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Who's really responsible? The legal framework for lockdown

Opinion

Ignore the uninformed commentary about South Australia’s lockdown and who’s responsible – Morry Bailes explains the legislative framework that allowed South Australian authorities to effectively detain most of the state.

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There are many opinions about whether our COVID-induced lockdown was justified, unjustified, the Premier’s fault, the Chief Public Health Officer’s fault, no-one’s fault, the ‘pizza guy’s’ fault, and so on and so forth.

As always, everyone is an expert, particularly opinion editorial writers such as we find in The Spectator who blamed the Premier and his ‘health minister Nicola Spurrier’. Don’t let facts get in the way of a good opinion piece, wrong in fact and law…

This column has been a while in the making. I attempted to publish something last week as a legal explainer to accompany what we thought was happening with the initial reimposition of restrictions, but that was completely overtaken by the Peppers/Stamford/Woodville Pizza Bar events and our total lockdown.

Now that everyone has had their say I feel a little late coming to the party. However, it is still possible to explain what just happened from a legal point of view, which may be helpful. It seems most commentators have overlooked the most basic fundamentals of how exactly in law you can detain almost the entire population of our state with barely any notice in conditions that ordinarily only a criminal court could impose with a home detention order (except amongst a few other things, our access to alcohol evidently and counter-intuitively to assist instances of family and domestic violence and alcoholism).

Unlike in some other states in Australia, say Victoria, the decision to lock us all down is actually not a decision of the Health Minister, nor is it the Chief Public Health Officer, or the Premier. It is not a decision of the Parliament, although the Parliament did legislate to allow the recent process to occur so it is ultimately responsible. In point of fact, it is not a political decision at all, although no doubt soundings are taken of the Premier and responsible ministers with related executive powers such as the Health Minister under the Public Health Act and related legislation. And no decision of such gravity is taken without recourse to expert medical advice from the Chief Public Health Officer and SA Health.

However, somewhat uniquely in South Australia and with a certain irony, the power to lock us all down in our homes actually belongs to the State Coordinator, a position created under the Emergency Management Act to manage a major emergency in our state. The coordinator’s powers are vested holus-bolus in the Commissioner of Police. It is that office that signs the directive for us to stay at home, defines exceptions, such as designated essential workers, and specifies why and in what circumstances you may leave your home. [You will be relieved to learn that one of those exceptions applied to cases of family and domestic violence, say if that supply of liquor had the reverse effect to what was evidently intended.]

The Commissioner of Police signed the Emergency (Stay at Home)  (COVID-19) Direction in the ultimate exercise of executive power on November 18, effective 12.01am on the 19th, and then undid it by a revocation signed after the discovery of the alleged lying and now much-vilified chap who failed to tell us all he was working at the infamous Woodville Pizza Bar.

So why is all the commentary treating this as if this was a political decision, as happened in Victoria and Queensland where the power to restrict residents is actually vested in the Health Minister?

First, it would be naive to not presume a decision of this gravity is not a shared decision. Second, the Chief Public Health Officer and SA Health do have powers vested in them under their Act.

Nonetheless, our State Parliament has vested an enormous amount of executive power in an unelected, albeit commissioned, Officer of Police – that power that we have all been subjected to whether we agreed with it or not, whether it harmed us or helped us, and, most significantly, in respect of which we were powerless but to comply lest we commit an offence. To hold the power to detain the best part of 1.7m + people. Wow! So much for those lists purportedly showing us the 50 most powerful people in South Australia.

The level of disinformation and lofty, yet very stupid, commentary that I have read since this whole event started has topped anything I have ever encountered before.

The rise and rise of executive power is not new in Australia and the population and the Parliament has been warned time and time over by the legal profession of the consequences of donating power to unelected people.

First began the erosion and diminishment of the common law by the parliament and the rise of law on the statute books. The idea of small government is frankly impossible, a chimera, when one looks at the groaning reams of statute law. And when we see something that we regard as needing a fix in our society, what do we do? We demand that parliamentarians make yet more law, even better when it can be named after a real but dead person, and even if we already have law enacted to deal with the very circumstances contemplated in ‘Johnny’s Law’ or ‘Mary’s Law’.

Our statutes got so complicated that we started hiving off much of the real detail into regulations. Then those too got complicated so we just gave it to Ministers and civil servants by way of discretionary executive power because surely they could be trusted. I have even had a junior civil servant from Home Affairs look me square in the eyes and utter the sort of line that I had until that point believed only existed in a Monty Python script: “I can’t tell, you’ll just have to trust us.” After stifling a laugh, I realised he was actually serious.

So if you want to join the line of people who wish to criticise last week’s lockdown I ask you this: did you know who made the decision and signed the directive? Did you acquaint yourself with the provisions of the Emergency Management Act? Do you in the same breath complain about lawyers railing about civil and political rights and freedoms? What do you think about those lousy “civil libbers”? The ones who are always suspicious when we gift executive power to people who are faceless, largely unaccountable but can impact our lives in ways we haven’t yet imagined and only ever will when we peer inside every Act, every Regulation and every investment of executive power?

In the meantime, the Commissioner of Police did not ask for the power to lock us all down under the Emergency Services Act – it was given to him by the parliament we elected presumably because it thought operational decisions like this were better taken by an expert than a politician. If you don’t want this type of executive decision made, then lobby your local member to change the Act and return the power to the Parliament or the Minister. I’m fairly convinced the Commissioner won’t be too cut up about not having to shoulder the responsibility. But please spare us all the ill-informed commentary wrong in fact and law, and expect that we should take any notice whatsoever. The level of disinformation and lofty yet very stupid commentary that I have read since this whole event started has topped anything I have ever encountered before.

Finally, if we want to hold our politicians to account for these decisions perhaps a starting point might be to ask them to stop delegating their power and make them! Nowhere in the remit of either the Commissioner of Police or the Chief Public Health Officer is consideration of what their decisions mean for business: they are concerned with safety and public health. However, be careful what you ask for: rule by committee rarely has good outcomes, and politicians can’t be objective.

Last week’s lockdown may have been bizarre and unexpected but it was made by a person with no motive other than our welfare in mind, was over in less than a week—not 111 days—and, without remarking on whether it was the right decision, the wrong decision or a bit of both, I sure as heck prefer to be a South Australian than a Victorian.

Morry Bailes is Senior Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.

Disclosure: He is a member of the Liberal Party.

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