Australian democracy is not on COVID-induced life support
In 2020, American governments decided that it was acceptable to overwhelm their health system, permanently maim a potentially innumerable number of people with post-COVID syndrome, while slaughtering six hundred thousand of their own people in defence of their citizens’ right to go to a Denny’s. In 2021, the Australian states, who decided not to accept this outcome, ordered restaurants to use Uber Eats and click-and-collect: How utterly Orwellian?
At least, reasonable controls on movement during a pandemic being “Orwellian” appears to be the position of writer Conor Friedersdorf who sensationally questioned in The Atlantic whether or not Australia remains a liberal democracy.
His analysis lacks an engagement with the broader history of national emergencies in consolidated democracies and seems oversimplistic.
The principal problem with Friedersdorf’s arguments, as pointed out by many Australian commentators, is that (to plagiarize the words of Jason Wilson) virtually all of these measures have been imposed by “strident popular demand”, they were “demanded, not imposed”. The means for imposing these restrictions, the various pieces of state public health legislation, was given to government by democratically elected state and federal parliaments.
Friedersdorf admits as much in the closing line of the article in which he says that Australia’s future as a liberal democracy is dependent on “whether they want to be free”, suggesting that the Australian citizenry are still in control.
In addition, the way in which the federal government has managed the pandemic has been undeniably shaped by public reaction. Although the federal parliament enacted a significant rewrite of quarantine laws in 2015, the federal government has made limited use of them, in part because their more unorthodox approaches to the legislation have resulted in backlash and the government is seen as obsessed with its public image. After being accused of doing little for over a year, the Prime Minister gave a late-night press conference that seemed almost perfectly tailored around then-salient public anger over the vaccine roll-out.
Earlier in the pandemic, when right-libertarians were demanding the “Sweden model” of letting the bodies pile high to save the economy (which, by the way, worked no better than Australia’s lockdown policies — both retracted economies by around 8%), the popular consensus was a collective groan.
In any event, the idea that temporary limitations on civil liberties imposed by a democratically elected government to control crisis is a harbinger of doom for a consolidated liberal democracy is a perspective that is not borne in the historical experience.
For example, World War II-era Britain was portrayed as a beacon of liberal democracy in a time and place in the world where dictatorship was in vogue: yet Chamberlain and Churchill’s wartime governments indefinitely interned people without warrants, imposed widespread censorship on the press, opened and edited people’s mail, rationed supplies heavily, and repeatedly postponed elections.
COVID-stricken Australia has not randomly jailed people, it has not censored the press or public opinion, it has not instituted mass warrantless reading-and-editing of people’s communications, there is no rationing, and four state elections have gone ahead on schedule (or even earlier than schedule) and been carried out fairly without any reports of irregularities.
A national election is happening “sooner we might think” and, whatever the government thinks, must happen by May next year at the latest. There is currently no suggestion that this election will not go ahead or, if defeated, the government will not respect the outcome.
The only comparable aspects of these two societies are that both took great advantage of delegated legislation to quickly impose restrictions deemed necessary to alleviate threats. In WWII-era Britain there was an Emergency Powers Act which enabled the Cabinet to do virtually anything without parliamentary approval. In Australia, there is the earlier referenced Biosecurity Act and the various State and Territory Public Health Acts which are similar except that they are restricted to matters about quarantine and public health respectively, only available on advice from civil servants in health policy and can be overruled by parliament.
The right to protest has been limited, as Friedersdorf points out, but this is a consequence of movement restrictions, not because protest and dissent has been specifically singled out. In parts of the country that are not subject to lockdown orders, such as northern Queensland and Western Australia, protests — even for unpopular ideas from “dissenters” such as the anti-vax movement — are still alive and well despite governments pleading with people to stay home where possible.
The public and government already understand these restrictions are temporary and that they are set to be lifted in tranches after the vast majority of the population are vaccinated. Friedersdorf’s article presents this concept as a novelty, speaking of “promising murmurs” of vaccination targets by state premiers in the past few days as opposed to being the nationally agreed plan for the better part of the two months.
Throughout the article, Friedersdorf points to government webpages he deems to be contradictory: particularly one from AGD intended for government lawyers that points out that the ICCPR guarantees freedom of movement. If he had bothered to scroll down on the page he was referencing, or look up the ICCPR itself, he would know that the freedom of movement guarantees have always been subject to reasonable limitations imposed by law for reasons explicitly including “public health”.
“The [free movement rights] shall not be subject to any restrictions except those which are provided by law, are necessary to protect […] public health […] and are consistent with the other rights recognized in the present Covenant.”ICCPR, Article 12, section 3
As Friedersdorf points out, the High Court has already determined that the freedom of movement restrictions were enacted according to law for the constitutionally acceptable purpose of managing public health risks. He also notes that Australian institutions operated differently in previous pandemics but denounces “Orwellian” border controls: ignoring that similar restrictions were imposed in those same pandemics.
Mind you, his argument is that these controls are “Orwellian” because they will soon make use of a facial recognition app used to ensure that people who are supposed to be in quarantine don’t leave until they are allowed: something that has happened numerous times in this pandemic, in one case causing a wave of infection in Victoria that caused eight hundred deaths. I would argue that such an app is, by its very nature, narrowly tailored for the purpose of enforcing quarantine restrictions.
Public derision and controversy over the Federal Government’s arguably more invasive COVIDSafe contact tracing app saw it turning from being hailed as “sunscreen” for the pandemic to quietly fading away in the background.
Friedersdorf fails to mention this behaviour and presents no reason why the public would not be able resist any other app deemed unreasonably intrusive as has happened in the past. If public outcry grew large enough (as with the COVIDSafe app), governments would be forced to relent if they wished to be re-elected, as no doubt all of them do.
That is not to say that the Australian and state governments’ response to COVID-19 has been entirely without misconduct or error, and one could, as Friedersdorf does, list a whole range of slip-ups and bad decisions. That’s not evidence of the end of Australian democracy, it’s evidence of human error.
In closing, I think the culture clash that Friedersdorf’s article represents is that democracy tends to be presented by Americans as a series of inalienable values. It is, in fact (as I have discussed before), a set of processes based in popular consent and demand. In Australia, the people commanded, and the government has (broadly) obeyed. The structural features of these processes — the rule of law, parliamentary responsibility, and free and fair elections — have not been dismantled and, crucially, nobody is considering doing so. For these reasons, I don’t find Friedersdorf’s article particularly convincing.
Post image © Sam Wilson (CC BY SA)