Pandemic: Stress Test for 50 Assessing Samoa’s Response
the German Rechtsstaat to COVID-19 Pandemic
Prof Dr hc Rudolf Mellinghoff Beatrice Tabangcora
Dr Philipp Maetz
60 Conclusions
23 Reflections on the 2020 Anne McNaughton
Coronavirus Pandemic
Laureate Prof Emeritus
Cheryl Saunders AO
/ The Hon Robert S French AC PAGE 01Foreword The Konrad Adenauer Stiftung’s Regional Programme Australia and the Pacific re- cently initiated a rule of law dialogue between Germany and Australia with the aim of extending it to New Zealand and the South Pacific. KAS Australia seeks to contribute through its Periscope series to the ongoing rule of law debate, includ- ing current issues such as the proportionality of coronavirus measures and the interaction between law and politics as well as opportunities and limits of rule of law states. We would like to connect Germany and the European Union with Australia, New Zealand and the South Pacific in an endeavour to increase mutual understanding and to foster idea and knowledge sharing between policy makers, legal experts and other stakeholders. 2020 will be remembered for disruptions both of national and global scale, from the Australian bushfires to the coronavirus pandemic. Given KAS Australia’s mandate to foster public debate and to promote theme-focussed dialogues, pub- lishing a Periscope edition on the coronavirus measures from a rule of law per- spective was an obvious choice. This edition includes reflections on the approach taken by various countries to protect public health. Our contributors from Austra- lia, Germany, New Zealand, Fiji and Samoa provide an overview of their respective country’s response to the pandemic to date and analyse the specific measures as to their proportionality and compliance with the rule of law. The contributions were submitted between mid-July and mid-August 2020 and reflect the situation in the aforementioned countries at that date. While the German Chancellor, Angela Merkel, described the temporary interfer- ence with citizens’ fundamental rights as an “imposition on democracy”, others labelled the coronavirus measures a challenge to the rule of law. But the pan- demic also represents a challenge for democracy in a different respect. More pre- cisely, the measures resulted in disinformation, fake news and conspiracy theories used by political extremist groups. They are indeed a test for liberal democracies. Thanks to the strong and stable foundation of the German political system and that of our like-minded partners, however, they never posed a real threat. Never- theless, a discussion of how far a state may go to contain a pandemic is a legiti- mate expression of any democratic culture. PAGE 02 THE PERISCOPE SERIES / VOLUME 5 / 2020
The complexity of the pandemic made extraordinary measures temporarily nec- essary and required comprehensive trust both in experts and governments. Dealing with the crisis is not only the task of medical experts and politicians alone: we as responsible citizens must also tackle the challenge to public health, and at the same time uphold the values our liberal democracies are built on. The German Chancellor Angela Merkel put it like this prior to the second lockdown in November this year: I have faith in the power of reason and responsibility in a democracy.1 I would like to take this opportunity to thank the authors cordially for their insight- ful and incisive contributions and the co-editors for their well-rounded efforts. It is my hope that this publication is thought-provoking for lawmakers, experts and other stakeholders alike and will further promote the discussion. Dr Beatrice Gorawantschy Director Regional Programme Australia and the Pacific Konrad Adenauer Stiftung Canberra 31 October 2020 1 Quote from a press conference, FOREWORD / Dr Beatrice Gorawantschy PAGE 03
INTRODUCTION Introduction Eva U Wagner Eva U Wagner is KAS Australia’s Pro- the University of Konstanz and a common gramme Coordinator for rule of law, energy law Master’s degree from the University and development policy in Australia, New of Aberdeen, for which she researched at Zealand and the South Pacific. She is also a the University of Cape Town compulsory German lawyer with several years of work pharmaceutical licences under the TRIPS experience in private practice. Starting Agreement. Prior to joining the Founda- her legal career in intellectual property tion, Eva was engaged as Research Officer rights, she has since specialised in inter- with the Austrian Embassy in Canberra, national estate matters and Australian mi- covering Australia, New Zealand and 11 gration and citizenship law. Her education Pacific Island States. includes a civil law Master’s degree from PAGE 04 THE PERISCOPE SERIES / VOLUME 5 / 2020
Health is a state of complete physical, mental and social
well-being and not merely the absence of disease or infirmity.1
Governments around the world have taken desired outcome. Measures are suitable if
various measures to tackle the ongoing they are not per se inept and may at least
coronavirus pandemic. Most countries promote the desired outcome. Notably,
have imposed similar measures2, includ- public entities are afforded discretion in
ing social distancing rules, restrictions on their assessment. Further, measures must
the number of people who may gather be required, ie there must be no less inva-
in one place, mandatory wearing of face sive or no equally effective measures avail-
masks and curfews as well as business and able to achieve the desired outcome. Again,
school closures. Some countries have im- public entities are afforded a margin for
plemented entry and exit bans (border clo- assessment.8
sures), with islands being able to enforce In addition, measures must be adequate
them more efficiently than others. Most, if (proportionality in its narrow sense). Mea-
not all, measures affect fundamental free- sures are adequate if the desired outcome
doms and civil liberties, some of which have is not disproportionate to the severity of the
the status of human rights, including the interference. If the measures are aimed at
right to free movement 3, the right to peace- individuals, decision makers must consider
ful assembly4 and the right to education5. the individual circumstances. If the mea-
In order for such measures to comply with sures are aimed at the public at large, de-
the rule of law, they must not only meet cision makers must consider any concrete,
the provisions of the law but also adhere comprehensible and authoritative facts
to the principles of proportionality. Given available to them. The general requirement
that there are various notions of propor- under various German States’ coronavirus
tionality, its criteria may vary depending ordinances, for example, for all travellers
on the understanding and interpretation of returning from third countries to quaran-
this term. tine at home for 14 days, was set aside by a
As far as Germany is concerned, the prin- number of German courts.9 Their decisions
ciple of proportionality was developed on suggest that such measures would be per-
the basis of the Basic Law6, more precisely, missive under § 28 Infection Protection Act
Article 20(3) Basic Law: (Infektionsschutzgesetz) if the case numbers
The legislature shall be bound by the con- in the respective third country rendered it
stitutional order; the executive and the ju- more likely than not that the traveller has
diciary [shall be bound] by law and justice.7 contracted the virus, or there were no con-
crete, reliable and authoritative facts avail-
The principle applies to interferences by able in this regard, noting the traveller may
public entities with basic rights and pro- be exempt for other reasons.10
hibits measures that are unreasonable
and excessive. The principle requires mea- Judicial statements by the Chief Justice of
sures to pursue legitimate purposes (eg the High Court of Australia, the Honourable
public health) by way of legitimate mea- Chief Justice Susan Kiefel AC, may provide
sures (eg censorship would be illegitimate). guidance as to what is required under Aus-
In order for measures to be proportionate, tralian law and jurisprudence for laws to be
they must also be suitable to achieve the proportionate.11
INTRODUCTION / Eva U Wagner PAGE 05In JT International SA v Commonwealth The rule of law and, in particular, its
[2012] HCA 43; 250 CLR 1, Kiefel J (as she concept of proportionality, encompasses
then was) stated (at [337]-[338]) that: principles that are meant to safeguard fun-
A test of proportionality is necessary where damental freedoms and civil liberties. Ad-
a law purports to restrict constitutional herence to the principles is currently put to
freedoms, because although they cannot the test, arguably more than ever before
be regarded as absolute, the Constitution in our lifetimes. In an endeavour to foster
does not express the limits which may be the debate in regard to these matters and
placed upon them. Proportionality there- related issues, KAS Australia has asked the
fore tests the limits of legislative power. It contributors to this Periscope edition to
proceeds upon an assumption that, given respond to several questions, including:
the existence of the freedom, the legisla- What measures have been taken in their
ture could not intend to go further than jurisdictions? What rights and liberties may
is reasonably necessary in achieving the be affected by them? What is their purpose
legitimate purpose of the law. Legislation - and is it a legitimate one? Are they propor-
which restricts a constitutionally guaran- tionate to the ends to be achieved?
teed freedom within these bounds may As the contributions reveal, there is no ‘one
therefore be said to be justified and not size fits all’ response to this pandemic. They
to infringe the freedom. A test of propor- also demonstrate that the measures taken
tionality necessarily looks to the measures by like-minded countries must be scru-
employed, the level of the restriction they tinised by means of certain - crucial and
impose and the legislative purpose sought shared - values. While the ongoing public
to be achieved, which is to say the propor- health crisis may take some time to pass,
tion between means and ends… . it is never too soon to consider the lessons
In Maloney v The Queen [2013] HCA 28; 252 to be learnt from it. As the title indicates,
CLR 168, Kiefel J stated (at [166]) that: central to any response is and remains
respect for the rule of law. The contribu-
The rationale for proportionality analysis tions to this edition explore what that looks
is that no freedom, even a constitution- like in concrete terms. They may form a
ally guaranteed freedom, can be regarded basis on which governments could formu-
as absolute. While some legislative restric- late best practices in their efforts to tackle
tion is permissible, a test of the limits of this crisis, and to prepare for future crises.12
legislative power is necessary in order to
ensure that the freedom is not so limited
as to be lost. Proportionality analysis is the
obvious candidate. Proportionality analy-
sis tests a law imposing restrictions upon
a guaranteed freedom by determining the
reasonableness of the means employed
by the statute to achieve its legitimate
statutory objective.
PAGE 06 THE PERISCOPE SERIES / VOLUME 5 / 2020Endnotes
1 Preamble to the Constitution of the World 10 OVG Schleswig-Holstein, Beschluss v.
Health Organisation (WHO) as adopted by the 25. Juni 2020 (3 MR 32/20), see Press
International Health Conference, New York, 19 Release available at
of WHO, no 2, p 100) and entered into force 11 Australian Constitution Centre, Biographies
on 7 April 1948. The definition has not been of the Chief Justices of the High Court, The
amended since 1948. See
administrative decision. 12 Disclaimer: This introduction does not represent
3 Article 13 Universal Declaration of Human Rights legal advice. Rather, it is intended to provide an
(UDHR) overview of the legal matters raised in in it.
4 Article 20 UDHR
5 Article 26 UDHR
6 The German Constitution, and thus the rights
enshrined in it, are referred to as ‘Grundgesetz’
(Basic Law) and ‘Grundrechte’ (basic rights),
respectively. Germany was divided at the time
the law was adopted, and it was meant to be
provisional until unity was restored, so as not to
deepen the division. In the end, the decision was
made for the German Democratic Republic to join
the Federal Republic of Germany, rather than for
a new state to be founded on the basis of a new
constitution, not least to avoid any further delay
of the reunion. See Key Facts about the Basic
Law,
7 Basic Law of the Federal Republic of
Germany, see translation available at
8 The discretion and margin for assessment,
respectively, are justified on various grounds,
including the legislature’s prerogative to adopt
laws (comparable to the notion of supremacy of
parliament). This, and the rule of law principle
of separation of powers, mean that any judicial
review of the proportionality of measures is
restricted to the question as to whether they are
obviously inept or not required to achieve the
desired outcome.
9 VG Berlin, Beschluss d. 14. Kammer v.
10. Juni 2020 (VG 14 L 150.20), see Press
Release including link to decision
INTRODUCTION / Eva U Wagner PAGE 07ANALYSIS Reflections on the 2020 Coronavirus Pandemic Australia The Hon Robert S French AC About the Author Robert French served as Chief Justice of Since his retirement as Chief Justice, Mr Australia from 1 September 2008 until 29 French has been appointed as a Non-Per- January 2017. manent Justice of the Hong Kong Court of He is a graduate of the University of Final Appeal (May 2017), as an International Western Australia in science and law. He Judge of the Singapore International Com- served as a Judge of the Federal Court of mercial Court (January 2018) and as a Judge Australia from November 1986 until his ap- of the Court of Appeal of the Dubai Interna- pointment as Chief Justice of the High Court tional Financial Centre (June 2019). on 1 September 2008. From 1994 to 1998 He was elected as Chancellor of the Univer- he was the President of the National Native sity of Western Australia in December 2017. Title Tribunal. PAGE 08 THE PERISCOPE SERIES / VOLUME 5 / 2020
The title of this Collection: State v Liberty suggests a questionable opposition between the State and its laws and regulations on one hand and personal liberty on the other. The law and the Rule of Law provide the infrastructure for the exercise of rights and freedoms in democratic societies. At any time there is a tension between the by ministers and other public authorities human rights and freedoms recognised in and officials, in some cases deriving directly the Universal Declaration of Human Rights1 from the Constitution but for the most part and the International Covenant on Civil and from legislation. The law-making powers Political Rights2 and the constraints rec- of the States derive from their own consti- ognised in those instruments which serve tutions which also originated as Imperial legitimate societal purposes. In time of Statutes and were continued in force by the emergency, such as the present COVID-19 Commonwealth Constitution. The law-mak- pandemic, that tension is heightened but ing powers of the self-governing Territories the underlying principles which should derive from Self-Government Acts enacted inform political judgments about its resolu- by the Commonwealth Parliament. The tion and their essentially evaluative charac- laws of the Commonwealth prevail over the ter are the same. Responses limiting liberty laws of the States and the Territories to the should be reasonable and proportional to extent of any inconsistency. the risks to which they are directed. That is The Australian Constitution contains no Bill not always a limitation to be found in the of Rights. Nor is there a statutory Human laws authorising such responses or in the Rights Charter at a national level. Two of constitutions under which they are made. the States, Victoria and Queensland, and Turning to Australia’s response to the pan- one self-governing Territory, the Australian demic, it has involved the exercise of legis- Capital Territory, have human rights leg- lative and executive powers which must be islation broadly modelled on the Human understood in the context of their constitu- Rights Act 1998 (UK). Those Acts are not tional bases and limitations. constitutional in character. They require The Commonwealth of Australia is a fed- that other legislation within those polities eration comprising, as distinct polities, the be interpreted, so far as possible, con- Commonwealth itself, six States and two sistently with the human rights and free- self-governing Territories. The Constitution doms set out in those Acts which broadly of the Commonwealth came into effect on 1 derive from the International Covenant on January 1901 as a Statute of the Parliament Civil and Political Rights. They also require of the United Kingdom. It provided for enu- public authorities to have regard to those merated legislative powers to be exercised human rights and freedoms in the exercise by the Parliament of the Commonwealth of executive powers. and vested executive power in the Gover- Restriction on movement has been a major nor General albeit that power is exercised element of measures to suppress the Analysis / The Hon Robert S French AC PAGE 09
spread of the virus. A provision of the Com- In Australia there is in place a signifi-
monwealth Constitution relevant to restric- cant array of legislative and executive re-
tions imposed by law on movement within sponses to the pandemic. As of 2 May 2020,
Australia is s 92. It provides: an index of Acts and Regulations identi-
On the imposition of uniform duties fied 615 COVID-related instruments. The
of customs, trade, commerce and in- first response of every jurisdiction in Aus-
tercourse among the States, whether tralia, apart from the State of New South
by means of internal carriage or ocean Wales, was to declare a State of Emergency.
navigation, shall be absolutely free. Each response has relied upon one or two
primary Acts and instruments or directions
The people of Australia are free, by virtue issued under their authority. Important
of s 92, to pass across State borders statutes in this respect have been:
without burden, hindrance or restriction. 3
However the freedom is not absolute:
Jurisdiction Legislation
Hence, a law which in terms applies
Commonwealth Biosecurity Act 2015 (Cth)
to movement across a border and
imposes a burden or restriction is Queensland Public Health Act 2005
invalid. But, a law which imposes an (Qld)
incidental burden or restriction on Disaster Management Act
interstate intercourse in the course 2003 (Qld)
of regulating a subject-matter other
Victoria Public Health and
than interstate intercourse would not Wellbeing Act 2008 (Vic)
fail if the burden or restriction was
reasonably necessary for the pur- New South Public Health Act 2010
Wales (NSW)
pose of preserving an ordered soci-
ety under a system of representative Western Emergency Management
government and democracy and the Australia Act 2005 (WA)
burden or restriction was not dispro- Public Health Act 2016
portionate to that end. Once again, (WA)
it would be a matter of weighing the
Tasmania Public Health Act 1997
competing public interests.4 (Tas)
Movement across borders has been re- South Australia South Australian Public
stricted by some State Governments in Health Act 2011
order to prevent the spread of the virus from Emergency Management
one State to the other. The constitutional Act 2004 (SA)
validity of such restrictions on freedom of
Australian Public Health Act 1997
movement depends upon an evaluation of
Capital Territory (ACT)
the purpose and the reasonableness and
proportionality of the response. At the time Northern Public and Environmental
of writing there is a challenge pending in the Territory Health Act 2011 (NT)
High Court of Australia to the stringent re-
strictions imposed by the Government of
Western Australia on travel into the State
from other parts of Australia.
PAGE 10 THE PERISCOPE SERIES / VOLUME 5 / 2020As appears from that table, governmental • Protection of tenancies, commercial and
action has derived from Commonwealth, otherwise where tenants have suffered
State and Territory laws and instruments economic pressure as a result of job loss
reflecting the federal character of Austra- or business closures.
lia’s constitutional system. There have been substantial fiscal mea-
The restrictions imposed by various statu- sures to protect the employees of busi-
tory and regulatory and executive mecha- nesses which have had to cease or reduce
nisms include: their operations by reason of the pandemic
• Travel restrictions – into and out of Aus- (JobKeeper payments) and the enhance-
tralia, between States and Territories ment of unemployment benefit (JobSeeker)
and within States and Territories. An ex- payments. Regulatory prohibitions against
ample of the latter was the prohibition of companies trading while insolvent have
travel from one region to another within been ameliorated during the pandemic in
Western Australia, designed to prevent recognition of the financial stress on a wide
the spread of the virus within the State range of businesses. Some courts have
and, in particular, to protect vulnerable used virtual hearings.
Indigenous communities in the North- A ‘National Cabinet’ consisting of the Prime
West of the State. That prohibition was Minister, Premiers of the States and the
lifted following low detected infection Chief Ministers of the Territories, has been
rates across the State. formed, albeit without a statutory basis, to
• Restriction on movement out of resi- coordinate, so far as possible, responses
dences other than for work, exercise or to the pandemic. This, however, has not
shopping — the latter limited in some prevented different States from taking
cases by duration and location. different measures in response to local
conditions and infection rates — some
• Quarantine and self-quarantine require- more restrictive than others. The National
ments — including mandatory quaran- Cabinet has been described as a ‘Cabinet
tine in hotels for international arrivals office policy committee’ of the Common-
enforced by police or security contrac- wealth Cabinet.5 The Prime Minister stated,
tors and monitored self-quarantine on 29 May 2020, that the National Cabinet
at home subject to random checks by operates under the Federal Cabinet Rules,
police. including its confidentiality rules.6 A
• Restrictions on gatherings and/or the leading constitutional academic, Profes-
number of people that may attend them, sor Anne Twomey, has argued however
including weddings and funerals and a that the National Cabinet is not really a
wide range of public and private events. cabinet at all as it derives its power from
• Limitations on the operation of busi- the Federal Cabinet and that therefore the
nesses and work places by reference to Prime Minister controls its membership
number and spacing of attendees (eg and agenda. Nor is it a ‘cabinet’ in the legal
restaurants) and extending to full clo- sense. Its communications fall within the
sures depending on infection rates. category of ‘intergovernmental relations’
rather than true cabinet confidentiality.
• Social distancing and mask wearing It is essentially an intergovernmental ar-
requirements. rangement which has effectively replaced
Analysis / The Hon Robert S French AC PAGE 11The Commonwealth Government is maintaining a list of
COVID-19 related delegated legislation in order to facilitate
public scrutiny. The Senate Standing Committee for the
Scrutiny of Delegated Legislation resolved in April that
it would continue to meet digitally in order to scrutinise
delegated legislation relating to COVID-19 passed while the
Parliament was not sitting.
the Council of Australian Governments Parliamentary scrutiny of execu-
and has been meeting fortnightly during tive-made laws is essential in criti-
the pandemic.7 cal times like these. By continuing
Some of the legislative measures have had to scrutinise legislative instruments
or provided for retrospective operations. which would ordinarily be subject to
The most common instance of retrospec- parliamentary oversight, the commit-
tivity arises in connection with the National tee will play its part in ensuring that
Cabinet’s Code of Conduct on Commercial the government remains accountable
and Residential Tenancies.8 to the Parliament during this time.10
Ordinarily, legislative instruments which The Committee stated its expectation that
are made by the Executive pursuant to stat- emergency delegated legislation would:
utory authority are subject to scrutiny and • be time limited where it trespasses on
disallowance by the Parliament. That is, personal rights or liberties, or amends
however, a statutory not a constitutional or modifies the operation of primary
requirement. On 14 May 2020, the Gover- legislation;
nor-General of the Commonwealth declared
• only trespass on personal rights and lib-
a Human Bio-Security Emergency. That Dec-
erties to the extent necessary to protect
laration authorised the Minister for Health
public health; and
to determine emergency requirements not
subject to disallowance by Parliament in the • be accompanied by an explanatory
same way as regular legislative instruments. statement which, in addition to the usual
requirements, clearly explains:
The Commonwealth Government is main-
taining a list of COVID-19 related delegated – why it is necessary to include signifi-
legislation in order to facilitate public scruti- cant matters in delegated legislation,
ny.9 The Senate Standing Committee for the rather than primary legislation; and
Scrutiny of Delegated Legislation resolved in – any safeguards in place to protect
April that it would continue to meet digitally personal rights and liberties.11
in order to scrutinise delegated legislation
The Federal Government’s response to the
relating to COVID-19 passed while the Parlia-
pandemic has primarily been concerned
ment was not sitting. The Committee chair,
with financial packages, a national code
Senator the Hon Concetta Fierravanti-Wells,
of conduct for residential and commercial
stated that:
tenancies and travel restrictions:
PAGE 12 THE PERISCOPE SERIES / VOLUME 5 / 2020Date Type Relevant instrument Notes
18 March Declaration of Biosecurity Act 2015 (Cth) Human biosecurity emergency
Emergency declared – allowing Health
Minister to issue targeted,
legally enforceable directions
and requirements to combat
COVID-19
24 March Economic Coronavirus Economic Collection of Acts establishing
response Response Package the Federal government’s
Omnibus Act 2020 (Cth) economic response.
25 March Travel Biosecurity (Human Ban on Australian citizens and
Restriction Biosecurity Emergency) permanent residents travelling
(Human Coronavirus overseas.
with Pandemic Potential)
(Overseas Travel Ban
Emergency Requirements)
Determination 2020
3 April Economic National Cabinet developing
response a code of conduct regarding
commercial tenancies.12
7 April Economic National Cabinet agrees
response that States and Territories
should implement the code of
conduct.13
9 April Economic Coronavirus Economic Details of financial support
response Response Package announced by the Federal
(Payments and Benefits) Government.
Act 2020 (Cth)
9 April Economic Coronavirus Economic Amendments to implement
response Response Package financial support, including
Omnibus (Measures No 2) JobKeeper.
Act 2020
16 April Travel Biosecurity (Human Limiting the entry of persons
Restriction Biosecurity Emergency) into certain designated areas
(Human Coronavirus in Queensland, Northern
with Pandemic Potential) Territory, Western Australia
(Emergency Requirements and South Australia.
for Remote Communities)
Determination 2020
23 April Travel Public Health (Jervis Bay Public health State of
Restriction Territory) Emergency Emergency declared over
Declaration 2020 the whole of Jervis Bay (in
accordance with subsection
15(1) of the Jervis Bay Territory
Emergency Management
Ordinance 2015).
Analysis / The Hon Robert S French AC PAGE 13Date Type Relevant instrument Notes
5 May Modification Corporations (Coronavirus Section 127(1) of the
of existing Economic Response) Corporations Act modified to
process Determination (No 1) 2020 allow company officers to
sign and execute documents
electronically.
Similar tables can be constructed for the Australia’s federal Constitution necessarily
various States and Territories. Particular leads to a degree of complexity with differ-
examples of directions issued in specific ju- ent jurisdictions taking broadly similar but
risdictions include: Queensland’s directions sometimes different approaches.
under the Public Health Act 2005 (Qld) in For the most part it seems that the Aus-
March restricting mass gatherings, requir- tralian people have accepted the need for
ing the closure of certain businesses, pro- restrictions on their liberties necessary to
viding for border road closures and police suppress the spread of the virus. That said,
checks on major highways, self-isolation there is debate about what is necessary and
of 14 days and termination of rail services. what is not, about what is proportional and
Another direction imposed a maximum of what is not and about inconsistencies in the
ten persons allowed in private residences. application of restrictions. In a democratic
Victorian measures included direction and society that kind of debate is inescapable.
detention notices which may be issued to Having regard to the character of the pan-
persons who have arrived in Victoria from demic and subject to its duration, it seems
overseas from 31 May. There were also unlikely that the restrictive responses will
stay-at-home directions issued and police lead to substantial long term erosion of the
were authorised to issue on the spot fines rights and freedoms of Australians. That
for breaches of directions. Travel restric- depends upon the political and societal
tions from one postcode area to another culture much more than on the existence
were the subject of directions at the be- or non-existence of constitutional bills of
ginning of July under the Public Health and rights or national charters.
Wellbeing Act 2005 (Vic). New South Wales
had a range of similar directions includ-
ing a restriction on gatherings generally in
public places of more than two people with
a maximum penalty for individuals of im-
prisonment for six months or a fine of up to
$11,000 or both. On 30 March 2020, the Tas-
manian Government made a direction that
persons must remain in their primary resi-
dence unless leaving for a specified reason.
That direction was made pursuant to the
Public Health Act 1997 (Tas).
PAGE 14 THE PERISCOPE SERIES / VOLUME 5 / 2020Endnotes
1 Universal Declaration of Human Rights, GA Res 217A
(III), UN GAOR, UN Doc A/810 (10 December 1948).
2 International Covenant on Civil and Political Rights,
opened for signature on 16 December 1966
(entered into force 23 March 1976).
3 Gratwick v Johnson (1945) 70 CLR 1, 17 (Starke J).
4 Cunliffe v Commonwealth (1994) 182 CLR 272, 307-8
(Mason CJ) (citations omitted).
5 NSW Treasury, NSW Review of Federal Financial
Relations, Draft Report, June 2020, .
6 Prime Minister Scott Morrison, Press Conference,
Australia Parliament House, 29 May 2020, .
7 Anne Twomey, ‘We should bake in improvements
to our federation’, The Australian (6 July 2020).
8 See eg COVID-19 Omnibus (Emergency Measures) Act
2020 (Vic).
9 Senate Standing Committee for the Scrutiny
of Delegated Legislation, ‘Scrutiny of
COVID-19 Instruments’. .
10 Parliament of Australia, ‘Senate committee to
continue to scrutinise delegated legislation,
including COVID-19 related legislation’ (Media
statement, 1 April 2020).
11 Parliament of Australia, ‘Senate committee to
continue to scrutinise delegated legislation,
including COVID-19 related legislation’ (Media
statement, 1 April 2020).
12 Prime Minister of Australia, ‘Update on
Coronavirus Measures’, (Media Statement,
3 April 2020) .
13 Prime Minister of Australia, ‘Update on
Coronavirus Measures’, (Media Statement,
7 April 2020) .
Analysis / The Hon Robert S French AC PAGE 15ANALYSIS
Germany’s Protective Measures against
the COVID-19 Pandemic: Stress Test for
the German Rechtsstaat
Prof Dr hc Rudolf Mellinghoff
Dr Philipp Maetz
About the Authors
Prof Dr hc Rudolf Dr Philipp Maetz
Prof Dr hc Rudolf Mellinghoff (Honor- Dr Philipp Maetz was born in 1981 in
ary Professor and retired Chief Justice) Baden-Wuerttemberg, Germany. After
started his judicial career 1987 as Judge at graduation from high school (2000) and
the Finance Court of Duesseldorf (North national service, he completed his profes-
Rhine-Westphalia), served from 1992 to sional training in the Fiscal Administration
1996 as Judge in Mecklenburg-West Pomer- of Baden-Wuerttemberg, and studied tax-
ania (Judge and since 1996 Presiding Judge ation at the University of Applied Sciences
at the Finance Court of Mecklenburg-West for Public Administration and Finance in
Pomerania; simultaneous: Judge at the Ad- Ludwigsburg (2001–2004). He then studied
ministrative Court of Mecklenburg-West law at the University of Heidelberg (2004–
Pomerania). 1997 he was appointed as 2010), including an exchange year at Kyoto
Judge at the Federal Supreme Finance University, Japan (2006-2007). After the
Court of Germany. From 2001 to October First State Examination (2010) and the com-
2011 he was Justice of the Federal Consti- pletion of his legal training with the Second
tutional Court of Germany (Second Senate). State Examination (2012), he worked as a
From November 2011 to July 2020 he was lawyer in the area of tax law and succes-
President of the Federal Supreme Finance sion planning (2012–2016). In this time, he
Court of Germany. He was in several legal also successfully passed the tax consul-
and tax associations in leading roles, e.g. tant exam (2015). Since 2016, Philipp Maetz
President of the German Tax Jurist Society, has worked as a judge at the Finance Court
President of the German Section of the In- of Baden-Wuerttemberg in Stuttgart. In
ternational Commission of Jurists (ICJ) and 2017, he was awarded his doctorate by
Member of the Permanent Scientific Com- the University of Cologne. He is currently
mittee of the International Fiscal Associ- seconded as a research assistant to the
ation (IFA). He is Member of the Judicial Federal Supreme Finance Court (Bundes-
Integrity Group (JIG). finanzhof) in Munich. In addition, Philipp
Maetz is co-author of commentaries in the
area of income tax as well as reorganisa-
tion tax law.
PAGE 16 THE PERISCOPE SERIES / VOLUME 5 / 2020Introduction be significantly milder than the flu. The sole
requirement was, from 31 January 2020,
The COVID-19 pandemic reached the onwards, a reporting obligation for in-
Federal Republic of Germany on 27 January fected people. In early March, the Federal
2020. A 33-year-old employee of an au- President called for solidarity with people
tomotive supplier in Bavaria in South over the age of 60, and recommended
Germany – the so-called “patient 0” – who avoiding events with more than 1000 par-
had travelled to Germany from the compa- ticipants. In addition, the German Chancel-
ny’s Shanghai location, contracted the virus lor called for social contact to be avoided
from a Chinese colleague during an inter- wherever possible.
nal training course. Soon after, 13 of his
These voluntary recommendations were
colleagues or their relatives were infected.
not adhered to by parts of the population,
On 25 February 2020, the first infection in
and the virus continued to spread rapidly.
Baden-Wuerttemberg, also in the south of
As a consequence, the German Govern-
Germany, was confirmed. This person had
ment and the federal states agreed, on
likely been infected during a trip to Italy.
22 March, on a wide-ranging “restric-
Shortly afterwards, the virus was also de-
tion of social contacts”. 2 These included,
tected in a person in the federal state of
among others, the following measures:
North Rhine-Westphalia in the west of
Germany. From then on, the number of con- • Restriction of contact with people out-
firmed cases rose sharply across Germany. side one’s own household to an absolute
minimum.
On 22 January 2020, the Robert Koch In-
stitute1 declared that only a small number • Physical distancing in public spaces of at
of people could be infected by others at a least 1.5 metres.
time; that the virus would not spread very • A ban on group celebrations.
widely in the world; and assessed the risk
• Closure of restaurants, with take-away
for the population to be “low to moderate“.
of foods and beverages permitted.
However, it changed its risk assessment
on 17 March to “high”, and on 26 March to • Closure of service providers in the field
“very high” for risk groups. of personal care – eg hairdressers,
beauty salons, massage practices, tat-
Subsequently, a range of measures was
too studios. Exceptions applied for med-
taken to curb the course and spread of
ically required activities.
the coronavirus. This paper aims to give
a brief overview of the measures which The federal states also imposed additional
were implemented by the German Govern- measures based on social distancing, with
ment, followed by a legal assessment of the aim of reducing the rate of spread of
these measures. the virus:
• Suspension of face-to-face teaching in
The Government’s responses schools, and closure of child day care
and measures centres.
• Quarantine measures and closures of
Initially, the German Government relied on universities, businesses and retirement
citizens taking voluntary measures and homes.
assessed the course of the coronavirus to
ANALYSIS / PROF DR HC RUDOLF MELLINGHOFF AND DR PHILIPP MAETZ PAGE 17• Quarantine measures for an entire re- Legal basis
gion (Heinsberg).
Measures taken by the Government to
• A ban on church services.
control the spread of the coronavirus,
These measures were gradually phased out to contain the number of cases and thus
from 15 April 2020. In contrast, at the end prevent a collapse of the national health-
of April, a requirement to wear masks on care system, are measures of Public Law.
public transport and in shops was intro- This field of law governs the legal rela-
duced. In addition, a 14-day quarantine tionships between citizens and the gov-
requirement was imposed on those re- ernment, as well as the exercise of public
turning from abroad. authority. Public Law regulates which
The most relevant measures which were actions a government may take to fulfil a
implemented can be found in chronological task (in this case, to combat a pandemic);
order in the overview below (see diagram). how far these measures may go; which level
(federal or state (Länder)); which authori-
In addition to these jointly agreed mea-
ties are in charge of the specific measures;
sures, some federal states imposed further
and what legal remedies are available to
lockdown restrictions, where leaving
citizens. Measures against the coronavirus
one’s own apartment or entering public
are principally regulated by the German
space was permitted only with a “valid
Infection Protection Act (IfSG), which was
reason”. However, some of these restric-
rapidly and fundamentally altered by two
tions were overturned by constitutional
amending laws dated 27 March 2020,4 and
courts of the federal states. 3
19 May 2020.5,6
• Reporting Obiligation
January 31
• Recommendation to cancel events with more than 1000 participants
March 8
• Entry ban for non-EU foreigners
March 17 • Global travel warning
• Restriction of social contacts
March 22
• 14-day quarantine requirements for returnees from abroad
April 10
• Masks required in public transport and shops
April 22
PAGE 18 THE PERISCOPE SERIES / VOLUME 5 / 2020Protective measures in accordance with If the competent authority only wishes to
the German Infection Protection Act apply single measures against specific
(IfSG) persons, the measures are implemented
through administrative decisions (Verwal-
The most important legal basis for mea- tungsakte). This is a form of action by public
sures against the coronavirus is § 28 (1) IfSG. administration in Germany used to enforce
As the more specific clause, Sentence 2 of the law in individual cases.
§ 28 (1) IfSG primarily applies. This provi- Where measures are intended to be applied
sion empowers the competent authority to nationwide, it is more appropriate to lay
prohibit or curtail events and gatherings, these down in ordinances (Rechtsverord-
and to close swimming pools and other nungen). The latter are legal norms which
community facilities such as school and are not enacted by Parliament (legislature)
child daycare centres. The provision con- but by a governmental or administrative
cerning ‘other gatherings’ covers not only body, and therefore exceptionally issued by
gatherings in public, but also those in the the executive. Ordinances always require
private sphere, for instance, birthdays, proper authorisation by an Act of Parlia-
weddings, and funerals. ment. In Germany, state governments have
The general clause in Sentence 1 of § 28 the power to issue ordinances with state-
(1) IfSG empowers the competent author- wide effect under § 32 IfSG. They are po-
ity to take protective measures required to tential solutions if measures are meant to
prevent an infectious disease from spread- be uniform for an entire federal state, or
ing from infected persons, or persons sus- a large part of it. § 5 IfSG was changed by
pected to be infected. This provision is the amending law of 19 May 202010 and now
the primary legal basis for self-isolation at also authorises the Federal Government to
home; furthermore, people may be pro- issue ordinances.
hibited from leaving or entering certain
locations, i.e. the provision represents the Compliance with
legal basis for curfews. It is also the legal constitutional law
basis for operating prohibitions, in particu-
lar 7 with regard to catering establishments, § 28 (1) IfSG empowers authorities to take
retail businesses8 or establishments for very far-reaching measures which severely
leisure activities9. curtail fundamental rights of citizens. The
measures implemented in the Federal Re-
egal implementation of protective
L public of Germany to manage the spread of
measures coronavirus may be considered to affect,
in particular, the following fundamental
The German Infection Protection Act pro- rights (see table next page).
vides for the implementation of the above-
mentioned measures either in specific
individual cases – eg only applicable to a
single person – or nationwide for the entire
Federal Republic, a federal state or parts
thereof (and therefore applicable to a large
number of individuals).
ANALYSIS / PROF DR HC RUDOLF MELLINGHOFF AND DR PHILIPP MAETZ PAGE 19Protective measures Legal basis Affected fundamental
rights
Closure of catering § 28 (1) Sentence 1 IfSG Freedom of occupation
establishments, retail (Article 12 of the
businesses and establishments “Grundgesetz”11 – GG –)
for leisure activities
Self-isolation at home § 28 (1) Sentence 1 IfSG Freedom of movement
(Article 11 GG)
Ban on gatherings § 28 (1) Sentence 2 IfSG Freedom of assembly
(Article 8 GG)
Ban on church services § 28 (1) Sentence 2 IfSG Freedom of religion
(Article 4 GG)
Closure of schools and training § 28 (1) Sentence 2 IfSG Freedom of education
facilities (Article 7 GG)
Ban on private celebrations § 28 (1) Sentence 2 IfSG Individual freedom
(Article 2 (2) Sentence 2
GG)
The need to combat a pandemic does not such as bans on gatherings, quarantine or
in itself allow the state to interfere with its restriction of contacts.
citizens’ fundamental rights. Both the pro- Unlike most legal scholars, the scientific
visions of the German Infection Protection service of the German Parliament (Wis-
Act and the specific measures must be con- senschaftlicher Dienst des Deutschen Bund-
sidered with reference to these fundamen- estages) considers that § 5 (2) IfSG (which
tal rights. Ultimately, both must comply authorises the Federal Minister of Health
with the principle of proportionality. to issue ordinances under certain circum-
stances) is – at least in part – unconstitu-
Proportionality of the legal basis tional. In the view of the scientific service,
the competences transferred from the Leg-
On the issue of the – general and abstract
islature to the Executive by the provision
– provisions of the German Infection Pro-
are too far reaching. Additionally, the pro-
tection Act for the implementation of pro-
vision empowers the Federal Government
tective measures – especially § 28 (1) IfSG
to intervene too far in matters for which
– most legal scholars consider that the pro-
the federal states are responsible.13
visions are proportionate.12 As a pandemic
of the magnitude of the coronavirus poses a
Proportionality of the specific
threat to the people’s highest-ranking legal
protective measures
interests, namely human life and health
as well as the functioning of the national While the legal provisions comply with
healthcare system, the proportionality of German constitutional law, this does not
the provisions in general may hardly be necessarily mean that the specific mea-
questioned. This also applies to provisions sures adopted during the crisis also comply
that provide for far-reaching interventions
PAGE 20 THE PERISCOPE SERIES / VOLUME 5 / 2020with it. Rather, it is necessary to consider into account. The number of court cases – each individual measure in order to estab- several hundred – show that the rule of law lish whether it is consistent with the prin- is functioning well in the Federal Republic ciple of proportionality and, in particular, of Germany, and that the courts have duly if it is reasonable. The 14-day quarantine carried out their duty to scrutinise the use obligation for returnees from abroad, for of executive power. example, has already been ruled to be At the time of writing, we do not know unlawful on the ground that it cannot be whether we in Germany have largely over- assumed with a sufficient degree of prob- come the dangers of the coronavirus or ability that all returnees are likely to be whether we must expect a second wave. infected.14 Prohibition of church services, If so, new legal challenges will be taken to mosque services or synagogue services is the courts. However, the past few months also considered to be incompatible with the have shown that two fundamental con- freedom of religion (Article 4 GG), and to clusions can be drawn from the measures require exceptions on a case-by-case basis, implemented against the coronavirus in issued in coordination with the health au- the Federal Republic of Germany, and the thorities and with additional conditions numerous court decisions in their regard. and requirements, as necessary.15 Courts Firstly, it is important to ensure that na- have, however, upheld the general require- tional measures are not too general and ment to wear masks on public transport rigid, but rather provide for adequate re- and in shops16 , just as they have upheld the sponses to individual cases and excep- restrictions on school operations.17 tions, if necessary. Secondly, the measures However, a general, sweeping statement adopted must be temporally limited, and on proportionality cannot be made. Rather, continually be assessed against the pro- the measures to contain the spread of coro- portionality test. navirus must be continually monitored and assessed against the principle of propor- tionality. Furthermore, it is necessary also to continually examine whether individual restrictions must be maintained (especially in the light of new data) or may be eased (with conditions and requirements, or re- gional restrictions, if necessary).18 Outlook Even though the number of infections has decreased significantly in Germany, and the strategy of the German Government has attracted interest abroad, it must be noted that many provisions in ordinances were subsequently overturned on the ground that they were too general, and did not allow for individual cases to be taken ANALYSIS / PROF DR HC RUDOLF MELLINGHOFF AND DR PHILIPP MAETZ PAGE 21
Endnotes
1 The Robert-Koch-Institut is the German Society 17 Higher Administrative Court of Baden-
for Hygiene and Microbiology. Wuerttemberg, Decision of 18 May 2020, Case 1 S
2 www.bundesregierung.de/breg-de/themen/ 1357/20.
coronavirus/besprechung-der-bundeskanzlerin- 18 Federal Constitutional Court, Decision of 10 April
mit-den-regierungschefinnen-und- 2020, Case 1 BvQ 28/20.
regierungschefs-der-laender-1733248.
3 Constitutional Court of the Saarland, decision of
28 April 2020, Case Lv 7/20.
4 “Gesetz zum Schutz der Bevölkerung bei einer
epidemischen Lage von nationaler Tragweite”,
BGBl. I 2020, 587.
5 “Zweites Gesetz zum Schutz der Bevölkerung
bei einer epidemischen Lage von nationaler
Tragweite”, BGBl. I 2020, 1018.
6 Overview in Schmidt/Lindner, COVID-19,
Rechtsfragen zur Corona-Krise, 1. Aufl. 2020, § 16
Rz. 1.
7 Administrative Court of Aachen, Decision of 21
March 2020, Case 7 L 230/20.
8 Bavarian Higher Administrative Court, Decision of
30 March 2020, Case 20 CS 20.611; Administrative
Court of Bremen, Decision of 26 March 2020,
Case 5 V 553/20; Higher Administrative Court of
Hamburg, Decision of 26 26 March 2020, Case 5
Bs 48/20.
9 Regarding shutdowns of gambling halls, casinos
and betting offices, cf. Administrative Court of
Düsseldorf, Decision of 20 March 2020, Case 7 L
575/20; Administrative Court of Cologne, Decision
of 20 March 2020, Case 7 L 510/20.
10 “Zweites Gesetz zum Schutz der Bevölkerung
bei einer epidemischen Lage von nationaler
Tragweite”, BGBl. I 2020, 1018.
11 The “Grundgesetz” is the Constitution of the
Federal Republic of Germany.
12 Instead of many, e.g. Rixen, NJW 2020, 1097, 1098.
13 www.bundestag.de/resource/blob/690262/
cb718005e6d37ecce82c99191efbec49/WD-3-080-
20-pdf-data.pdf.
14 Administrative Court of Hamburg, Decision of 13
May 2020, Case 15 E 1967/20.
15 Federal Constitutional Court, Decision of 29 April
2020, Case 1 BvQ 44/20.
16 Higher Administrative Court of Schleswig-
Holstein, Decision of 13 May 2020, Case 3 MR
14/20; Administrative Court of Hamburg, Decision
of 11 May 2020, Case 9 E 1919/20.
PAGE 22 THE PERISCOPE SERIES / VOLUME 5 / 2020ANALYSIS Reflections on the 2020 Coronavirus Pandemic The case of Australia Laureate Prof Emeritus Cheryl Saunders AO About the Author Cheryl Saunders is a Laureate Professor of Constitutional Law and of the Interna- Emeritus at the University of Melbourne tional Association of Centres for Federal and the founding director of the Centre for Studies, a Fellow of the Academy of Social Comparative Constitutional Studies. She Sciences in Australia, a corresponding has specialist research interests in Austra- Fellow of the British Academy and a foun- lian and comparative public law, including dation fellow of the Australian Academy of comparative constitutional law, theory and Law. She is a former board member of In- method, comparative federalism and in- ternational IDEA, a senior technical advisor tergovernmental relations, and constitu- to its constitution building program and a tion-making and change. She is a President convenor of the Constitution Transforma- Emeritus of the International Association tion Network. Analysis / Laureate Prof Emeritus Cheryl Saunders AO PAGE 23
Introduction has occurred. Parts 3 and 4 deal respec-
tively with the legal rules and with account-
The first case of Covid-19 was reported in ability and control. Part 5 assesses the
the Australian State of Victoria towards the Australian response and suggests some
end of January 2020. The early onset of the future directions.
virus coincided with a disastrous bushfire
season that ravaged many parts of Austra-
lia but was particularly devastating in the Context
more populous south-east. As the fires
Australia is a federation, with a central
came under control in early March the
level of government, known as the Com-
virus infection rate grew rapidly, peaking
monwealth, and six States and two terri-
towards the end of March, and then declin-
tories, which vary in size and resources,
ing sharply. Infection rates were very low
but are capable polities in their own right.
in April and May, but climbed rapidly again
The federal system is organised along
in June and July, almost entirely in Victoria,
lines broadly similar to those in the United
until case numbers again declined in early
States, in the sense that enumerated,
August. In Australia, as elsewhere, the virus
largely concurrent powers are assigned
has proved highly infectious and unpredict-
to the Commonwealth, the unspecified
able. As a generalisation, however, the Aus-
residue remains with the States and each
tralian response has made the health crisis
jurisdiction has a full set of institutions and
manageable, keeping total cases to just over
administers its own legislation. All jurisdic-
26,500 and deaths to just below 800, out of
tions have parliamentary systems in the
a total population of 25.5 million people.1
Westminster parliamentary tradition, and
The response has required concerted most have bicameral legislatures.
effort by both State and Federal levels of
Each level of government has substantial
government, and has given rise to new
constitutional powers relevant to managing
modes of intergovernmental co-operation.
the pandemic. Commonwealth concurrent
It has been assisted by the generally ready
powers include quarantine, immigration,
compliance of the Australian people. As
international and interstate trade, exter-
elsewhere, management of the pandemic
nal affairs, the armed services, health in-
in Australia has dramatically expanded the
surance and other forms of social security.
effective reach of executive power and di-
Using fiscal tools, the Commonwealth also
minished the role of legislatures. There has
has assumed primary authority for univer-
been little recourse to the courts, although
sities, aged care and disability services. The
two major inquiries were established into
States and territories have general regula-
apparent mismanagement, one of which
tory authority within their boundaries, run
is yet to report, which offer additional
hospitals and schools, play a significant role
windows into government practice. 2
in quarantine and are responsible for both
It is timely to take stock of how the system the police and the general criminal law.
of government responded to the crisis, in There is no constitutional emergency pro-
order to begin the task of drawing insights cedure, leaving emergencies to be handled
for the future. To this end, the next part by each level of government, relying on its
of this paper sketches the context within own areas of constitutional responsibility.
which the Australian system of government
operates, to inform understanding of what
PAGE 24 THE PERISCOPE SERIES / VOLUME 5 / 2020You can also read
