COVID-19 – Quis custodiet ipsos custodies? Administrative Law and COVID-19 (23 April 2020)

Whilst digesting some of the continual communication relating to the emergence of COVID-19, I was today reminded about the vital role lawyers as a profession play in the administration of justice within Australia’s legal system. That led me to consider the related issues of the “rule of law” (the equal application of law on governments and their decision makers) and the nature of our democracy based on the separation of powers within a democratic federation.

I also reflected about what, if anything, had happened to the rule of law and the various protections of our freedoms as a people within Western Australia with the emergence of COVID-19.

Because I cannot resolve my internal debates about the above described issues, I decided to endeavour to create some discussion about them by penning some thoughts. That discussion might give me and others a different perspective and, thereby, some clarity.

One of the responses to COVID-19 is the use by various people (not elected) of the power delegated to them by various statutes. The results of the exercise of such power are generally known as administrative decisions. These administrative decisions are the subject of control by administrative law.

Some administrative law is contained within statute. In other instances, it forms part of Australia’s common law.

That administrative law applies as a further shield (as part of the rule of law) against abuse or misuse of administrative power by decision-makers, as a check and balance to ensure that administrative power is exercised only after considering the most up-to-date information and placing appropriate weight on relevant facts (a snapshot of the actual tests).

The administrative law regime generally requires decision-makers to consider material both for and against any proposed administrative decision before they make the decision.

The COVID-19 response in Western Australia provides an interesting case study against which to test the rule of law, the separation of powers and the application of relevant administrative law requirements.

For example, how did (does) a public servant in the form of the Commissioner of Police make decisions removing the freedoms of Western Australians to gather, operate their businesses, move freely within the State or to visit the entire Rottnest Island Reserve?

Did the Commissioner make such decisions in conjunction with our State Government? If so, did that offend the concepts of the separation of powers? Did the Commissioner, and other public servants that have made recent administrative decisions, apply the accepted principals of administrative law? Or, is the doctrine of the separation of powers, the principals of administrative law and the rule of law suspended during the period of time of the COVID-19 response in effect, allowing effectively unchecked power?

For example, if the Commissioner removed the right of people in Western Australia to visit the Rottnest Island Reserve to enable the Government to protect the people of Western Australia from the Western Australian passengers of the Vasco Da Gama cruise ship, why was the entire Rottnest Island Reserve needed or restricted? Why did that restriction not just apply to that part of Rottnest Island affected by the impending and subsequent arrival of those passengers? And, why now that those passengers have apparently left Rottnest Island and the Vasco Da Gama has left Australian waters, does the restriction on the whole Rottnest Island Reserve remain in place? In effect the Rottnest Island Reserve is now a place “of the Government” and not “of the People”. Is this an appropriate continuing response? Or, is this an example of a continuing over-reach (or more pejoratively an abuse of power)?

Why has the exercise of the power giving back such freedoms not been made as quickly as that which took the freedoms away? Where did the Commissioner record his administrative considerations that support his decisions creating internal boarders within our State and removing Western Australian populations’ freedoms? What is the trigger to cause the Commissioner to make a new decision removing those restrictions or, is there no such trigger?

Should that material be broadly available to the people of Western Australia without the need for specific requests?

Whilst it appears that we all understand the need for a rapid and coordinated response to the COVID-19 pandemic, that response should be and must accord with the rule of law, the separation of powers and the laws effecting administrative decision-makers.

Whilst it is reasonable for us to choose to cede our freedoms for the apparent greater good, it remains necessary to ensure that any removal of our freedoms is the appropriate response in the appropriate measure for the appropriate period of time; because that is fair. It is incumbent on the decision-makers to act fairly.

The Western Australian Government and the Commissioner of Police have been doing a difficult job in extremely difficult circumstances and this discourse is not a criticism of them. However, the question, remains, who is “watching” the administrative decision makers? Any failure of the “watchers” or lack of transparency might convert the willingness to “social distance” into social dissonance (or, eventually perhaps dissidence).

The State institutions and offices continue to have our trust and support whilst we retain our right to express an opinion or to ask questions.

Similarly, we trust and support our clients by providing to them our considered advice about and within the law including in support of the administration of justice in matters of dispute resolution and prosecutions.

Part of our broader responsibility is to remain vigilant and be willing to ask questions and to foster conversations about broader issues within our legal system. We do that by our representation on various boards and committees and by our willingness to step outside the comfort zone.

We apply the same courage to our work for our clients as their legal partners.

If you value critical and deep independent thought to assist you, please contact us.

We stand by to assist you with accurate independent legal advice and information.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.

Emma Leys – Partner –

Peter Mariotto – Special Counsel –