To be really effective, law has to be simple. The greater the ambiguity, the greater the confusion. It must also be enforceable.
Often we fail to abide by law because there is no one to remind us of an obligation. Further, to work properly law must have public support. Without public support a democratic people will either ignore it or remake the law by electing another parliament and another government.
There are two laws in South Australia right now that may struggle to pass these tests, even though there is some good in both of them.
First, we have our fruit fly laws. Biosecurity in Australia is dictated by the Commonwealth Biosecurity Act passed in the days of the Abbott parliament, with corresponding legislation in the states. It encompasses human, animal and plant diseases, and thus applies equally to fruit fly outbreaks as it does to COVID-19.
What is wrong with our fruit fly directives currently made by PIRSA under these laws? In short, they are confusing. If Boris Johnston was in town he might explain it like this: ‘You may carry the right fruit from the right postcode, the wrong fruit from the right postcode, the right fruit from the wrong postcode, but not the wrong fruit from the wrong postcode unless the wrong fruit is prepared right’. I think.
So I sat with my work colleagues this week, musing that some of us could bring ‘lawful’ bananas to work, some could not as they would be ‘unlawful’ bananas, even though those who could not bring bananas could go to the same shop as the lawful banana buyers, and have bought the same banana, transported it home to eat it but not seal it in a bag and bring it to work. They would have to rely on the lawful banana bringers for that, as long as those people take the right route to work.
But we were all misled. It turns out, I think, that you can’t bring anything to work on the ‘wrong’ list. Except if you live and work in the same postcode.
Indeed there has been so much hullabaloo about school lunches, that the majority of the rest of the population doesn’t actually realise we are subject to these laws as well. Worse still, the school rules differ from the general rules so I can’t fathom how we can get it all to work.
It also means that the majority of South Australians are likely doing the wrong thing without realising it. Through ignorance, many will be in breach of the law. People are in outbreak areas who don’t realise it, and fruit is everywhere like a game of Fruit Ninja.
These laws and directives are well intended. We have a valuable fruit industry to protect. But will they ultimately be effective, or effective as they should be?
The second set of rules and directives regards QR codes and their use in the face of COVID-19. Here, businesses subject to the requirement to have a COVID-19 plan and engaged in a defined public activity must have a QR code for smart phones to read, or provide a non-electronic sign-in for luddites, radicals or the forgetful. It is described as a Public Activities Directive. What is wrong with that then?
We were all probably relaxing into our lives of bureaucratic surveillance with a degree of reluctant acquiescence, when the Chief Public Health Officer Professor Spurrier gave a hint of how health bureaucrats might actually like it to play when she suggested we should hang onto it post-COVID-19. What?
Now as I have said in these columns before, the office of the Chief Public Health Officer is not to concern itself with matters economic and neither matters of privacy or civil rights. We also collectively have an enormous respect for the work of our current Chief Public Health Officer. Her motive no doubt is public safety.
However, this is fundamentally crossing the line. This system works because of the will of the people, not the laws themselves. Indeed on the face of it, the Directive is inherently ambiguous. If a customer does not use the QR code they ‘may be refused entry’. Respectfully, let’s not test the patience and the will of the people by suggesting government surveillance on our every movement for the rest of our lives is in our best interests. As V of Vendetta fame said, ‘people should not be afraid of their government, government should be afraid of their people’.
Premier Marshall was quick to dispel it but it is an insight into the thinking of bureaucracy, which is compartmentalised into its own threads of interest, influence and obligation, often missing the big picture.
The other problem with the QR rules is that they are not enshrined in law. That is to say, there is personal data collected and stored by our government that is not subject to the protections of an Act or a Regulation passed by the parliament.
It is a classic stretch of executive government, bypassing the parliament to regulate the people.
All for the best of intentions of course – but that is what we are always told.
I have said before that I draw comfort from the fact that our State Controller under the Emergency Management Act is the Commissioner of Police, not a politician as in other states. That said, he is also a police member and it only by his assurance that we are led to believe that police will not obtain data collected from our QR readers to use against us. I don’t for a moment suggest our Commissioner and State Controller should not be taken at face value, but to obey law we must trust law.
As it is, we lack adequate privacy laws in our state. A system designed around a public sector undertaking to just do the right thing simply isn’t good enough. These rules are an extraordinary invasion of privacy. They may also be unenforceable before the courts, not that that is where anyone wishes this to go, explaining perhaps the ‘may’ rather than ‘must’.
Moreover, by necessity we have made business the policeman, with varying results. It is onerous on business to do so, and whilst I’m sure many businesses welcome the QR system if only to open their doors, the mere suggestion that that obligation could be permanently built into the cost of trading in South Australia is ludicrous.
Our fruit industry in South Australia is hugely important and is to be protected. Our QR system has worked well for SA Heath and our contact tracers and is in many ways deft and ingenious. However none of these things mean we must suspend a proper analysis of the law and the principles underlying what our executive government and public sector agencies are obligating the whole of the South Australian public to do. One does not have to oppose laws to want to make them better. Where law is concerned, the devil is always in the detail.
And as Boris Johnston so ably reminded us by his unforgettable and utterly confusing attempt to elucidate the Brits ‘work from home’ rules, communication of law is also critical.
But that is a job for ministers and public sector leaders. What they should have at their disposal to undertake that obligation is clear, comprehensible and enforceable law that gives confidence to the public, or it will make it all the more difficult next time.
Don’t concern yourself with the future. Get this lot right first.
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.
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