Rule of law meets Covid-19

In the space of just a few weeks, the rule of law in Australia has both triumphed in the High Court’s judgement in Pell v The Queen and taken a battering from state governments’ social distancing rules under emergency powers invoked in the name of fighting Covid-19.

The rule of law does not mean imposing the iron fist of a police state, shades of which are to be found in the states’ restrictions. It means, among other things, transparency and lack of ambiguity in the law and the absence of arbitrary action in its application and enforcement.

Most of us accept the need for some social distancing rules to apply for a short period, but the current restrictions go to absurd lengths, lack clarity, leave too much leeway for arbitrary action by officials – and for all those reasons offend against the rule of law.

The relevant NSW ministerial order, for example, includes a list of acceptable reasons for people to leave their place of residence and puts all other reasons – a very large and unspecified residual – as in the unlawful category. This approach offends against the very idea of a free society in that it is a law defining what we CAN do, not what we CANNOT do. Free societies don’t need to be told what they can do.

The inconsistencies, ambiguities and potential for misinterpretation in the NSW order abound. Little wonder that people don’t know what they can and can’t legally do and police and bureaucrats are making up their own interpretations as they go.

The rule of law isn’t like a decoration to be taken down when it becomes inconvenient to the exercise of state power. It is there to protect our freedoms from abuses of state power. The Berejiklian government should immediately rescind this repugnant ministerial order and replace it with something that is less restrictive, unambiguous and defines what residents of NSW cannot do, not what they can do.

In the meantime, it would not be surprising if everyone in possession of one of those on-the-spot police fines exercises their right not to pay it and to have their case heard by a court.

This is an edited extract of an opinion piece published on Spectator as The Koronavirus Keystone Kops threaten our health and our liberty