Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Quick Post: Understanding the law about a public health emergency (ACT focus)

Like most people, it was difficult to make sense of all the chatter on social media about the ‘public health emergency’ that had been ‘declared’ by various States and Territories.  Was it a bit of political theatre, or were specific legal powers being invoked?  Many people had fairly reasonable questions about what it actually meant, and there were vague ideas bandied about that you could accidentally end up facing criminal penalties for ordinary behaviour, like going to work or school.

Because I live in the ACT, this post has an ACT focus.

Today, the ACT Minister for Health, Rachel Stephen-Smith, ‘declared’ that a ‘public health emergency’ exists for a period of five days.  This was done through a piece of delegated legislation: Public Health (Emergency) Declaration 2020.

‘Declaration’ can have a wide variety of meanings (even within legal contexts) but, in this instance, it’s a specific legal concept: the delegated legislation pronounces some fact.  The fact being declared is that a ‘public health emergency’ exists, and that this will be a fact for five days.

Why five days?  Why not for four weeks, like in Victoria?

The Public Health Act 1997 only allows for public health emergencies to be declared in the ACT for five days, with the option to increase it by two days at a time.

You might reasonably ask: ‘Why does this need to be declared?  Isn’t it obvious?  There’s a disease.  We’re all worried about containing it.  People will die!  It’s obvious that this is a public health emergency!’

This declaration makes other powers available to authorities under the Public Health Act 1997.  Without the legal fact of the public health emergency, these powers are unavailable.

So what are these powers?  In the ACT, the fact that a public health emergency has been declared vests rather amazing powers in the Chief Health Officer.  The appointment of Chief Health Officer, just for information, was also declared through a similar instrument: Minister Stephen-Smith appointed Dr Kerryn Coleman.

Here’s what Dr Coleman can do: any action, or give any direction (orally or in writing), he or she considers to be necessary or desirable to alleviate the emergency specified in the declaration.

That’s pretty wild.  Not only actions that are necessary, but also any action considered desirable.

The power is extremely broad. Dr Coleman could order a person to undergo medical examination, or remain away from a particular place.  She has the authority to require a person to do ‘any other specified action’ if she thinks it desirable or necessary.  If she thinks it would help stop the spread of disease to shut down our Legislative Assembly, she has the power.  She can close down the courts.  She even has the power to direct the police to shut down roads.  She can do all of that provided that she thinks it’s necessary or desirable to do so.

That was information that we needed this morning.  For the next five days, we are giving the Chief Health Officer extraordinary powers.

Further, if a person does not comply (and they lack a reasonable excuse) they face an $8,000 fine (unless they’re a ‘utility’, in which case the fine is $320,000).  Again, information that we probably needed this morning.

What is interesting is that the declaration of an emergency does not immediately entail any specific act.  If a declaration is made, you can still have gatherings of more than 500 people, shake hands, and sneeze directly into other people’s mouths… until the Chief Health Officer says that you cannot.  This was also information that was needed this morning.

The theatrics of declaring a public health emergency are, in my view, unhelpful. They encourage panic and uncertainty, rather than informed concern.  The ACT only has two confirmed cases.

Part of the problem is, again, federalism.  To get a coherent, consistent message across, should the ACT impose the same conditions on everybody as are proposed for Victoria and NSW?  Further, things which make sense in one State or Territory (shutting down public transport, for example) might make a more sense (on balance) in a congested city than in the ACT where average trips are much shorter and there’s significantly less risk of community transmission.  But should consistency prevail for the sake of clarity?

This sort of reasoning is important because it affects the way we think about a lot of areas of law.  Something might be reasonable in one circumstance, unreasonable in another, but the public perception might not be able to distinguish between the cases.  Certainly on Twitter, there is an absolute reluctance to believe that authorities and experts know what they’re doing, and that self-declared (or, worse, media-declared) experts on social media are better sources of information.

But that puts an onus on authorities to make sure that they’ve got the clarity and consistency of message, especially when they want people in the community to do (or not to do) something.  In the case of the public health emergency declaration, we really needed people to emphasise what the consequences of the declaration will be and that people need to keep an ear on what the Chief Health Officer is directing.


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