10 December 2022

Civil liberties are important – even in a pandemic

The pandemic bill was passed in parliament late last year. Picture: Kincuri is licensed under CC BY-NC 2.0

By Susan Pennings

19 January 2022

Heavy lockdowns, restrictions on movement, and limits on gatherings have all been new features of life in Australia since the COVID-19 pandemic hit. The curtailment of our previously assumed freedoms has raised questions about what is justified in response to an emergency, and what is not, seen in the debate about the Victorian government’s recent “Pandemic Bill”. Here healthcare ethics PhD graduate Dr Susan Pennings, whose research focuses on health care resource allocation, value in healthcare, and medical ethics, gives her thoughts. 

People are divided on whether restrictive measures to stem the spread of COVID-19 are a justified response to the pandemic. In Melbourne, there have been numerous protests about vaccine mandates, lockdowns, and the new public health legislation. Conversely, other people support restrictive public health measures to stop the spread of COVID-19, because they believe that saving lives and protecting health are more important than civil liberties. 

This topic has caused a lot of heated arguments, but there has been surprisingly little discussion on what civil liberties are, why they are important, and what kinds of restrictions might be justifiable during an emergency such as a pandemic. 

What are civil liberties? 

When people talk about civil liberties, they are usually referring to rights and freedoms which everyone is entitled to. There is widespread agreement internationally about the importance of basic civil liberties, such as freedom of speech, freedom of religious belief and practice, freedom of association, freedom of movement, and freedom of assembly. 

Basic civil liberties are important for many reasons. They provide protection for the individual against arbitrary government power. They protect members of minority groups from mistreatment from the majority. And from a Christian point of view, they are an expression of the dignity and importance of each individual as a person made in the image of God.   

Assessing restrictions on civil liberties 

Governments around the world have severely restricted even basic civil liberties in measures to stop the pandemic’s spread. For example, regions in Spain have imposed curfews, restricting freedom of movement and association. In California, the state government banned all indoor worship services to stop the spread of COVID-19, a significant restriction on religious practice. In Sydney and Melbourne, anti-lockdown protests were shut down by police due to breaking emergency pandemic regulations, thus restricting freedom of speech and assembly. 

It may be inevitable that governments will impose measures restricting civil liberties in an emergency. However, this doesn’t mean that people must uncritically accept any action that a government takes in a crisis. It is important to have a framework for assessing government restrictions on civil liberties in an emergency, to assess whether these measures are justifiable.  

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I believe that a good framework for this purpose would be to insist that government action in an emergency is transparent, consistent, accountable, time-limited, and proportionate to the risks. 

Transparency means more than just making the restrictions and rules public. Governments should also make public the reasoning, assumptions, evidence, uncertainties, and trade-offs which led to their decision. There are limits to transparency, for instance, it wouldn’t require releasing confidential data on individuals to the media. But it would, for example, require government to put epidemiological models in the public domain for scrutiny. Transparency helps to protect people from arbitrary restrictions, and is fitting for a democratic society where government is “by the people”. 

Consistency means treating relevantly similar situations in a similar manner. This means that people and groups must be treated fairly and equally. For example, if mosques are closed due to the risk of COVID-19 transmission then churches would also need to be closed for the same reason. 

Accountability means that restrictions should be subject to appeal and revision in a transparent manner. This would mean that a person or organisation was entitled to ask for their case to be reviewed if the restrictions were extremely burdensome for them or not feasible to follow in their particular situation. It would also mean that politicians and senior public servants should have to explain and justify their actions, for example to an independent ombudsman or the media. This provides a check on government power against individuals. 

Time-limitation means that restrictions on civil liberties should not be indefinite or constantly extended. Restrictions on civil liberties should be for the purpose of addressing an unforeseen, short-term crisis, not for medium- or long-term management of risks. Clear time-limits prevent governments from gradually making restrictions on civil liberties seem normal and permanent. 

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Proportionality means that the severity of the restrictions should be in proportion to the severity of the risks of the emergency situation. For example, if COVID-19 had one hundred times the mortality rate that it in fact does, then more restrictive measures would be warranted than currently. The requirement of proportionality prevents governments from using an emergency as a pretext for expanding their power in other domains, or expanding their power to an extent that is not required for addressing the crisis situation. 

This set of criteria is intended to allow governments to respond effectively in a crisis while retaining safeguards to protect citizens against undue coercion and domination.  

Assessing restrictions on civil liberties – pandemic legislation 

Having a framework like this enables people to make more nuanced judgements about government action and legislation.  

The Victorian Parliament passed the Public Health and Wellbeing Amendment (Pandemic Management) Act in December after a heated public debate. While it is always difficult to assess a piece of legislation before it has been put into practice, the new act seems to have some aspects which meet the criteria of the framework and others which do not.  

The act does contain measures to support accountability and transparency. The Premier must have reasonable grounds to declare a pandemic, and a court can scrutinise whether this condition is met. A majority vote of a joint sitting of the Legislative Assembly and Legislative Council would be able to “disallow” the Premier’s public health measures, preventing them from taking effect. The act also contains a provision which requires a review by a panel of independent health experts and lawyers after eighteen months.  

However, other aspects of the act are more ambiguous. For example, it allows for public health restrictions to apply differently to people depending on characteristics such as age and vaccination status. Whether this would result in inconsistent government action would depend on how it was applied in practice. Some governments around the world have used public health laws as a pretext to discriminate against minority groups, while others have used them legitimately to save lives.  

It would also be difficult to know whether restrictions are disproportionate to the risks without seeing them applied to a specific case. Even relatively small fines for disobeying public health orders can result in substantial hardship for those on low incomes, or if people are fined repeatedly.  

The act does not appear to be time-limited in the way that the framework would recommend. For example, the new legislation allows a pandemic to be declared for three months at a time, but does not appear to have a limit as to how many times this could be extended. While a pandemic may exist over an extended period of time, this does not mean that emergency powers which restrict basic liberties are appropriate for an equally lengthy period. 

Even in emergency situations such as a pandemic, governments should focus on respecting people by  consulting with them and persuading them, rather than by coercing them or violating their basic civil liberties. By examining why civil liberties matter and how we can assess government actions, I hope that we can come closer to a government which responds effectively in a crisis to save lives while also respecting people’s rights. 

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