The Lack of Proportionality in COVID-19 Decision-Making

November 2, 2021 Updated: November 3, 2021


Many people reminisce about the last time they were sitting on a plane to visit their favourite holiday destination.

In November 2021, the disruption to people’s lives will enter its 20th month. During that time, Australia has witnessed the imposition of draconian restrictions, which involve serious violations of human rights, and the rise of authoritarianism with Australian characteristics.

Australian Commonwealth and state leaders are obsessed with numbers. As soon as a few infections occur, preparations are made immediately for a lockdown because they want to pursue a zero infections target.

This pursuit is as fanciful as it is unattainable as the failed lockdowns in New South Wales (NSW) and Victoria have demonstrated.

Like in Europe, Australians will eventually have to learn to live with the virus.

In their pursuit of an unattainable zero infections rate—“zero” being an appealing number in politics, also in the context of Australia’s decision to pursue zero carbon emissions— governments have been responsible for the imposition of the most intrusive legislation this country has ever seen.

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Police tackle demonstrators during a rally protesting the state’s strict lockdown laws in Melbourne, Australia, on Sept. 5, 2020. (William West/AFP via Getty Images)

Conor Friedersdorf, a writer from America, questions whether Australia is still a liberal democracy when it “indefinitely forbids its citizens from leaving its borders, strands tens of thousands of its citizens abroad, puts strict rules on intrastate travel, prohibits citizens from leaving home without an excuse from an official government list, mandates masks even when people are outdoors, and socially distanced, deploys the military to enforce those rules, bans protest, and arrests and fines dissenters.”

Of course, there are enough commentators within Australia who answer Friedersdorf’s question in the affirmative.

For example, Australian commentator Kevin Donnelly notes in an article that, “Victorians have been refused the right to visit dying family and relatives, homes have been invaded by the police, small business owners driven into bankruptcy, and students forced to learn as best they can from home for weeks and weeks on end.”

For sure, one is amazed by the absurdity of the regulations imposed by health administrations on people.

These regulations are examples of capricious authoritarianism, with children prevented from visiting their dying parents, police wrestling women to the ground, handcuffing a pregnant woman in her own home, and strangers dobbing in a former Prime Minister of Australia for not wearing a mask.

There is no doubt that the pandemic managed to display an ugly side of Australia.

Undoubtedly, the health bureaucracies of the Commonwealth and the states have adopted oppressive policies, arguably to safeguard the health of its citizens.

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Victorian Premier Daniel Andrews speaks to the media at the daily briefing in Melbourne, Australia, on Aug. 12, 2020. (Darrian Traynor/Getty Images)

However, the unrelenting and inflexible use of power has transformed Australia into a bureaucratic and illiberal state.

This transformation disregards the principle of proportionality. According to this principle, government decisions should be logically and cogently related to the objectives it wants to achieve, in this case, the fight against the COVID-19 virus.

Measures that are disproportionate would therefore be unnecessary and violate this principle.

Of course, throughout history, governments have overreached to deal with serious challenges.

For example, following the Peterloo Massacre on Aug. 16, 1819, the Parliament of the United Kingdom exceeded its legislative power by adopting the so-called Six Acts to prevent protests that called for radical electoral reforms.

These acts were disproportionate and panic-stricken responses to the protests and abrogated people’s rights.

Why do political leaders, regardless of party affiliation, resort to the adoption of disproportionate measures in the pursuit of their aims?

One answer proffers itself: to show their electorate that they are strong leaders. Such an approach to governing may well be successful, at least temporarily.

CNN journalist Luke McGee, after noting that the COVID-19 pandemic has enabled world leaders to tighten their grip on power, expresses his concern that, “as the world comes to terms with its way of life, citizens become numb to what were initially extreme and extraordinary measures.”

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A COVID-19 warning sign is seen at Bondi Beach in Sydney, Australia, on July 10, 2021. (AAP Image/Mick Tsikas)

However, common sense suggests, and experience confirms, that disproportionate measures are not indicative of strong leadership.

Instead, only a measured and proportionate response to a crisis exemplifies strong leadership.

Australian governments, in imposing intrusive COVID-19 restrictions on people, routinely violate the principle of proportionality.

Indeed, the governments’ power grab has spawned the adoption of ludicrous, inconsistent, and incoherent regulations and misguided policies. It suffices just to give some examples.

The Queensland state keeps its borders shut and refuses to allow applicants—call them COVID-19 refugees—from NSW or Victoria to relocate to Queensland.

Queensland refuses to grant these applicants permission to enter the state on the ground that it excessively burdens the quarantine hotels.

Yet even a cursory review of the two quarantine hotels on the Gold Coast reveals that there is substantial accommodation capacity for other applicants. But the exact number of people allowed to relocate to Queensland is shrouded in mystery.

The sanctimonious and smug promises that the border might be re-opened in time for Christmas, or even earlier for fully vaccinated people, is an offensive and disagreeable display of power.

During the last couple of days, the lower house of the Victorian Parliament adopted radical anti-democratic legislation to better fight the COVID-19 pandemic and future pandemics.

Specifically, the proposed legislation would allow the premier to govern the state by decree without having to seek the prior approval of parliament.

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A woman holds a banner during a protest in Melbourne, Australia, on Oct. 30, 2021, to oppose the Victorian governments pandemic legislation. (Supplied)

To that purpose, the legislation even allows differentiation between people on the ground of their vaccine status while claiming that the legislation is consistent with Victoria’s Charter of Rights. The Minister of Health would also be able to make health orders under the proposed bill.

The danger is that when governments change as might happen eventually, these odious laws will remain on the statute book. It is uncertain that a new government would have the capacity or the will to repeal these laws.

Victoria’s opposition leader, Matthew Guy, has given an “absolute guarantee” that the Liberal Party will repeal this legislation when it comes to power.

History will reveal whether this promise is a mere puff or a genuine attempt at restoring parliamentary democracy in Victoria, which respects the application of the principle of proportionality.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland, and served as pro vice-chancellor and dean at Murdoch University. In 2003, Moens was awarded the Australian Centenary Medal by the prime minister for services to education. He has taught extensively across Australia, Asia, Europe, and the United States. Moens has recently published two novels “A Twisted Choice” (Boolarong Press, 2020) and “The Coincidence” (Connor Court Publishing, 2021).