Self discipline before involuntary compulsion

Week by week, our perspective changes. As the numbers of sick and dying continue to climb worldwide, the Australian people are being asked what sacrifices we are willing to make to protect our most vulnerable.

The novel coronavirus (COVID-19) was first identified in Wuhan, China in December 2019. Over the intervening months, the World Health Organisation has declared a pandemic and the virus has spread across the globe with catastrophic consequences. As we see the numbers of cases rise on our shores, governments have been responding by reforming legislation and activating emergency powers.

The philosophical basis justifying public health measures such as detention, travel restrictions and business closures is utilitarianism. Government action and policies which impact the rights of the few can be considered acceptable, if there is greater benefit to society at large. It is arguable that the greater the public health threat, the greater the justification for intruding upon individual rights and liberties.

However the state's power to compel citizens is a blunt instrument and undesirable in the first instance. Education of the public and voluntary compliance with government advice should always be the first tool in the public health response. Government measures should also be proportionate to the threat and the least restrictive option available.

Coronavirus is spread by respiratory droplets, including by asymptomatic carriers and with a considerable incubation period of up to 14 days, which poses unique challenges in controlling the pandemic. This has required governments to restrict travel, prevent mass gatherings and quarantine people who may be infectious to reduce spread. The Australian states have utilised two legislative frameworks in responding to the crisis. The public health acts, which are designed to respond to individual notifiable disease threats, and the emergency management acts.

In New South Wales, the Minister has broad powers under the Public Health Act 2010 to give any direction to address public health risks. For example, multiple directions have been issued to quarantine people who returned from overseas travel, to forbid mass gatherings and close businesses. From 30 March 2020, a stay at home direction will be in force for 90 days, except for certain exemptions such as exercise or work.

New amendments to the New South Wales Act empower police officers to arrest people who they suspect on reasonable grounds to be contravening a coronavirus public health order. Police must then return the person to their usual place of residence or place of detention. This power is limited by a 12 month sunset clause.

In Victoria, a state of emergency was declared under the Public Health and Wellbeing Act 2008. This activated the Chief Health Officer's emergency powers to detain or restrict the movement of any individual or group and give any direction to address the public health risk. These powers have also been used to restrict gatherings, quarantine travellers and close businesses. As in New South Wales, a stay at home direction has been made, but is limited to 14 days duration.

South Australia pushed through rapid reform of the Public Health Act 2011. The power to give directions and detain was extended beyond people who have contracted the disease or have been exposed to it. Now directions or detention orders may be given even to people who simply 'could have been' exposed to a condition. This could conceivably include anybody in a suburb with reported coronavirus cases, irrespective of actual contact.

Of most concern, the South Australian power to issue warrants for the apprehension of people with a disease have also been extended. A warrant may now be issued for people who may not know they have the condition and whose conduct is creating a risk to others. Furthermore, even people who are not creating a risk to other people, may be apprehended where an order cannot be served upon them despite reasonable efforts. A similar power to issue warrants exists in Victoria, but anticipates orders having been made first with reasonable attempts to educate the person.

This raises the possibility that vulnerable members of society, such as those with mental health conditions who may be difficult to contact, may first discover they have a disease by the arrival of police officers upon their doorstep. The presence of a doctor or nurse in these situations is vital to support the person and explain the medical ramifications of their condition.

In order to prohibit gatherings and direct isolation for people crossing the border, unlike Victoria and New South Wales, South Australia has relied upon the Emergency Management Act 2004. As with the Victorian state of emergency which only lasts for 4 weeks unless extended, these powers cease when the emergency ends.