The proposed pandemic instrument will almost certainly materialise too late to mitigate the impact of the global Covid-19 pandemic.
There is plenty of irony in the fact that while the European Union has led the push for a legally binding pandemic convention (see here and here), the EU continues to resist the proposal for a waiver of intellectual property rights under the World Trade Organisation’s TRIPS convention – in order to accelerate access to Covid vaccines and other technologies.
(See the TRIPS and Covid-19 waiver proposal here, and the EU’s counter-proposal here).
What do we know so far about the proposed pandemic instrument?
The World Health Assembly has opted for a World Health Organisation instrument, rather than a treaty negotiated under the broader, United Nations system, such as the UN Framework Convention on Climate Change.
There has been some drift in the governance of global health issues away from WHO in recent years to the broader UN system. This is illustrated by the High-level meetings of the UN General Assembly on non-communicable diseases (2011, 2014, 2018, 2025), the health agenda embodied within the Sustainable Development Goals, and many other instruments, strategies and processes. Of course, as the specialised health agency of the UN, the WHO remains centrally involved in helping to coordinate the response to many global health challenges.
The point, however, is that a multi-sectoral, all-of-government response is crucial if governments want to effectively tackle many of the world’s leading health challenges, from tobacco control to pandemics.
The envisaged pandemic instrument, however, will be a WHO instrument, overseen by a body that convenes the world’s health ministers, rather than heads of state. Implementation will be everything.
What kind of instrument?
Under the WHO Constitution, the World Health Assembly has authority to adopt conventions (Article 19), adopt Regulations (Article 21), or make recommendations (Article 23).
For the moment, all of these options are on the table.
This draft must then be presented to the intergovernmental negotiating body at its second meeting in August 2022 – by which time it is intended that the negotiating body will identify the constitutional basis for the new instrument: whether a convention, or regulations, or recommendations.
The intergovernmental negotiating body has been given a three-and-a-half-year timeline. It must present the outcomes of its deliberations to the World Health Assembly in May 2024 (WHA77), with a progress report to the WHA in 2023 (WHA76).
Relationship with the International Health Regulations
Legally-binding international instruments are rare in global health. Non-binding normative instruments (so-called “soft law”), are far more common: see discussion here.
Another binding instrument is the International Health Regulations (IHR) which (amongst many other things) impose obligations on WHO Member States to report and respond to events that constitute “public health emergencies of international concern”.
The IHR were revised and updated in 2003 following the SARS outbreak.
The limitations of the IHR, compliance problems, and lack of progress in implementation, have been investigated by many committees and expert bodies (see eg here, and here).
It’s safe to say that the failure of the IHR to effectively prevent and manage the Covid-19 pandemic, which has so far claimed nearly 5.6 million deaths, remains a driving force behind the WHA decision. What better illustration of the need for effective global governance of pandemics than Covid-19?
That doesn’t mean that any new pandemic instrument will replace or supplant the IHR. Far from it. The WHA decision calls for “coherence and complementarity” between the process of developing a new pandemic instrument and the work of the “Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies” (a group established at the World Health Assembly in May 2021) “particularly with regard to implementation and strengthening of the IHR” (see para 1(4) here).
I’m disappointed in Queensland’s Parliament, not for passing assisted dying legislation, but for consciously trampling over the religious beliefs of Catholic and other religious healthcare organisations.
Catholic hospitals are right to be aggrieved. It’s entirely predictable that church institutions are now considering civil disobedience. (See “Catholic Hospitals’ Revolt on Euthanasia” Weekend Australian 21-22 August 2021, p 4. See also here).
I mean, if you genuinely believe that intentional killing is wrong, you don’t just help it along because a bunch of politicians told you to, do you?
Catholic moral beliefs preclude intentional killing, yet Queensland’s law will force Catholic hospitals to open their doors and to facilitate actions to end the lives of patients in their care, on their premises, by non-credentialed doctors who do not share their moral values.
(I call this the “Dombrink thesis”, after American scholar Professor John Dombrink, who demonstrated the resilience of libertarianism, through – and despite – America’s culture wars. See here, here, and here.)
Recent assisted dying laws follow on the heels of two decades of reform that have greatly liberalised abortion laws in every State and Territory; see eg here, here, and here.
But if personal autonomy means anything, it ought to extend to those who, despite these changes, have a sincere, morally-grounded opposition to killing and assisted suicide.
In my view, co-opting religious health care organisations to facilitate euthanasia is a step too far.
For further detail on what Queensland’s new law will force religious health care facilities to do, see below.
Sharing the love? The importance of singing in church in the middle of a pandemic
Let’s be clear: not all complaints of discrimination or oppression, by churches, in Australia’s largely tolerant democracy, are worthy.
For example, in a Facebook post on 2 July, Pastor Brian Houston of Hillsong fame dismissed Covid delta outbreak restrictions that prohibited singing in church as “religious discrimination…so archaic it’s hard to believe”.
The intent of the restrictions, NSW Health advised, was to prevent transmission between, for example, a singing pastor, and people providing technical assistance during the livestream, given previous evidence of tansmission via singing in a place of worship.
NSW Liberal MP Tanya Davies raised Houston’s concern with Premier Gladys Berejiklian and Health Minister Brad Hazzard. Hazzard granted an exemption on 3 July, with specified safeguards: see here.
I suspect that quiet diplomacy by Houston would have been equally effective, if the need for religious leaders to sing directly to camera outweighed the importance of protecting others present in the venue from the risk of acquiring the highly infectious delta variant.
Moral arm-twisting in Queensland’s voluntary assisted dying legislation
While some complaints of discrimination by religious leaders are over-blown, I would put Part 6 of Queensland’s Voluntary Assisted Dying Act in a different category.
The new Act respects the right of a health practitioner not to provide information about voluntary assisted dying, nor to participate in the assessment process for lawful access to assisted dying that the legislation makes available (s 84).
However, Part 6 co-opts health practitioners and forces them to facilitate that assessment process, irrespective of their personal beliefs about the ethics of killing.
Let’s count the ways.
Firstly, a health practitioner with a conscientious objection must either refer a patient requesting information on assisted dying to an officially approved “navigator service” for assisted dying, or to a health practitioner who is known not to have moral scruples about assisted dying and may be willing to assist (s 84(2)).
Secondly, a “relevant entity” (meaning a health care establishment such as a hospital, hospice or nursing home) must not hinder a person’s access to information about assisted dying.
In order not to do so, the health facility must provide entry to a registered health practitioner, or member or employee of an approved navigator service in order to “provide the requested information to the person about voluntary assisted dying” (ss 90, 156).
Thirdly, the new Act requires a health care facility operated by a church or religious organisation to provide access to an (external) medical practitioner who is willing to act as the patient’s “coordinating medical practitioner” for the purposes of facilitating assessment and taking the various actions required by the legislation in response to the patient’s first, second and final requests for assistance to die (ss 9, 92-93).
If the medical practitioner requested by the patient is unable to attend, the religious health care organisation must facilitate the transfer of the patient to and from a place where the patient can formally request assistance from a medical practitioner who is willing to act as the coordinating medical practitioner (ss 9, 92(3); 93(3)).
Fourthly, the religious health care facility must facilitate the coordinating medical practitioner (or their delegate) to carry out a “first assessment” of the patient’s eligibility for dying assistance under the Act, either by permitting this to occur within the facility, or by facilitating transfer of the person to and from a place where the assessment can take place (ss 9, 19, 94).
The same obligations apply to the second, independent “consulting assessment” that occurs if the coordinating medical practitioner concludes from the first assessment that the patient is eligible for voluntary assisted dying (ss 9-10, 30, 95).
After making a third and final request, and undergoing a final review, an eligible patient may decide to self-administer a voluntary assisted dying drug or, if advised that this is inappropriate, may choose to have the drug administered by the coordinating practitioner (ss 50, 56).
This step triggers a number of authorisations, including the right to prescribe, supply, possess and self-administer, or administer the drug overdose to the patient (ss 52-53).
Again, the legislation requires a religious health care facility to provide access to the coordinating practitioner so that the patient can choose how the drug will be delivered – whether within the facility, or by assisting transfer and travel to a place outside the facility where these decisions can be made (s 96).
The facility must then provide access to the administering practitioner and witnesses to enable assisted dying to take place on the premises, and must not hinder self-administration if the patient has made a self-administration decision (s 97).
These statutory requirements honour the voluntary assisted dying principle that “a person should be supported in making informed decisions about end of life choices” (s 5(f)), and that “access to voluntary assisted dying…should be available regardless of where a person lives in Queensland” (s 5(e)).
Another principle recognised in the legislation is that “a person’s freedom of thought, conscience, religion and belief and enjoyment of their culture should be respected” (s 5(h)).
However, by forcing religious health care facilities to cooperate in processes whose central aim is intentional killing, (I am not here debating the rigour of safeguards) the legislation tramples over well-known and defended moral values that lie at the heart of professional, competent, yet religiously-informed health care.
The bottom line
Like abortion, assisted dying is one of the enduring ethical fault lines in medicine.
Politicians can’t legislate it away.
Part 6 of Queensland’s Act seems hell-bent on making victims of doctors and religious organisations that have long-standing, deeply felt moral objections to intentional killing.
There ought to be room in Australia’s liberal democracy for religious hospitals and hospices to offer their services, including high-quality palliative care, in accordance with long-standing ethical values, without putting euthanasia on the menu.
Patients who request assessment for assisted dying should be transferred to a facility where such actions do not offend long-standing institutional values, as provided in South Australia’s legislation, which recognises a right of conscientious objection for hospitals and other health care establishments (see s 11, although this does not extend to nursing homes).
These three appointments have tipped the balance of the Supreme Court strongly in favour of conservatives. The impact of a more conservative court in coming decades may be President Trump’s most enduring legacy. It is also likely to have a significant impact on American health law.
Constitutional human rights protections…and health
In many cases, human rights guarantees strengthen the protection of public health.
Take, for example, free speech. A free and fearless media is enormously important for its role in demanding government accountability. In authoritarian regimes and one party states, where genuinely free and fair elections only happen elsewhere, the lack of a free media, and the lack of media diversity mean that the government’s performance in addressing health risks rarely becomes the subject of public scrutiny or critique.
This diminishes accountability. (Yet it’s precisely this idea that the government is accountable to the people that is absent in authoritarian societies).
Freedom of speech and a free media also enable the sharing of information (fact, evidence) and opinion between citizens. This enables people to be informed, and it facilitates debate. It enables people to make their own informed choices, including during elections.
However, it’s not always the case that where the constitution guarantees human rights, that the vindication of these rights will advance the health of the population.
The protection of human rights, and health, are frequently, but in my view not always aligned (whatever the health and human rights school may assert).
This is partly because health is only one of a variety of values that are typically given constitutional protection. Other values include, as noted, freedom of speech, and freedom of religion.
It’s also partly because – in countries that guarantee human rights in their constitutions – the interpretation of the scope of the constitutional guarantee is a matter for the courts.
In countries where the courts are frequently called on to adjudicate on sensitive political matters, the appointment of justices to the highest appellate courts can become politicised.
This does not mean that Australia is not a liberal democracy; what it means is that the balancing of human rights considerations is ultimately a matter for Parliaments – and our democratically elected representatives – rather than for the courts.
New York State’s microcluster Covid strategy
New York State Governor Andrew Cuomo was well known for his daily briefings during mid 2020 as New York City bore the early brunt on Covid-19 infections in the United States. On 6 October 2020, Governor Cuomo signed Executive Order 202.68.
This order stated that the Health Department shall determine areas of the State that by virtue of being designated as red, orange or yellow zones, shall be subject to enhanced public health restrictions based on “cluster-based cases of Covid-19”.
In simple terms, yellow, orange and red zones were areas of the state where Covid-19 cases were rising. A red zone was an area where the 7-day rolling positivity rate was above 4% for 10 days, and red zone restrictions were intended to prevent spread from a specific area.
A yellow zone was a warning zone where the 7-day rolling positivity rate was above 3% for 10 days.
[Covid-related restrictions on freedom of expression and movement, on the other hand, were another story, particularly when it came to the right to participate in demonstrations, including those in support of indigenous rights and the black lives matter movement. See, for example, here, here, here and here].
At the time of writing (July 2021), New South Wales has been returned to hard lockdown in an effort to eliminate community outbreaks of the delta variant.
Self-evidently, these restrictions neither denigrate religion nor deny its importance in people’s lives. There are many religions in Australia, many people of faith. These restrictions are temporary, as the chronological record of executive orders illustrates, as Australian State governments have clamped down hard on outbreaks, and then opened up again.
You’ll find the full list of Covid-related public health orders, applicable to NSW, here.
Religion comes first
Coming right in the middle of the Jewish holiday of Sukkot (also known as the Feast of Tabernacles), Orthodox Jewish groups saw Governor Cuomo’s Executive Order as religious discrimination.
An orthodox organisation, Agudath Israel of America, and the Roman Catholic Diocese of Brooklyn, sought an injunction against the Executive Order on the basis that it violated the Free Exercise Clause of the First Amendment.
Although the Free Exercise Clause of the First Amendment refers to “Congress” (that is, the two Houses of Congress that are the supreme Federal law-making body), the constitutional guarantees also protect against interference by State governments, including Gubernatorial executive decrees.
A triumph for religious freedom…or viral spreading?
In Cuomo, the Supreme Court struck down Governor Cuomo’s order by a 5 to 4 majority.
The majority was made up of Justice Clarence Thomas, Justice Samuel Alito, and the three Trump appointees: Justices Neil Gorsuch, Brett Kavanagh, and Amy Coney Barrett.
Justice Gorsuch and Justice Kavanaugh also wrote concurring opinions. Chief Justice Roberts dissented, as did Justices Stephen Breyer, Sonia Sotomayer, and Elena Kagan.
The majority opinion is short. On p 3, the majority justices agreed that the applicants had demonstrated that the Executive Order was not “neutral” to religion because while a synagogue or church in a red zone could not admit more than 10 persons, these restrictions did not apply to a list of “essential businesses”, which included “acupuncture facilities, camp grounds, garages” and plants manufacturing chemicals and microelectronics”.
I dare say the risks of Covid spread are rather less in an acupuncture facility than in a congregation of the faithful belting out “Onward Christian Soldiers”, but the Supreme Court majority didn’t take the point.*
Having concluded that the law was not neutral, the majority then applied “strict scrutiny”: a standard of constitutional scrutiny that requires the government to prove that the law is “narrowly tailored” to serve a “compelling” state interest.
The majority accepted that stemming the spread of Covid-19 is a compelling interest, but concluded that the regulations were not “narrowly tailored” because there was no evidence of Covid outbreaks among the applicants’ congregations.
What kind of body count would have provided satisfactory evidence, I wonder?
The majority also thought that less restrictive rules could be adopted to “minimize the risk to those attending religious services”, including by linking the maximum attendance at a religious service to the size of the church or synagogue. “[E]ven in a pandemic, the constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty”, the majority wrote (p 5).
Justice Gorsuch and the protection of the public’s health
A feature of the opinions of the majority Justices is their relative lack of deference to the experience, competence or expertise of public health leaders in crafting pre-emptive measures to reduce Covid spread.
There is no recognition in any of the majority opinions that the risk of Covid spread in churches and other houses of worship, where singing or chanting takes place and where hundreds of people may huddle together, is any different from stores and shops, where people wear masks, and are not so tightly packed.
On p 3 of this concurring opinion, Justice Gorsuch pointedly criticised the 100 year-old case of Jacobson v Massachusetts. This was a case in which the Supreme Court upheld the right of the State of Massachusetts to require people to be vaccinated for smallpox, or pay a fine.
Justice Gorsuch pointed out (pp 3-4) that courts will apply rational basis review as the standard of scrutiny in their constitutional review of State laws, provided that fundamental or constitutionally protected rights are not implicated.
[Rational basis review is a lower level of constitutional scrutiny. To withstand rational basis review, the State must show that the State’s laws or actions are “rationally related” to a “legitimate” interest.]
However, Justice Gorsuch pointed out that religious activities must be treated “at least as well as comparable secular activities unless it can meet the demands of strict scrutiny” (p 4).
Justice Gorsuch (pp 5-6) goes on to criticise the opinion of Chief Justice Roberts, who dissented, and to surmise that the dissentients on the court wished “to stay out of the way in times of crisis”.
He continues: “[T]here is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”
The US has certainly struggled – really struggled – to effectively control the spread of Covid-19, and the world has looked on. The loss of life has been horrific, and extraordinary for such a wealthy, capable country.
Thoughtful commentary explores why: see, for example, here, here, here and here.
For lovers of democracy and human rights, America’s experience has been tragic in another respect: it adds heft to the narrative of autocrats and dictators that democratic government is ill-fitted to the challenges of the age.
What does make sense, in a democratic society where the rule of law operates, where elected officials are fulfilling the mandate granted by voters, is for them to be afforded a measure of deference – of operational space – to design instruments that prevent disease transmission and loss of life, in an environment that remains substantially uncertain.
If strict scrutiny is ever used as a weapon to paralyse government during a public health emergency, it will come at a price.
Why? Because swift and decisive government action to stamp out outbreaks of lethal variants is the key to saving lives, at least in countries where substantial numbers of the population remain unvaccinated. Viruses don’t care about human rights, and they never went to Law School. They don’t care if you are sincere in your beliefs or if you “truly believe”. They just jump from person to person when you get too close.
Ironically, when government does get it right, and no one dies, it all suddenly starts to look like overkill.
In his dissent, Chief Justice Roberts stated that: “[I]t is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic”.
His Honour wrote: “I do not regard my dissenting colleagues as “cutting the Constitution lose during a pandemic” or “shelter[ing] in place when the Constitution is under attack”.
Chief Justice Roberts then paraphrased Jacobson v Massachusetts (197 U.S. 11 (1905), 38, writing that “[o]ur Constitution principally entrusts [t]he safety and the health of the people to the politically accountable officials of the States to ‘guard and protect’.
It’s not clear, he says, which part of this phrase is so discomfiting to the majority justices.
Justice Breyer, in dissent, joined by Justices Sotomayor and Kagan, expressed similar sentiments (p 27/33).
What does seem clear, when you read the Cuomo decision, is that the new majority on the US Supreme Court will be far less likely to defer to expert opinion (however well founded) or to politically accountable State officials when it comes to scrutinising emergency regulations. It doesn’t bode well for elected officials seeking to discharge the one public duty that most libertarians would grudgingly concede: keeping the body count down during outbreaks of a deadly, contagious disease.
*Indeed, congregational singing was an interesting footnote in a subsequent case in which the Supreme Court struck down a Californian ban on indoor worship services. In South Bay United Pentecostal Church v Newsom, Justice Gorsuch wrote: “Of course we are not scientists, but….[e]ven in times of crisis – perhaps especially in times of crisis – we have a duty to hold governments to the Constitution” (p 5/15). It was left to Justice Kagan, dissenting with Justices Breyer and Sotomayor, to respond: “Justices of this court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging epidemic. The court orders California to weaken its restrictions on public gatherings by making a special exception for worship services….Under the Court’s injunction, the State must instead treat worship services like secular activities that pose a much lesser danger…” (p 10/15).
Sydney Law School will be offering Critical Issues in Public Health Law, a postgraduate unit that explores Australian and international responses to infectious disease, as part of its Master of Health Law, in semester 1, 2022. See here or here for more information.
His more recent comments to the media illustrate the challenges of attempting to investigate the origins of SARS-CoV-2 as part of a WHO-convened expert team (more of which below).
This post briefly reviews two current Covid-19 review processes, as well as recent media reports about the WHO-convened Covid origins study.
At the World Health Assembly on 19 May 2020, the Assembly adopted resolution WHA73.1 on the Covid-19 response that, amongst many other things, requested the Director-General to carry out a review on “lessons learned from the WHO-coordinated international health response to COVID-19”, including the functioning of the International Health Regulations and “the actions of WHO and their timelines pertaining to the COVID-19 pandemic” (para 10).
Independent Panel for Pandemic Preparedness and Response
This Panel is co-chaired by the Rt. Hon. Helen Clarke, the former Prime Minister of New Zealand who more recently was Administrator of the UN Development Programme, and Her Excellency Ellen Johnson Sirleaf, the former President of Liberia.
Other key messages from the Independent Panel for Pandemic Preparedness & Response:
Non-pharmaceutical public health response measures (such as social distancing, hand hygiene and wearing masks) will need to continue to be implemented at scale globally, irrespective of whether a vaccine is rolled out.
The global pandemic alert system is not working and needs to come into the digital era, enabling preventive actions to be taken within days, rather than weeks. The process for declaring a public health emergency of international concern is not working.
The IHR lack teeth, and the incentives are too weak to ensure compliance. The Panel put this conclusion in more modest language: “The incentives for cooperation are too weak to ensure the effective engagement of States with the international system in a disciplined, transparent, accountable and timely manner” (p 7).
Review Committee on the Functioning of the International Health Regulation
The Committee pointed to the lack of a robust accountability mechanism to monitor and incentivise compliance with the IHR, beyond the requirement for States Parties’ and the Director-General to report to the World Health Assembly on the implementation of the Regulations (Art. 54). A “robust system of compliance evaluation built into the Regulations” was proposed as one possible approach.
Recommendations to strengthen the IHR have been circulating for years. See here and here for short, helpful, reviews.
The Committee noted that “A peer-review mechanism, based on the Universal Periodic Review used by the Human Rights Council,” could be a useful way of strengthening countries’ levels of preparedness and response, and compliance with their legal obligations (para 18).
The interim report states that WHO requested verification of the initial reports on 1 January, receiving a response from the China Focal Point on 3 January.
Under the IHR, States Parties are supposed to reply to WHO requests for verification or further information within 24 hours (IHR, Art. 10), but the report notes that delay beyond 24 hours is not unusual.
The Committee stated that the timelines for country response are not realistic, given that social media can result in information reaching the public domain before a comprehensive risk assessment is completed. It also noted that “countries may be reluctant to report on events if they perceive consequences, mainly related to travel and trade, deriving from early notification.”
In an ideal world, perhaps borders could remain open and watertight screening, contact tracing and isolation measures could effectively prevent spread. But it’s a brave country that completely trusts its own implementation of these important public health controls: SARS-CoV-2 is devilishly infectious, and aerosol transmission can occur even when normal hotel quarantine and infection controls are in place.
Public health experts regard Australia’s travel bans as an important and necessary part of Australia’s successful response. For example, Duckett and Stobart regard “Australia’s decision to close its borders to all foreigners on 20 March to ‘align international travel restrictions with risks'” as a “turning point” in Australia’s response.
In her evidence to the Senate Select Committee Inquiry into Australia’s Response to Covid-19, Professor Raina MacIntyre, who leads the Biosecurity Program at the Kirby Institute at the University of New South Wales, described travel bans (border closures) as “the single most important measure” (para 2.43), a conclusion supported by this modelling study. Unfortunate – certainly, but necessary to avoid importing new cases.
WHO-convened Global Study of the Origins of SARS-CoV-2
In late January, an international team of virologists travelled to Wuhan on a fact-finding mission as part of a WHO-convened global study into the origins of SARS-CoV-2.
However, when you consider the scale of the death and economic harm caused by Covid-19, it is simply breath-taking that such an outbreak should go unexamined. Not surprisingly several inquiries are now proceeding.
Investigating the origins of SARS-Cov-2 was and is unavoidably sensitive, not only because it involves asking where the virus may have originated, and the conditions that facilitated its spread into the human population, but because the likely time period during which the first-observed cases arose goes to China’s level of compliance with the IHR, and the impact this may have had on the international spread of SARS-CoV-2.
The controversy surrounding the WHO-convened study has escalated since the international team left Wuhan.
Dr Dwyer also told the ABC that the expert team’s request to test stored samples of blood donations made in Wuhan around December 2019 was denied, apparently for legal reasons, although it might have given a picture of SARS-CoV-2 levels in the wider community at that time.
These sources of information might have given a clearer picture of whether and how much virus was circulating in the community prior to December 2019.
“We also know the Chinese were reporting the people who went to hospital were really sick,” Dr Dwyer said. “But we now know there’s a lot of ordinary transmission going on between otherwise healthy people, so there must’ve been many, many more cases in December than were identified.”
The scientists wrote that “We have…reached the conclusion that the joint team did not have the mandate, the independence, or the necessary accesses to carry out a full and unrestricted investigation into all the relevant SARS-CoV-2 origin hypotheses – whether natural spillover or laboratory/research-related incident”.
This seminar explores whether there is a right to protest during a pandemic, the tension between freedom and the policing of lockdown and social distancing measures, and the forms that protest might take in a liberal society.
The rule of law is the principle that law-making processes should be transparent, laws should be enforced fairly, courts and tribunals should be independent, and the administration of law and its substantive content should be consistent with international human rights standards (see here, p 7).
Director-General Beagle draws attention, firstly, to the way that the rule of law and the justice sector can temper raw political responses to epidemics, allowing “carefully tailored” emergency measures that “protect people from infection and disease, while respecting their civil, political, economic and social rights”.
For example, where legal or executive processes are used to create “disproportionately excessive powers”, international human rights law, and legal instruments such as the International Health Regulations, provide standards for restoring balance.
Secondly, Director-General Beagle points out that the rule of law “can be a lifeline for society’s most vulnerable in times of crisis. She writes:
“When freedom of movement is restricted and resources are scarce, feelings of stress, anxiety and alienation can exacerbate exclusion, discrimination and social fissures and have a disproportionate impact on people living in extreme poverty, women and girls, the elderly, children, people with disabilities, migrants, refugees and displaced persons, prisoners, and those living in situations of conflict and insecurity”.
Evidence of these social fissures is seen, for example, in rising rates of family and domestic violence since Covid-19 began, particularly against women and children. See here, here and here. UN Women calls this a “shadow pandemic”.
At times like this, the role of justice institutions and the rule of law is more important than ever to “protect the rights of the least powerful among us”.
Finally, Director-General Beagle refers to the rule of law in providing “concrete pathways for post-emergency recovery”, including by addressing the “socio-economic consequences of the epidemic”.
“This will require greater investments in public institutions and inclusive and participatory policymaking to help communities to come together and maintain social cohesion in the aftermath of this pandemic”.
Law’s mission in public health
Although commenting specifically on the rule of law, Director-General Beagle’s statement helps to identify some key features of the mission that law can have – in my view ought to have – within the arena of public health.
Law is a tool that can be used for deploying, but also constraining, political power. Wisely used, it can create an effective legal framework for health protection that is led by government, and informed by human rights.
However, in fulfilling its role in health protection, law’s role is not – or should not only be – to improve health “on average”, but to help tackle the factors that drive inequalities in health: the deep pools of disadvantage that persist even when average health improves. Health law work is certainly about improving average health, but it’s also about effective health protection for those who will be left behind – or trampled underfoot – if all we care about is the law of averages. A growing literature is beginning to document the social gradient of Covid-19 transmission, in the sense that economic and social disparities can amplify virus transmission, just as they amplify risks and poor health outcomes in other areas.
Finally, in speaking of law’s role in supporting “the resilience of communities against future crises”, Director-General Beagle also draws attention to the future dimensions of public health law. The purpose of public health law is not only to secure the present, but to create legal frameworks that will help to give future generations the opportunity to enjoy a healthy life.
Law’s mission in public health is ambitious, and the rule of law is a critical part of that mission. With Covid-19, global warming, and persistent epidemics of non-communicable diseases (and their risk factors) such as cancer, diabetes, and obesity, the need for health law specialists has never been greater.
Are you interested in studying health law? Click here,here and here for more details.
One reason why there is a measure of confusion about operational control during an outbreak of disease with pandemic potential is because of the different functions and responsibilities of the Commonwealth, and the States within a federation.
For example, even if the (modest) number of cases meant that an outbreak could be comfortably handled as a jurisdictional health challenge, the fact remains that early cases are likely to be imported into Australia, and border control is a Commonwealth responsibility (see eg the “National CD Plan”, pp 8-12).
It might be helpful to think about the escalation of government responses to a disease outbreak in terms of the following stages:
Although an outbreak may begin as a jurisdictional health challenge, the Commonwealth may become involved in coordinating and supporting the State/Territory response where there are “Communicable Disease Incidents of National Significance”.
As shown below, Commonwealth involvement may involve an escalation of governance arrangements in order to ensure a coordinated health sector response, or, in addition, to ensure a broader national response extending beyond the health sector requiring leadership at the highest political levels. This is shown below.
[Source: Emergency Response Plan for Communicable Disease Incidents of National Significance: National Arrangements (“National CD Plan”) p 4]
The “Coronavirus Emergency Response Plan” signals the existence of a national health sector emergency, based on anticipation of the potential for significant cases of community transmission to put pressure on State and Territory health systems.
The Plan explains the division of responsibilities between the Australian government, and the States and Territories, with respect to planning, surveillance, clinical services, public health measures, research and planning, and communication.
The Australian Health Protection Principal Committee, which comprises State and Territory Chief Health Officers and is chaired by the Australian Chief Medical Officer, is the key decision-making committee, within the health bureaucracy, for health emergencies. It is now meeting virtually daily and its statements on covid-19 are shown here.
In common with other plans, the Coronavirus Emergency Response Plan conceptualises the management of hazards in terms of a cycle of activities focused on: Prevention; Preparedness; Response; and Recovery.
Australia is currently in the response phase to the coronavirus (obviously). This phase is usually divided into three further stages:
action: initial action, and targeted action
The Plan identifies three scenarios: where clinical severity is low, moderate and high. It also points out that progress through the stages above (eg from Initial action to Targeted action) is independent of “activation of whole-of-government or jurisdictional plans”.
An all-of-government response to a national health emergency
By 27 February, the day on which the Coronavirus Emergency Response Plan activated a nationally-coordinated health sector response, an all-of-government response to coronavirus was also emerging, through the National Security Committee and the Council of Australian Governments (COAG).
The Prime Minister explained the role that the Border Force Commissioner, and the Ministers for Education, Home Affairs and Treasury were taking in strengthening the national response.
The Health Minister explained that the focus of the national response was moving from containment to planning for a significant increase in cases of community transmission – by focusing on the sufficiency of the national medical stockpile and personal protective equipment, and the capacity of health personnel to manage a surge in cases and hospital admissions.
Finance ministries now sit at the centre of Australia’s response to the coronavirus, attempting to mitigate the impact of sharp reductions in economic activity, spending and consumer confidence with first federal, and now state/territory stimulus packages.
The “National CD Plan”, which underlies these all-of-government efforts, was published in May 2018 and illustrates just how complex the response to “communicable disease incidents of national significance” really is.
On 13 March, the Prime Minister announced a “new National Cabinet, made up of the Prime Minister, Premiers and Chief Ministers” that will “meet at least weekly to address the country’s response to the coronavirus, COVID-19”.
This new cabinet will be advised by the Australian Health Protection Principal Committee (addressing health sector issues), and the National Coordination Mechanism convened by Home Affairs (addressing issues beyond the health sector).
Within the space of a few weeks, human coronavirus has gone from being a jurisdictional health challenge to precipitating new, creative cabinet structures to address its multi-sector impacts.
Who’s in control of Australia’s response to covid-19? Currently, a “war cabinet” comprising the leaders of all Australian governments.
Universities like mine are migrating their teaching online, in order to support social distancing efforts.
So who is running Australia’s response to covid-19?
Usually, when a disease outbreak occurs, it is dealt with by States and Territories using their own processes and resources.
As the scale of the threat, or impact, of an outbreak increases, State/Territory actions may be supplemented by national coordination and resources, within – and beyond – the health sector. State and federal Health Ministers may also formally declare a state of emergency, clearing the way for the exercise of potentially broad, executive, emergency powers.
Australia has robust operational plans and legislative frameworks for managing outbreaks.
But tracking government actions in terms of those plans, and relating actions back to the underlying legislative framework, is more difficult than it ought to be.
The distinctions between the various stages of the response are important because public health officials and political leaders may be exercising different legislative powers, and the public interests involved (including restrictions on civil liberties) will be balanced in different ways according to the scale of the threat and response.
Significant penalties may also be imposed for failure to comply.
Australia has a complex federal system. In understanding Australia’s response to coranavirus, I think it helps to distinguish between the activation and escalation of operational plans and frameworks, and the activation and escalation of legal powers.
This is Part 1 of a two-part post.
Jurisdictional health challenge: public health legislation
States and Territories have primary responsibility for responding to disease outbreaks under the Public Health Acts (in NSW, the Public Health Act 2010, and its regulations).
Key state functions include investigating possible cases, contact tracing, collecting surveillance data, treating sick patients, and public communications.
The listing of coronavirus also led to the activation of the National Incident Centre, and regular meetings of the Australian Health Protection Principle Committee – the key decision-making committee for public health emergencies.
Declaring that a disease is a “listed human disease” Under the Biosecurity Act 2015 (Cth) is a condition precedent to the Health Minister imposing enhanced border measures. These may encompass specific entry and exit requirements (ss 44-45), restrictions on incoming aircraft (s 49), and preventive biosecurity measures (s 51).
As explained in a previous post, the listing of coronavirus is also a condition precedent to the imposition, by human biosecurity officers, of biosecurity control orders on individuals.
These orders may encompass a range of specific measures, such as a requirement to remain at home (s 87), to provide body samples for analysis (s 91) or remain isolated at a specified medical facility (s 97).
The powers in the federal Biosecurity Act go well beyond those in the NSW Public Health Act in terms of seeking to balance the precautionary principle with the requirement for proportionality and the least restrictive alternative.
Subject to the appointment of state and territory public health officials as human biosecurity officers under the Biosecurity Act 2015, as envisaged by ss 562-566, these federal powers could be exercised and enforced.
Nevertheless, on a number of occasions Dr Murphy has suggested he will not exercise his coercive powers.
In a press conference on 29 January, he said: “For returned travellers from Hubei province, we are asking for them to remain isolated. We don’t intend to use enforcement powers”.
More recently he stated: “Under the Biosecurity Act in most cases I can compel people to have tests or be detained if they’re a biosecurity risk”. “[B]ut we don’t use those powers and hope never to use them. People are generally co-operative”.
Statements like this may be an attempt to calm people and to encourage voluntary cooperation, or might instead reflect the assumption that the States have adequate powers to enforce compliance with biosecurity controls.
Nevertheless, assuring people that biosecurity controls are voluntary is unhelpful if a deteriorating situation later compels their use.
It’s vital for the public to know when their cooperation is voluntary and when disobedience could result in penalties.
At any rate, it’s clear that since 21 January – when it became a “Listed human disease” under Commonwealth law, “human coronavirus with pandemic potential” ceased being simply a jurisdictional health challenge.
Escalation: national state of emergency?
Under the Biosecurity Act 2015, the federal Health Minister may exercise broad, emergency powers where the Governor General has declared that a “Listed human disease” constitutes a “human biosecurity emergency” (chapter 8, Part 2).
This is no longer an unrealistic scenario if Australia’s situation deteriorates. If the sharp rise in cases continues, it could support the case for mandatory, strengthened social distancing measures, agreed to by the National Security Committee and implemented by an executive instrument signed by the Health Minister (see ss 477-478).
The case for declaring a national state of emergency might also arise if the surge in cases of covid-19 overwhelmed the capacity of the health care system to treat cases effectively.
I’m surprised that schools are still open in NSW and that more limiting social distancing measures have not been put in place.
The Australian Health Protection Principal Committee, not to mention the National Security Committee, will be deliberating these matters, informed by models of likely spread if various drastic – and not so drastic – restrictions are imposed. Keeping the economy running, and businesses solvent, is also critical.
Under the International Health Regulations, which govern global management of infectious disease outbreaks, a declaration that a PHEIC exists is a prerogative of the Director-General, and triggers the requirement to issue temporary recommendations, after receiving information from the Emergency Committee (See IHR, Arts. 15, 49).
You can see the WHO Director-General’s recommendations to the People’s Republic of China here. (And see here for the most recent WHO situation reports).
2019-nCoV was first identified in Wuhan, China, around 12 December.
As at 6 February 2020, over 28,060 cases had been identified in China, with 564 deaths; 24 countries outside China have also identified cases, with one death confirmed in the Philippines.
In Australia, as at 6 February, 15 cases of 2019-nCoV had been identified in 4 States: 5 in Qld, 4 each in NSW and Victoria, and 2 in SA. You can see latest updates for Australia, and other resources here.
You can see a timeline of events from Australia’s perspective here, and from a US perspective here.
From a legal perspective, how is Australia managing the risks posed by 2019-nCoV?
Australian citizens currently in China are permitted to re-enter Australia, but must self-isolate for 14 days. This means not attending public places including work, school or university, or childcare, not allowing visitors into the home and wearing a surgical mask if it becomes necessary to leave the home for medical treatment. See here.
With the exception of the blanket travel ban, which a number of other countries including New Zealand, and the United States have also imposed, Australia’s response remains low-key.
States and Territories are primarily responsible for managing outbreaks of infectious diseases within their territories, and this remains the case with 2019-nCoV.
The Commonwealth, on the other hand, has “primary responsibility for international border surveillance and responding to public health events occurring at international borders”: see the National Health Security Agreement (para 22).
The Australian Government Department of Health website states that:
Australia has not yet imposed centralised control or activated the coercive powers that are available if this outbreak were to gain momentum.
In Australia, the Australian Health Protection Principal Committee (AHPPC) is the peak body for national emergency health planning, preparedness, response and recovery during public health emergencies. AHPPC is administered by the Office of Health Protection, a division of the Australian Department of Health.
The National Health Security Agreement identifies a number of potential triggers for a coordinated national response, led by the AHPPC, with operational control vested in the Director of Human Biosecurity. However, it remains for the Commonwealth to assess whether the risks of disease transmission are so significant that they require a centralised, national operational response (see para 24).
An audit of the Health Department’s coordination of communicable disease emergencies notes the relative ambiguity of the conditions that would justify a national operational response (see pp 30-33, 47).
With travel bans keeping imported cases to a minimum, and limited scope for significant person-to-person spread within Australia, the States and Territories will very likely continue to retain operational control.
For example, under ss. 44-46, entry and exit requirements (as distinct from recommendations) may be imposed on classes of people to prevent the spread of a “listed human disease”, and there are civil penalties for failing to comply.
Similarly, individuals can be subjected to a “human biosecurity control order” containing any of a number of specific “biosecurity measures”, including isolation measures (s 97), restrictions on movement and behaviour (s 87), and the requirement to undergo examination and provide body samples (ss 90-91).
However, as s 44(1) and s 60 makes clear, these powers apply to a “listed human disease”: they exist to prevent a “listed human disease” from entering or spreading in Australia.
Section 42 contains the test that the Director of Human Biosecurity (the Commonwealth Chief Medical Officer) must apply before he or she lists a human disease. (The test is whether the disease is communicable and may cause significant harm to public health, and if the Director of Human Biosecurity has consulted with the chief health officers of the States and Territories.)
While there is nothing in principle to prevent the Chief Medical Officer from issuing a legislative instrument making 2019-nCoV a listed human disease under s 42, I am not aware that this has happened.
This does not mean that self-isolation “recommendations” are voluntary. It simply means that cases or contacts entering Australia are subject to the relevant State or Territory legislative framework that governs disease spread.
In NSW, “Novel Coronavirus 2019” was scheduled under the Public Health Act 2010 (NSW) by executive order on 21 January. As a result, a number of statutory obligations and public health powers thereafter apply to identified cases, and to those who have come in contact with a case.
For example, 2019-nCoV is notifiable by medical practitioners and laboratories (ss 54-55). A person infected with 2019-nCoV who is in a public place must take reasonable care not to spread the condition (s 52), and the Secretary of the NSW Health Department may direct a person to undergo medical examination on reasonable suspicion that they represent a risk to public health (s 61). There is a financial penalty for non-compliance.
If a person who is infected with or has been exposed to 2019-nCoV is behaving in a way that will likely endanger the public’s health, the Chief Health Officer of NSW can make a public health order requiring the person to refrain from behaviour that places others at risk and to undergo medical treatment and testing (s 62).
These are time-limited orders not exceeding 28 days (s 63) which can be reviewed by the Civil and Administrative Tribunal and, where necessary, extended (ss 65-66). Failure to comply with a public health order may result in a substantial fine (up to $11,000) or imprisonment.
These muscular State (and Territory) laws are, of course, premised on an infectious condition being scheduled under the Act, and on there being an adequate case definition to identify cases and contacts.
Early on in an outbreak of a novel infectious disease, a precise, workable case definition may not exist, together with information about modes of transmission, incubation period (prior to symptoms) and capacity for pre-symptomatic transmission. See here for the somewhat unwieldy definition of a “suspect case” of 2019-nCoV adopted in NSW, and Victoria, respectively.
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