Australasia
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Abbas, Muhammad Zaheer, ‘Australia Must Support a Temporary Waiver of Intellectual Property Protections in Response to a Future Pandemic’ (SSRN Scholarly Paper No 4664627, 14 December 2023) Abstract: In times of pandemics, the Australian government must intervene through policy and legislative measures to protect the public interest. In response to the COVID-19 pandemic, the Australian government failed to take a clear position on intellectual property (IP) and access to vaccines, therapeutics, and diagnostics. Instead of fully supporting the TRIPS Waiver proposal aimed at addressing vaccine inequity, Australia remained non-committal in times of serious public health crisis. In response to a future pandemic, the Australian government must take a clear and strong position on IP in favour of equitable and universal access to vaccines, diagnostics, and therapeutics. Recommendations: 1. To safeguard the public interest, Australia needs to appreciate the importance of temporarily waiving IP protections to scale up production and supply of vaccines, diagnostics, and therapeutics in response to a pandemic.2. In the WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response (Pandemic Accord), Australia needs to fully support temporary waivers of IP protections.
Abbas, Muhammad Zaheer, ‘The Right to Repair Medical Equipment in a Health Emergency: Australia Needs to Reform Its Patent Law’ (SSRN Scholarly Paper No 4525042, 1 July 2021) Abstract: The right to repair is not merely a legal concept but is a matter of life or death when it comes to fixing critical medical devices in a health emergency like COVID-19. Time delays in accessing repair information and repair services may result in preventable loss of human lives. Hospitals cannot wait for days or even weeks for an authorized technician because patients cannot be made to wait if a ventilator or defibrillator goes down. In such a situation, healthcare providers, facing life-threatening logistical problems, cannot and should not rely on optional goodwill and benevolence of profit- driven manufacturing corporations. Corporations are expected to pursue profit- maximising strategies. They do not like competition and look for strategies to extract recurring revenue from their patent-protected products. They like to dominate markets by having exclusive rights and by extending their exclusive rights. It is duty of the Australian government to intervene through policy and legislative measures when the public interest is actually or potentially undermined, especially in times of emergencies. The COVID-19 crisis exposed vulnerabilities of supply chains and put global healthcare systems under critical strain. It highlighted the importance of 3D printing and the right to repair medical devices. The Australian government’s policy and legislative response is required to address the imbalance between the corporate interest and the public interest in the context of the right to repair. There are substantial barriers to repairing medical equipment even during a health emergency. There is a pressing need to think about the existing gaps or imbalances in Australia’s patent laws and policies. Patent rights should not be allowed to stand in the way of saving human lives. Australia needs to use the impetus of COVID-19 to reform its patent law. There is a pressing need to legislate a more robust and explicit right to repair and to provide explicit defences or exceptions for the right to repair medical devices in response to the current and future health crisis.
Abbas, Muhammad Zaheer, ‘Vulnerable Supply Chains in a Health Emergency: Australia, Local Manufacturing and 3D Printing’ (SSRN Scholarly Paper No 4525041, 1 April 2021) Abstract: The response to the COVID-19 crisis highlighted the weaknesses of the free trade system and failures of the traditional supply chains. Public health preparedness for future pandemics demands nation-states to increase their local production of medical supplies in order to reduce their dependence on third countries. Globally connected local production, enabled by digital fabrication tools, is arguably the best policy response to collaboratively address supply-chain vulnerabilities. 3D printing technology, which is the most prominent manifestation of digital fabrication ecosystems, can play a key role in enhancing the local production capacity in a time- and cost-efficient manner. This submission calls upon the Australian Government to increase its focus on local production of personal protective equipment (PPE) and proposes a more systematic and organized use of onshore 3D printing capabilities to address shortages of critical medical equipment in a health emergency. This submission also addresses intellectual property dimensions of local manufacturing with a key focus on compulsory licensing of patents, Crown use, and the right to repair patent protected devices to address shortages of critically needed medical equipment.
Ahmed, Shakoor and Larelle Chapple, ‘Corporate Response to Modern Slavery Risks Induced by COVID-19: Business as Usual?’ (2022) 37(3) Australian Journal of Corporate Law 203–229 Abstract: The inaugural round of Australia’s modern slavery reporting in December 2020 coincided with the COVID-19 global pandemic. COVID-19 has disrupted the usual reporting obligations by companies required to address the risk of modern slavery in their supply chains. This article focuses on Australian companies’ compliance with their disclosure obligation by specifically testing whether and how companies responded during the first year of the COVID-19 pandemic with the key aim to recommend improvement to future reporting. Using content analysis to examine the first modern slavery statements submitted by Australian companies, the research finds more than half of the modern slavery statements did not disclose COVID-19 issues related to modern slavery risk. The findings inform the public demand for improved accountability and transparency to ensure the human rights of vulnerable workers. This article provides an overview of modern slavery risk challenges due to COVID-19 and how companies can improve their resilience and reduce modern slavery risks related in modern slavery reporting.
Allman, Kate, 'Courts: Jury trials to resume from 15 June' (2020) (67) LSJ: Law Society of NSW Journal 22 Abstract: After a two-month hiatus due to COVID-19, jury trials will resume in NSW with strict new hygiene measures for anyone attending court.
Allman, Kate, 'COVID-19: Events suspended; hearings move online, but rule of law will continue 'to the extent possible'' (2020) (65) LSJ: Law Society of NSW Journal 16 Abstract: Courts have suspended face-to-face hearings and asked they be heard via telephone or online in a bid to follow "social distancing" recommendations and stem the spread of coronavirus in NSW.
Allman, Kate, 'Hot topic: Legal threat or mere puff?' (2020) (66) LSJ: Law Society of NSW Journal 24-25 Abstract: As COVID-19 spreads around the world, some groups have begun looking to the courts to seek legal reparations for the economic and societal damage it is causing. But can you sue a government for a global pandemic?
Allman, Kate, 'Police state or safety net?: How NSW entered a strange "new normal"' (2020) (66) LSJ: Law Society of NSW Journal 30-35 Abstract: Never before have Australians seen laws that limit freedom and civil liberties to the extent the new COVID-19 social distancing measures do. The restrictions have successfully helped "flatten the curve" of new COVID-19 infections in NSW but, in doing so, may set a sinister precedent for the rule of law.
Allman, Kate, 'Privacy concerns over mobile tracing app' (2020) (66) LSJ: Law Society of NSW Journal 22 Abstract: Legal bodies have sounded alarm bells over the federal government's plan to release a mobile-tracing app that would help track the contacts and movement of people infected with COVID-19.
Allman, Kate, 'Protesting a pandemic: Do we have a legal right?' (2021) 81() LSJ: Law Society of NSW Journal 24-25 Abstract: When freedom of movement puts healthcare in jeopardy, and democratic rights clash with human rights, which comes first? Kate Allman explores the legal tensions of protesting public health orders.
Allman, Kate, 'Technology: NSW allows witnessing documents via video call - but are there privacy risks?' (2020) (67) LSJ: Law Society of NSW Journal 14 Abstract: As office spaces have been forced shut by COVID-19, many law firms have shifted the bulk of their legal work online in the space of a few weeks. Some have been left wondering whether this rapid transition could introduce previously not-contemplated privacy and security risks for lawyers and their clients.
Andrews, Mark, 'The Times Are A-Changin' with COVID-19: and Law Firms Show They Can Adapt' (2020) May Australasian Law Management Journal 1-5 Abstract: During the past few months, lawyers and their teams have been forced to make significant changes to the way they work on a day-to-day basis because of the COVID-19 crisis, but is this just a temporary hiatus in change resistance for the profession? Mark Andrews urges firms to think about change beyond the pandemic.
Anniwell, Brin and Alanna Van der Veen, 'Practice and procedure: Navigating the new normal: The virtual court' (2020) 67() LSJ: Law Society of NSW Journal 74 Abstract: Wherever possible, NSW courts are proceeding with hearings by audio-visual link ('AVL'). Courts have a discretion as to whether a matter should proceed by AVL. In some circumstances, it may be unfair to a party to proceed in that fashion. Just as it is important to employ persuasive techniques in the physical courtroom, so too is it important in the virtual courtroom: prepare and plan accordingly. Know your AVL technology and prepare your workspace in a way that conveys professionalism, minimises distractions and establishes a connection with the bench.
Arup, Christopher, ‘Liberty or Protection? Making Law for Employment and Social Security’ (2022) 31(3) Griffith Law Review 361–396 Abstract: Recent disruptions to the usual working conditions, such as the pandemic, highlight the insecurity of the minimum waged, casually employed working poor; they also point up the precarity of the heavily indebted, over-worked middle-class. Contrasting the cause of social protection with that of market liberty, this study examines the terms of the security debate to see how the cause of protection seeks to counter the cause of liberty. It reviews three recent regulatory events to see what success the cause of protection has had: the industrial relations reform process, the government response to the COVID-19 pandemic, and the agenda setting for women’s economic security. It notes the reforms that Australia’s new Labor government proposes. The study recommends that, if reforms are to be effective, the cause of protection must move beyond the particulars of the labour contract to address the structures of power in the political economy of law making.
Ashby, Scott, 'Sanitised perspectives from below the bench: Coordinating COVID safe proceedings at the supreme court of Tasmania' 1(39) University of Tasmania Law Review 39-46 Abstract: At the Supreme Court of Tasmania, the primary function of a judge's associate is to coordinate proceedings in court and in-chambers. There are many moving parts to any given court proceeding, and it is an associate's job to ensure that all the parts are in the right place at the right time. Pre- COVID (indeed since 1824) the majority of court proceedings would take place in court that is to say, in a court room full of people including judges, security staff ajudge's attendant, ajudge's associate, lawyers and their assistants, public spectators, witnesses, defendants, and prison officers. This commentary speaks to some of the changes in court proceedings one judge's associate observed at the Supreme Court during the height of the COVID-19 pandemic in Tasmania
Askola, Heli, ‘A Proportionate Response Is the Maximal One? Economic and Social Rights during the Pandemic’ (2022) 28(1) Australian Journal of Human Rights 118-138 Abstract: This paper analyses how responses to the COVID-19 pandemic have interacted with economic and social rights during the first two years of the pandemic (in 2020 and in 2021) in the Australian state of Victoria. The pandemic has naturally focused attention on health, resulting in much government action to protect public health by preventing COVID-19 infections. However, Victoria’s multiple lockdowns have also imposed heavy socio-economic burdens, which have been unevenly spread, exacerbating the vulnerable positions of already marginalised groups and individuals. In addition, in contrast to what was hoped for by some commentators, the crisis has failed to bring about fundamental change in economic and social policies undermining the enjoyment of economic and social rights. The reasons behind these outcomes can be located, most obviously, in the blunt approach chosen early on that characterised the pandemic response throughout. However, they also resulted from limited consideration of the demands of economic and social rights, including their inherent tensions and inter-relationships, and from lack of attention to existing inequalities.
Babie, Paul T. and Charles J Russo, 'If Beer and Wrestling Are “Essential,” So Is Easter: COVID-19, Freedom of Religion or Belief, and Public Health in Australia and the United States—Why Rights Matter' (2020) (55) New England Law Review 45 Abstract: This article contains four parts. Part I sets out how FoRB concerns raised by opponents of the restrictions that have been raised in a variety of locations would be dealt with under the Australian Constitution. We begin with this Australian analysis first because it serves as a proxy for a jurisdiction which has no constitutional protection of fundamental rights and freedoms, such as FoRB. This analysis suggests that these excesses might go without remedy when rights are not protected. The American analysis demonstrates what happens when rights are protected. Part II turns to an analysis of the same restrictions pursuant to the American First Amendment right to free exercise of religion. This part, too, serves as a proxy for how these restrictions can be dealt with in a jurisdiction which provides for comprehensive constitutional protection of fundamental rights and freedoms. Our objective is to demonstrate that when rights are protected, the correct approach to dealing with the restrictions is to balance the need to preserve public health while respecting the right to FoRB for all. Part III provides concluding reflections on why protecting FoRB matters. Safeguarding religious freedom matters because in the absence of protection for rights, the sorts of excesses which encroach on FoRB might, almost imperceptibly, creep far beyond the violation of but one right to deny many rights which form the core principles of liberty, freedom, and the rule of law itself—concepts which underpin the very nature of democratic government.
Bagaric, Mirko, ‘The Crime of Criminalising Everyday Life: The Rule of Law Discarded in Victoria’s COVID-19 Response’ (Report, Institute of Public Affairs, 21 September 2022) Abstract: The criminal law was the main instrument employed by the Victorian government to force Victorians to comply with the strictest COVID-19 lockdown in the world. This report argues that the criminal law should never again be used as a blunt instrument of oppression to achieve health objectives.
Bagaric, Mirko, 'Editorial: Can the pandemic induced fall in prison numbers lead to durable principles sentencing reform??' (2020) 5(44) Criminal Law Journal 273-274 Abstract: The COVID-19 pandemic has had a negative impact on nearly every section of society. One exception is incarceration levels. As has been previously noted in this journal, Australia has experienced runaway prison numbers in recent years. This has made Australia the second most punitive developed nation on earth when it comes incarceration rates – behind only the United States – and resulted in massive public expenditure on prisons, while providing no demonstrably community benefit. The seemingly unstoppable increase in prison numbers has finally been abated, and quite dramatically. Not by design, but rather as a result of an unintended consequence of the pandemic.
Bagaric, Mirko, 'Editorial: The questionable legitimacy of the criminal law as the front line of defence against COVID-19: Long-term implications' (2021) 4(45) Criminal Law Journal 199-200 Abstract: The desirability of Australia's approach to the pandemic (one the few countries to pursue an elimination strategy) is contestable and is an issue which requires extensive analysis from the perspective of a number of disciplines, including health, economics and sociology. However, irrespective of the answer to this, there will remain the narrower important jurisprudential issue of whether the manner in which the criminal law was operationalised to control human behaviour was (1) effective; or (2) fair.
Barnes, Jeffrey, 'Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian law' (2022) 3(96) Law Institute Journal: Official Organ of The Law Institute of Victoria 52-52
Bartels, Lorana, 'Sentencing Review 2019–2020' (2020) 5(44) Criminal Law Journal 328-347 Abstract: This year's sentencing review will focus on two issues: COVID-19 and the Bugmy Bar Book (BBB) Project, both discussed in much more detail below.
Baur, Dirk G. and Allan Trench, 'COVID-19 Infection of Australian Companies' (SSRN Scholarly Paper No ID 3609110, 01 January 2020) Abstract: This paper analyzes the impact of the coronavirus pandemic on Australian companies’ share prices. We use daily new infections as a risk factor and proxy for the severity of the pandemic. Based on the loading to this risk factor and abnormal returns during the crisis we categorize firms into (i) severely infected, (ii) infected and (iii) mildly or not infected. We find large differences across firms and sectors highlighting that the virus does not affect all firms and not in the same way contrasting evidence of financial contagion and excess co-movement from past crises. The increased cross-sectional dispersion of returns in the pandemic suggests a sophisticated response of investors resulting in significant diversification benefits.
Bean, Daniel and Nadeem Hekmat, ‘Key Privacy Law Considerations for Employers (Including Vaccination Status)’ (2022) 19(4) Privacy Law Bulletin 58–61 Abstract: Company directors, business owners and government agencies all have significant privacy obligations towards their customers or clients under the ‘Privacy Act 1988’ (Cth) (the Act). The Act also contains obligations in relation to their employees, which if not carefully understood, can result in employment contracts that make it difficult for employers to implement and enforce new workplace policies because they may contravene the relevant obligations under the Act relating to employees. Recently, employees have been concerned about the privacy of information relating to their vaccination status, which in certain instances must be provided to their employers. Questions have been raised about the lawfulness of these scenarios. Can the employers ask for this information? What are the privacy principles relating to employers asking for information that employees may consider to be unnecessary or just too private? This article will respond to these questions and more generally explore how relevant Australian privacy principles (APPs) apply to the employment scenario. This article will also outline how the Australian privacy law framework was applied during the numerous state government directions requiring and storing information relating to vaccination status.
Begg, Morgan, 'Powers of detention in Victorian pandemic legislation' (Report No , 25 January 2022) Abstract: This research highlights how the powers of detention in the Victorian government’s pandemic management legislation could be struck down for being incompatible with the Australian Constitution.
Bell, Felicity, ''Part of the Future': Family Law, Children's Interests and Remote Proceedings in Australia during COVID-19' (2021) 1(40) University of Queensland Law Journal 1-26 Abstract: In March 2020, the family law courts, like other Australian courts, moved to hearing proceedings ‘remotely’, by phone, audio-visual link or software platform. This article examines the particular circumstances of family law cases that likely impact on whether it is appropriate for remote procedures to be used. Giving context to these themes, the article reports on a survey of Australian federal judicial officers about their experiences of conducting family law proceedings remotely.
Bell, Felicity and Michael Legg, ‘Survey of Australia’s Federal Courts: Judicial Views of Remote Proceedings Summary of Findings’ (UNSW Law Research Paper No 23–18, 1 October 2020) Abstract: The aim of this project was to obtain a picture of the experiences and views of judicial officers who had rapidly transitioned to undertaking hearings and trials ‘remotely’ due to the COVID-19 pandemic, by undertaking a survey of judges of the Federal Courts: the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia (FCC).The survey sought to understand the impact on judges and their work, as well as to collect some baseline information on the technology being used and how the courtroom process was modified for remote proceedings. It sought to elicit where judicial officers perceived that problems had arisen, how they were ensuring that procedural fairness was afforded, open justice provided or compromised, and how they saw their role as impartial adjudicator to be changed and/or made more or less difficult, as a result.The three Federal Courts were approached and invited to take part in the survey. Agreement was received from the Chief Justice of the Federal Court, the Hon James Allsop AO, and the Chief Justice of the Family Court and of the Federal Circuit Court, the Hon William Alstergren QC, to circulate the survey invitation to judicial officers. Ethics approval was applied for and obtained from the UNSW Human Research Ethics Committee (HC200454) in June 2020. This included the requirement that participants not be individually identified. The courts then circulated the invitation to all judges.An invitation to complete the survey was circulated at the end of June, and 40 responses were received from ~150 judicial officers, an overall response rate of ~33%. This report sets out in summary the key findings from the survey.
Bell, Felicity et al, 'The Use of Technology (And Other Measures) to Increase Court Capacity: A View from Australia' (SSRN Scholarly Paper No ID 3873637, 19 January 2020) Abstract: This paper is a submission to the House of Commons Justice Committee Inquiry into Court Capacity. The purpose of this submission is to describe how technology has been used, especially during the COVID-19 pandemic, to increase court capacity in Australia. The submission identifies some challenges raised by the use of technology, and the responses to those challenges. The submission also covers some measures, not limited to technology, that have been taken to increase court capacity in response to COVID-19. Part I of this submission sets out the range of uses for which technology may be used in the justice system and develops a taxonomy of these uses. Part II provides an overview of the use of technology to increase court capacity in Australia, both before and during the COVID-19 pandemic. Part III identifies challenges that have arisen in connection with open justice, procedural fairness, access to justice and jury trials. We explain how Australian courts have responded to these challenges.
Bennett, Belinda et al, ‘Australian Law During COVID-19: Meeting the Needs of Older Australians?’ (2022) 41(2) The University of Queensland Law Journal 127–160 Abstract: This article focuses on the interests of older Australians during the COVID-19 pandemic. It analyses the implications of the pandemic for older Australians from a human rights perspective, recognising the need to understand ageing as a process that occurs throughout life. Although we focus on the interests of older Australians, defining what is meant by ‘older’ can be challenging. Furthermore, there are complex social discourses around ageing. While there is no Convention on the Rights of Older Persons, international human rights law is relevant to the rights of older persons. We analyse international human rights law, Australian human rights law, and Australian antidiscrimination law in terms of their relevance to the rights of older persons in the context of the COVID-19 pandemic. With social distancing a key feature of the pandemic, we also consider the impact of social isolation on older persons and the potential for technology to assist in overcoming social isolation. Finally, we analyse current Australian laws relating to participation of individuals in research where capacity has been lost or is diminishing.
Bennett Moses, Lyria et al, 'COVIDSafe App - Submission to the Parliamentary Joint Committee on Human Rights' (SSRN Scholarly Paper No ID 3595109, 07 January 2020) Abstract: This submission to the Parliamentary Joint Committee on Human Rights sets out how the Australian government’s scheme around the COVIDSafe app can better align with the human right to privacy. We recognise the app pursues a legitimate objective and that the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 (Cth) and exposure draft of Privacy Amendment (Public Health Contact Information) Bill 2020 provide important protections. Nevertheless, we make a series of recommendations that would improve the transparency of the scheme and better protect the privacy of those downloading and using the app.
Berg, Laurie and Bassina Farbenblum, 'As if We Weren't Humans: The Abandonment of Temporary Migrants in Australia during COVID-19' (SSRN Scholarly Paper No ID 3709527, 11 January 2020) Abstract: In March 2020, nationwide lockdowns to contain the spread of COVID-19 in Australia caused widespread job loss among temporary visa holders. This had a devastating financial impact on these workers, including international students, backpackers, graduates, sponsored workers and refugees, leaving many unable to meet their basic living needs such as food and rent. However, unlike some other similar Western countries, the Australian government excluded temporary migrants from wage subsidies and almost all other forms of financial support.This report assesses the humanitarian impact of government policies related to COVID-19 on the hundreds of thousands of temporary migrants who remained in Australia. It presents findings from a survey conducted in July 2020 of over 6,100 temporary visa holders on their experiences of financial insecurity, precarious housing and homelessness, humanitarian need, racism and social exclusion, as well as their attitudes on their time in Australia. In doing so, it seeks to establish a platform for temporary migrants to voice their experiences and establish current large-scale first-hand empirical data to inform government decision-making.
Black, Ann, ‘Regulating the Covid-19 Pandemic: Fatwas, Law, and Policy in Australia’ (2022) 7(1) Journal of Law and Policy Transformation 9–27 Abstract: The COVID-19 pandemic tested governments, health systems, and religious communities. Australia prioritised health and community safely over freedom of religion which impacted on religious communal activities, which for Muslims were significant. Unlike Indonesia and other Muslim majority countries, where there is a respected well-established role for ulama, either collectively or individually, giving guidance and rulings (fatwas) to governments and Muslims, in a secular nation, like Australia, it is less established. This paper evaluates the ways by which the three main Islamic organisations in Australia aided their communities during the pandemic and to extent to which they supported their government in implementation of a regulatory raft of isolation and social distancing policies as well as the vaccine mandate. This is done by analysis of fatwas issued during the pandemic. It concludes that by working with, not in opposition to the government regulations, they provided optimal outcomes for the Muslim community and Australia.
Blackham, Alysia, ‘A Life Course Approach to Addressing Exponential Inequalities: Age, Gender, and Covid-19’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 233 Abstract: This chapter argues that age is an exponential amplifier of inequality. It puts forward a life course perspective as a nuanced lens for enriching our understanding of discrimination and its impacts over time. A life course approach offers a targeted focus for addressing exponential inequalities, drawing our attention to discrimination at critical transition points. Building on this life course perspective, experiences of discrimination over time can be seen as non-linear and multi-directional, but still interlinked and biographic, punctuating and shaping life stories in unpredictable ways. These ideas are illustrated through a case study of gendered ageism at work, drawing on empirical evidence to map how gender inequality is amplified with age and time, and further exacerbated by the impacts of the Covid-19 pandemic. Viewed with this life course lens, this chapter argues that discrimination law appears fundamentally ill-adapted for responding to exponential inequalities. The chapter therefore considers the extent to which ‘next generation’ positive duties—like the Gender Equality Act 2020 (Vic)—might address these concerns.
Blake, Meredith et al, ‘Student and Staff Experiences of Online Learning: Lessons from COVID-19 in an Australian Law School’ (2022) 32(1) Legal Education Review 129–159 Abstract: This article explores the experiences of UWA Law School students and staff of the fully online learning and teaching environment introduced in response to the COVID-19 pandemic. It commences with a literature review which identifies several key themes in relation to the emergency remote teaching (ERT) response effected by universities across the globe. It then sets out the results of surveys of Juris Doctor students and teaching staff on their experiences of pre-COVID education in semester 2 of 2019, during the period of ERT in semester one 2020, and in semester 2 of 2020 when classes and assessment had resumed largely face-to-face. The overarching aim of this study was to gather information and data to help guide and inform the development of future learning and teaching strategy at UWA Law School. The survey responses indicate a clear correlation between rates of student and staff satisfaction and the nature of the learning and teaching environment. The authors draw on the theory of connectivism in their analysis of the survey, concluding that the key message is that there is an ongoing need for flexibility and adaptability in the learning and teaching of law, particularly with assessments.
Boersig, J, J Campbell and S Carmichael, 'Accused stripped of the power to elect to have trials before a jury of their peers' (2021) 1(33) Current Issues in Criminal Justice 69-75 Abstract: On 2 April 2020, the COVID-19 Emergency Response Act 2020 (ACT) made amendments to address the ongoing – and, at that stage, escalating – COVID-19 outbreak. Amongst its provisions, the Act amended the Supreme Court Act 1933 (ACT) to allow judge-alone trials on indictable offences, at the election of a judge. This article assesses the rationale for this amendment, finding that the concerns expressed by the Australian Capital Territory (ACT) legislature that delay in justice would have negative ramifications are merited. The evidence demonstrates that delay in trial proceedings can negatively affect witness memory, prolong victim and witness trauma, and harm defendants through indeterminate incarceration. However, the authors express reticence about the constitutional legality of waiving such a fundamental right through territory legislation. There are multiple constitutional grounds on which the legislation can be challenged, with this article exploring the possible implications of the Kable Doctrine. The authors’ comparison to New South Wales (NSW) and Victoria shows that there were more appropriate measures that balanced the swift execution of justice and interests of an accused. The right to trial by a jury of peers is a bedrock of Australian law and the decision to abrogate that right represents a dangerous precedent.
Boon-Kuo, Louise et al, 'Policing biosecurity: police enforcement of special measures in New South Wales and Victoria during the COVID-19 pandemic' (2021) 1(33) Current Issues in Criminal Justice 76-88 Abstract: In this article we consider the enforcement of COVID-19 measures as an instance of security policing, characterised by a pre-emption paradigm. Whilst COVID-19 measures are directed towards the goal of ‘biosecurity’ to stop the spread of the disease, in practice, COVID policing appears to rely on long-standing criminalisation strategies at odds with public health. Drawing on a range of primary and secondary data sources, we provide a critical account of the policing practices used and the groups to which the special measures have been directed in the most severely affected states of Victoria and New South Wales. We consider the implications of the securitisation of public health through the use of policing. Although we identify the potential for expansion—whereby population groups that do not usually attract police attention are drawn into contact with police—our case studies reveal that COVID policing as practiced in those contexts intensifies existing patterns of public order policing directed towards the ‘usual suspects’ and reinforces a criminalisation rather than a public health paradigm.
Bosua, Rachelle, Damian Clifford and Megan Richardson, ‘Contact-Tracing Technologies and the Problem of Trust: Framing a Right of Social Dialogue for an Impact Assessment Process in Pandemic Times’ (2023) 5(2) Law, Technology and Humans 193–204 Abstract: While technologies offer potentially powerful tools to help address complex social challenges, experience shows that they may fail to meet expectations and may also raise challenges of their own, including for privacy and other data rights. To what extent can these difficulties be ascribed to a lack of public trust undermining the technologies’ effectiveness and disputing their legitimacy? The Australian and Dutch pandemic contact-tracing apps considered in this article suggest part of an answer to this question. As our case studies show, the greater efforts made by the Dutch Government to address a range of rights and provide for wide consultation in the CoronaMelder app’s various impact assessments paid off in terms of a better-designed app that was more broadly conversant with human rights than its Australian COVIDSafe counterpart, and was also more trusted—even if these benefits were still marginal compared to manual contact-tracking, especially in already marginalised communities. We argue that the Dutch experience should now be taken further to frame a right of social dialogue allowing data rights subjects to participate fully in the impact assessment process. We hope (and expect) this would result in better decision-making and improved public trust in ‘truly trustworthy’ technologies developed and deployed in response to a pandemic. However, ultimately, our more basic argument is that rights, premised on dignity and liberty, are of value and should be respected, including—indeed especially—in pandemic times.
Boughey, Janina, 'Executive power in emergencies: Where is the accountability?' (2020) 3(45) Alternative Law Journal 168-174 Abstract: Australia’s system of law and government contains a range of mechanisms through which the executive branch is held to account for its actions. However, in emergencies, these accountability mechanisms are often significantly eroded in a range of ways. This article examines how the forms and types of powers that Australian governments have relied on to respond to the COVID-19 pandemic have avoided many of the political, legal and administrative accountability mechanisms that ordinarily apply to government decision-making. It looks at whether these accountability limits are justified and asks whether we ought to be concerned.
Brand, Seamus, ‘Is This the Winter of Our Discontent?: The Importance of Revisiting WHS While “Living with” COVID-19’ (2022) 44(7) Bulletin (Law Society of South Australia) 10–11 Abstract: Throughout the COVID-19 pandemic, employers have largely relied on Government health advice and Government health orders (GHO) to inform (or compel) their response to COVID-19. In some cases, employers were legally required to comply with a GHO and could rely upon it to justify the making of hard, but necessary, decisions. Many GHO have since been withdrawn and the emergencies giving rise to them declared ‘over’ (at least in a legal sense). Meanwhile, Australia faces its first winter in the era of ‘living with COVID’. This has left many employers without the GHO safety net. It also leaves other employers (never subject to a GHO) with the continued uncertainty as to precisely how the manage the workplace risks of COVID-19, particularly during this ‘winter wave’.
Bröhmer, Jürgen, ‘Legally Strong Executive Branches, but It’s More About Democracy and Politics: The Case of Australia’ in Eisma-Osorio, Rose-Liza et al (ed), Parliaments in the Covid-19 Pandemic: Between Crisis Management, Civil Rights and Proportionality: Observations from Asia and the Pacific (Konrad-Adenauer-Stiftung, 2021) 17–36 [OPEN ACCESS BOOK] Abstract: The notorious political theorist Carl Schmitt is quoted as stipulating that "sovereign is (s)he who has the power to declare a state of emergency (Hoffmann 2005, p. 171). Whereas the quote tends to capture the attention of the reader and to provoke some thought, it already contains an important assumption: that the declaration of a state of emergency removes all constraints and elevates the perpetrator to a state above responsibility and accountability, as the obsolete understanding of sovereignty might have implied and as Louis XIV tried to express when he claimed: ‘L’État, c’est moi’ (Delahunty and Dignen 2010). Looking at the legal framework of combatting the COVID-19 in Australia, one could be forgiven for thinking about Schmitt or Louis in this context because legally, the battle against the virus is very much one conducted on executive emergency powers. However, as will also become apparent, these powers, though seemingly sweeping and only weakly controlled legally, are nonetheless not of the sort that would remove the executive from all accountability and responsibility.
Brown, Rebecca, ‘Quarantine Island: Australia’s Health Policy and Its Construction of International Law’ (2023) 41(1) Australian Year Book of International Law Online 299–343 Abstract: This article explores the development of Australia’s policy approach towards communicable disease, both domestically and internationally. Drawing on archival records, it considers the methods used by federal and state governments to manage disease in Australia over time, analysing the key beliefs and priorities held by successive governments, and how these reflect Australia’s particular character and history. Against these domestic concerns, the article interrogates Australia’s approach to global health governance, with a particular focus on the state’s contributions to the drafting of major international health instruments on communicable disease. This analysis reveals the idiosyncratic nature of Australia’s health policy and the resulting impact on Australia’s contributions to the international legal system. It shows that Australia’s approach has consistently relied on the creation and preservation of an impermeable national border. This policy reflects an institutionalised belief, held continually since the early colonial period, that disease must be fully eradicated, and that this is best effected through taking advantage of the country’s geographic isolation. Domestically, this conception of disease control results in the adoption of strict quarantine requirements, immigration restrictions and broad discretionary powers regarding the entry of people and goods, while in the international context, Australia supports norms that facilitate its reification of its border. Accordingly, the article contextualises Australia’s health policy across four time periods of global health governance: the first sanitary conferences of the 19th and early-20th centuries, the post-World War II creation of the World Health Organization, the International Health Regulations 2005 revision project, and those Regulations’ operation before and during the COVID-19 pandemic. This article’s findings reveal the intrinsic connection between the unique domestic concerns of states and their approaches to international negotiations, which stymies the ability to generate effective cooperation globally. It clarifies this relationship and invites reflection on the resulting obstacles to international law’s progressive development.
Browne, Darryl, 'Elder law and succession' (2020) (66) LSJ: Law Society of NSW Journal 99-100 Abstract: Home-made administration of home-made will - allegation of testamentary fraud - bank acts to prevent elder abuse - Australian Financial Complaints Authority is constitutionally valid - COVID-19 affected decision - leave to retract renunciation - apportionment of dividend.
Buchan, Jenny and Rob Nicholls, Rob, 'The challenges of navigating the COVID-19 pandemic for Australia's franchise sector' (2020) 2(48) Australian Business Law Review 126-137 Abstract: A pandemic forces franchisors, franchisees and other stakeholders to look with fresh eyes at contracts that usually remain in the bottom drawer. Government light-touch legislation is challenged, and the franchise sector must deal with forcefully drawn contracts and competition from more agile non-franchised businesses. All concerned must come to grips with how contract law addresses a pandemic, if at all, and how courts might interpret established contractual and statutory obligations and legislation enacted to respond to COVID-19. This article reviews franchising through the lenses of force majeure and frustration, and considers how the courts might interpret responses to COVID-19 in the light of the good faith obligation under the Franchising Code of Conduct. It also canvases federal and State regulatory responses in the context of franchising. The article concludes that franchisors will need to depart from a one-size-fits-all response to a more bespoke approach on this occasion.
Burdon, Mark and Brydon Wang, 'Implementing COVID safe: The role of trustworthiness and information privacy law' 1(3) Law, Technology and Humans 35-50 Abstract: Governments worldwide view contact tracing as a key tool to mitigate COVID-19 community transmission. Contact tracing investigations are time consuming and labour intensive. Mobile phone location tracking has been a new data-driven option to potentially obviate investigative inefficiencies. However, using mobile phone apps for contact tracing purposes gives rise to complex privacy issues. Governmental presentation and implementation of contact tracing apps, therefore, requires careful and sensitive delivery of a coherent policy position to establish citizen trust, which is an essential component of uptake and use. This article critically examines the Australian Government's initial implementation of the COVIDSafe app. We outline a series of implementation misalignments that juxtapose an underpinning regulatory rationality predicated on the implementation of information privacy law protections with rhetorical campaigns to reinforce different justifications for the app's use. We then examine these implementation misalignments from Mayer and colleagues' lens of trustworthiness (1995) and its three core domains: ability, integrity and benevolence. The three domains are used to examine how the Australian Government's implementation strategy provided a confused understanding of processes that enhance trustworthiness in the adoption of new technologies. In conclusion, we provide a better understanding about securing trustworthiness in new technologies through the establishment of a value consensus that requires alignment of regulatory rationales and rhetorical campaigning.
Burdon, Peter D, ‘“Never Let a Crisis Go to Waste”: The Impact of COVID-19 on Legal Education’ (2022) 8 Canadian Journal of Comparative and Contemporary Law 1–37 Abstract: The COVID-19 pandemic represents the most significant rupture to universities since the advent of neoliberalism. In Australia, the economic shock was brought about primarily by a drop in international student fees, border closures, plus efforts from the Federal government to keep public universities from accessing financial support. In this article, I discuss the impacts of COVID-19 on legal education. What concerns me is the rhetoric under which massive structural changes have been justified in response to the pandemic. Most commonly, university leaders have sought to externalise the problem and adopt the language of unforeseeability, emergency and necessity. Changes to learning and teaching have also been described as an ‘opportunity’ to re-examine outdated pedagogical practices and forms of assessment. While not denying the unprecedented nature of the pandemic, this article argues that current changes in higher education are not a break from the past but a continuation of the neoliberal project.
Burdon, Peter and Paul Babie, 'COVID-19 and the Adelaide Law School, Australia' (2020) 2(10) Journal of Security, Intelligence, and Resilience Education [unpaginated] Abstract: In this short article, we examine how the University of Adelaide’s Law School responded in its approach to teaching during the challenges of COVID-19, the opportunities revealed, and the immediate and longer-term implications of such responses.
Byrne, Elyse, ‘Are We Right to Go? Family Law in a Post Pandemic World: We Are Still Seeing the Effects of the Covid-19 Pandemic on Family Law and Family Law Cases Before the Federal Circuit and Family Court of Australia’ (2023) 97(3) Law Institute Journal 18-21
Capelin, Tim et al, 'Practical guidance for companies during the COVID-19 pandemic' (2020) 3(42) Bulletin (Law Society of South Australia) 28 Abstract: The COVID-19 pandemic has created unprecedented challenges for businesses, who are dealing with how remain operational while ensuring the safety of their workers, while also complying with industrial law obligations and Government directives in the wake of this public health crisis. This article provides sone guidance on the most commonly asked questions with regards to employment law issues.
Capuano, Angelo, 'Post-Pandemic Workplace Design and the Plight of Employees with Invisible Disabilities: Is Australian Labour Law and Anti-Discrimination Legislation Equipped to Address New and Emerging Workplace Inequalities?' (2022) 2(45) University of New South Wales Law Journal (forthcoming) Abstract: In 2020 the COVID-19 pandemic has re-shaped the way we work. To help contain the virus employees made a mass migration from working in offices to working remotely from home, but this mass shift to working from home is expected to have a lasting impact on workplace design even after the virus is contained. Modern and post-pandemic workplaces are expected to be increasingly “hybrid” and use shared workspaces to permit worker fluidity between the office and the home. This article argues that shared and fluid working arrangements significantly disadvantage and disproportionately affect employees with “invisible” disability in various ways, yet the outdated design of Australian labour law and anti-discrimination law is ill-equipped to deal with these new and emerging inequalities in the workplace. The assessment of the law in this article culminates with proposed drafting improvements to the Fair Work Act 2009 (Cth) and the definition of indirect discrimination in anti-discrimination legislation, but it exposes the defences to discrimination as the most problematic features of the legal framework. Whilst defences to discrimination intend to strike a balance between the interests of employers and employees, the analysis in this article shows that modern and post-pandemic workplace design significantly disrupts that balance to skew the legal tests to favour employers. Modernising the defences to discrimination to achieve greater equilibrium is a very complicated question and will be the focus of planned future empirical research. This article does, however, propose that the legislative framework can be updated by introducing proactive measures designed to enhance “person-environment fit” in workplaces. This may not only mitigate the disadvantaging effect of hybrid workplace design on employees with “invisible” disability, but also reduce reliance on the complaints-based system and help circumvent problems posed by the defences to discrimination.
Carabetta, Giuseppe, ‘Vaccination Mandates and the Employee’s Duty to Obey Lawful and Reasonable Directions’ (2022) 50(3) Australian Business Law Review 226–233 [pre-published version available on SSRN] Abstract: On 3 December 2021 the Full Bench of the Fair Work Commission handed down its decision in ‘Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd’. The decision concerned a COVID-19 vaccine mandate imposed by Mt Arthur Coal Pty Ltd. The mandate gave employees a month to obtain a first COVID-19 vaccine, in which time the Construction, Forestry, Maritime Mining and Energy Union brought a challenge to the direction. They were successful, with the Commission ultimately striking down the direction, but only on very narrow grounds relating to a failure to consult. The decision – the first regarding an employer COVID-19 mandate not supported by a public health order – offers insights from a five-member bench about the views of the Commission on vaccine mandates issued by employers, helped by the narrow set of issues in dispute. Neither side contested the science on COVID-19. Nor was there any suggestion that the direction was lawful (or unlawful) on the basis of government health orders, contract or the relevant enterprise agreement. Instead, the only question was whether or not the employer’s vaccine mandate was a ‘lawful and reasonable’ direction. Ultimately that question turned on whether in introducing the mandate the employer had met its consultation obligations under workplace health and safety laws. However, beyond addressing important questions about the content of those obligations, the decision reaffirms a number of general propositions relating to the application and scope of the implied duty. It ultimately also provides useful guidance for employers and employees regarding the legalities of mandatory workplace vaccination policies specifically.
Carrington, Kerry et al, 'Impact of COVID on Domestic and Family Violence Workforce and Clients: Submission to the Australian Parliament Standing Committee on Social Policy and Legal Affairs inquiry into and report on family, domestic and sexual violence' ( No , 30 January 2020) Abstract: A research team from the Queensland University of Technology (QUT) Centre for Justice has prepared this interim select report drawn from our nation-wide survey on the impact of COVID-19 on the domestic and family violence (DFV) workforce and clients for submission to the Standing Committee on Social Policy and Legal Affairs inquiry into and report on family, domestic and sexual violenceThe interim (July 24, 2020) findings of a nation-wide survey on the impact of COVID-19 on the domestic and family violence (DFV) sector and their clients based on 288 responses confirm concerns raised early in the COVID-19 pandemic. Australian healthcare and women’s safety professionals predicted an ‘impending increase’ in cases (Hegarty & Tarzia, 2020; Forster, 2020). Advocates have also reported increased complexities and challenges in assisting victims/survivors amidst COVID-19 (Forster, 2020). A huge proportion, 88% of respondents to our survey so far, have reported an increase in the complexity of their client needs. They also reported increases in controlling behaviours, such as isolation, increased sense of vulnerability, forced to co-habitat during lock-down, and inability to seek outside help, increased fear of monitoring by abuser, and increased use of technology to intimidate. Perhaps one of the most concerning of our findings is the number of DFV workers reporting new clients seeking their help for the first time during the COVID-19 crisis. This is evidence that the pandemic conditions are affecting the rate of domestic violence consistent with international research. We asked the DFV workforce what extra resources they needed to better cope with a crisis like the COVID-19 pandemic in the future. They need more of everything, but front-line workers emphasised the need for: • better technology and technology support for workers, technology checks for clients, more safe mobile phones for clients and better internet connectivity; • more government funding for crisis supplies and emergency and long-term accommodation; • transport for home delivery of services; • the continuation of tele-health provisions; • more resources for male perpetrator programs (especially for Indigenous men). They also need systems to be flexible, especially courts and magistrates and they called for improved policing and better communication and translation services and supports for Culturally and Linguistically Diverse (CALD) communities.
Carson, Andrea, 'The Fake News Crisis: Lessons for Australia from the Asia-Pacific' (Melbourne School of Government, Governing During Crises Policy Brief No 12, ) Abstract: This Policy Brief makes the following key points: (a) Before the COVID-19 pandemic struck, the spread of misinformation and disinformation online was a major global problem that can harm social cohesion, public health and safety, and political stability. The pandemic has highlighted how fake news about coronavirus and its treatments, even when spread innocently with no intention of causing harm, can cause real-world harm, and even death. (b) A lack of consensus among policymakers, media practitioners and academics on working definitions of fake news, misinformation and disinformation contribute to the difficulties in developing clear policies and measures to tackle this global problem. (c) To try to mitigate confusion for readers of this Policy Brief, a simple and broad definition of ‘online misinformation’ is adopted: the spread of inaccurate or misleading content online. ‘Disinformation’, by contrast, is considered as: the spread of inaccurate or misleading content with conscious intent to mislead, deceive or otherwise cause harm. In this way, we consider online disinformation to be a substantial subset of the broad, overarching problem of misinformation. This is a similar position to that of the Australian Communications and Media Authority (ACMA). Fake news is an umbrella term that covers both misinformation and disinformation. (d) The pandemic has emboldened many non-liberal states and fledgling democracies to crackdown on fake news through legislative means with threats of jail terms and heavy fines for those found in breach of the new laws. (e) Indonesia and Singapore are among a group of early adopter states to play the role of both arbiter of what is online misinformation and the enforcer of laws against alleged misconduct. Critics argue these states are using their new laws to silence a wide spectrum of critics, with major implications for freedom of speech and expression, media freedom, political pluralism and democratic representation. (f) So far, the Australian government has taken a voluntary regulatory pathway to tackle fake news. DIGI’s (Digital Industry Group Inc.) new voluntary Australian Code of Practice on Disinformation and Misinformation was launched in February 2021. It commits digital technology signatories to a range of measures to reduce the risk of harmful online misinformation and disinformation.
'Case updates: COVID-19 case updates' (2020) 4(32) Judicial Officers Bulletin 35-36 Abstract: Supreme Court : 'Bail Act' 2013, sections 16A, 16B, 17, 18, 19 - release application - evidence of effect of COVID-19 pandemic on criminal justice and prison systems - pandemic relevant to bail considerations - 'Rakielbakhour v DPP' [2020] NSWSC 323. Procedure -Trial procedure COVID-19 pandemic adjournment application granted trial in virtual courtroom impractical given technological difficulties accused's right to a fair trial compromised - 'R v Macdonald; E & M Obeid (No 11)' [2020] NSWSC 382. Federal Court - Civil procedure - COVID-19 pandemic civil trial adjournment application refused virtual trial would have some adverse impact but not unjust to proceed to extent possible under public health regulations - 'Capic v Ford Motor Company of Australia Ltd' [2020] FCA 486
Catalano, Michael and Aaron Chan, ‘Common Law Systems and COVID-19 Policy Response: Protective Public Health Policy in the United States, Canada, New Zealand, and Australia’ (Conference Paper, 2022 APSA Annual Meeting: Rethink, Restructure, and Reconnect) Abstract: The Covid-19 pandemic affected the United States, Canada, New Zealand, and Australia in 2020 all pretty similarly. Knowing that that these four countries produce similar types of policies, and all follow the common law judicial system, it was necessary to analyze how the highest court of each land influenced political actors when responding to the first Covid-19 outbreak. More specifically, we determine the party affiliation of each Justice/judge, calculated the composition of the Courts and proceeded with determining how each of the four Courts ruled on protective public health policy responses. While this is new data during the beginning of the pandemic, we see similarities between 2020 Court opinions and come to conclude that more research on years following 2020 is significant to finding stronger correlations.
Catrina, Radu, 'Family law: A precedent for unprecedented times' (2020) 12(94) Law Institute Journal 40-43 Abstract: How the family law courts have treated the continued operation of, and frequent non-compliance with, parenting orders in the wake of COVID-19.
Chan, Laina, ‘“Certain Underwriters at Lloyd’s of London v Dural 24/7 Pty Ltd”: A Triumph of Common Sense’ (2022) 37(7/8) Australian Insurance Law Bulletin 137–138 Abstract: In ‘Certain Underwriters at Lloyd’s of London v Dural 24/7 Pty Ltd’ the underlying issue was whether the policy underwritten by Certain Underwriters at Lloyd’s of London covered business interruption caused by the COVID-19 pandemic. The difficulty arose because the legislation referred to in the Policy defined diseases by reference to the repealed Australian ‘Quarantine Act 1908’ (Cth). The Insurers therefore sought a declaration to the effect that ‘or other diseases declared to be quarantinable diseases under the Australian 'Quarantine Act 1908’ meant ‘or other listed human diseases under the “Biosecurity Act 2015 (Cth)”’. The declaration was made.
Chazal, Nerida and Kyla Raby, 'The Impact of Covid-19 on the Identification of Victims of Modern Slavery and their Access to Support Services in Australia' (2021) 2(6) Journal of Modern Slavery 30-50 Abstract: This article examines how COVID-19 impacted the identification and access to support of modern slavery victims in Australia during 2020. It is the first comprehensive analysis of the pandemic’s impact on modern slavery victimisation in Australia. The key finding of the research is that COVID-19 exacerbated existing barriers to identifying victims of modern slavery in Australia and referring them to government funded support, related to the linkage of the provision of support with criminal justice processes. The reliance on policing capacity to identify and refer victims meant that when police and other government resources were diverted into the large-scale COVID-19 emergency response, there was less capacity for police to undertake this vital function, resulting in the under-identification and referral to support of victims of modern slavery.
Chen, Bruce, 'The COVID-19 border closure to India: Would an Australian Human Rights Act have made a difference?' (2021) 4(46) Alternative Law Journal 320-325 Abstract: In late April 2021, the Commonwealth government determined to prohibit overseas travellers who had been in India from returning to Australia, subjecting them to heavy penalties for breach. This measure was controversial and unprecedented in Australia's response to COVID-19, drawing sharp criticism for breaching human rights. This article analyses the human rights issues arising under the Health Minister's determination, and the ensuing Federal Court case of Newman v Minister for Health and Aged Care. Against the backdrop of a renewed push for a national Human Rights Act, it finds that a national Human Rights Act could have made a difference.
Chen, Bruce, ‘COVID-19 Stay at Home Restrictions and the Interpretation of Emergency Powers: A Comparative Analysis’ (2023) 44(1) Statute Law Review Article hmac012 Abstract: The COVID-19 pandemic has created immense challenges for governments in their management of the public health response and tested the limits of public law. This article undertakes a comparative analysis of the common law jurisdictions of the United Kingdom, New Zealand, and Australia. It discusses the imposition of ‘stay at home’ restrictions pursuant to public health legislative frameworks, focusing on judicial scrutiny in the context of statutory interpretation. It examines the appellate cases of R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605; [2021] 1 WLR 2326, Borrowdale v Director-General of Health [2021] NZCA 520; [2022] 2 NZLR 356, and Kassam v Hazzard [2021] NSWCA 299; (2021) 106 NSWLR 520.Using these case studies, this article seeks to reveal key themes and implications for public law. What approaches have the courts adopted to construe public health emergency powers? How have the courts treated ‘rights-based’ principles of statutory interpretation? Have the courts approached interpretation in the usual manner or displayed an unorthodox level of deference to other branches of government? The article concludes on what implications the judicial approaches have for the interpretation of emergency powers in the future.
Chen, Bruce, 'The Victorian COVID-19 Response: Reflections on Loielo V Giles' (2021) Public Law Review (forthcoming) Abstract: This comment analyses the Victorian Supreme Court's decision in Loielo v Giles [2020] VSC 722, in relation to judicial review of the decision to impose a curfew measure on Greater Melbourne in response to a 'second wave' of COVID-19 infections.
Childs, Andrew, ‘The Distribution of Fake Australian Vaccine Digital Certificates on an Alt-Tech Platform’ (2023) 26(2) Trends in Organized Crime 136–155 Abstract: This paper provides the first exploration of the online distribution of fake Australian COVID-19 vaccine certificates. Drawing on a collection of 2589 posts between five distributors and their community members on the alt-tech platform Gab, this study gathers key insights into the mechanics of illicit vaccine certificate distribution. The qualitative findings in this research demonstrate the various motivations and binding ideologies that underpinned this illicit distribution (e.g. anti-vaccine and anti-surveillance motivations); the unique cybercultural aspects of this online illicit network (e.g. ‘crowdsourcing’ the creation of fake vaccine passes); and how the online community was used to share information on the risks of engaging in this illicit service, setting the appropriate contexts of using fake vaccine passes, and the evasion of guardians in offline settings. Implications for future research in cybercrime, illicit networks, and organised crime in digital spaces are discussed.
Christensen, Sharon, 'Corporate signing goes digital' (2020) 4(35) Australian Property Law Bulletin 72-74 Abstract: As part of the Federal government's response to COVID-19, temporary changes have been made to the 'Corporations Act' 2001 to facilitate electronic signing of contracts by corporations. The 'Corporations (Coronavirus Economic Response) Determination (No. 1)' 2020 ("the Determination") is effective from 6 May 2020 until 6 November 2020 and extends the operation of section 127 of the 'Corporations Act' 2001 to where two directors or a director and company secretary sign: a copy or counterpart of a document in physical form, or use an electronic signing method to execute a copy or counterpart in electronic form provided the electronic signing method reliably identifies the person and indicates the person's intention about the contents of the document. The purpose of the modification is to overcome the requirement for both directors/secretary to sign the same static form of the document in order to comply with section 127(1) and to allow electronic signing.
Churches, Genna and Monika Zalnieriute, 'The Instrumentality of Metadata Access Regime For Suppressing Political Protests In Australia' (UNSW Law Research Paper No 20-50, 20 2020) Abstract: Australians, just like many other people around the world, are taking to the streets to oppose racial and environmental injustice, despite the COVID-19 risk of mass gatherings. Australian politicians have expressed strong disdain, and even threats, at protesters. Government’s desire to silence critics is not new, however today’s tracking technologies and Australia’s lax federal metadata laws give the government unprecedented tools to take action against protesters. Accessing metadata requires no warrant or reporting and enables government to draw links and amass schemes of connections between people who were organising, attending, intending or speaking at the protests. These tools, coupled with new COVID-19 powers to surveil citizens, have seriously impaired the right to protest anonymously in Australia. In this post we are not disputing the need for restrictions on mass gatherings or social distancing — to the opposite, we think they are crucial to stop the spread of virus. Instead, we are exposing the instrumentality of metadata, including location data, for the government to clamp down on peaceful protests. We propose one small step towards securing the right t protest anonymously during a time when Australians need it most: reforming the laws so that our metadata can only be accessed with a judicial warrant and further protected with detailed public reporting requirements.
Clarke, Philip H, 'Prepayments, the ACL and the ASIC Act' (2020) 2(48) Australian Business Law Review 180-188 Abstract: COVID-19 has resulted in the cancellation or postponement of sporting and entertainment events and fixtures, the virtual cessation of domestic and international air travel, and the closure of schools and most entertainment, exercise and sporting venues. What are the rights under the Australian Consumer Law (ACL) of those who have prepaid to attend events, or receive services, such as these? A significant part of the answer can be found in s 36 of the ACL. This article outlines the operation of that provision and applies it to COVID-19 scenarios. It also highlights the value of the provision to online shoppers, who frequently make prepayments for the goods or services they seek, as a precedent for reforms to address the "fees for no service" scandal highlighted by the 2019 Banking Royal Commission.
Close, Eliana et al, 'Legal Challenges to ICU Triage Decisions in the COVID-19 Pandemic: How Effectively Does the Law Regulate Bedside Rationing Decisions in Australia? – UNSW Law Journal' (2021) 1(44) UNSW Law Journal 9-59 Abstract: The COVID-19 pandemic has raised the difficult question of how to ration scarce intensive care resources when a health system is overwhelmed. Despite substantial ethical scholarship addressing these rationing decisions, little is known about the legal position in Australia. This article considers various legal challenges in response to a clinical scenario denying intensive care admission and a ventilator to a critically ill patient with COVID-19. The article considers key challenges in negligence, criminal law, administrative law, human rights law, and under the parens patriae jurisdiction and guardianship legislation, and how they would apply to this scenario. The article concludes that while there are many obstacles to a successful legal challenge, the law can provide important scrutiny and guidance in the design of decision-making processes and triage policies. To adequately protect individual interests, the article supports calls in the ethical literature to make these policies transparent for public scrutiny.
Close, Eliana et al, 'Transparent triage policies during the COVID-19 pandemic: a critical part of medico-legal risk management for clinicians' (2021) 2(215) Medical Journal of Australia 71-74.e1 Abstract: Clinicians, ethicists and lawyers have long debated the parameters of triage in response to the inevitable disasters that sporadically overwhelm the health care system. Almost universally, they have advocated for open, transparent and consultative triage protocols, guidelines and legislation to combat biases and to support clinicians making unavoidable decisions in the interests of the community as a whole. The coronavirus disease 2019 (COVID-19) pandemic has highlighted the importance of transparent triage. While there is considerable debate about ethical aspects of triage protocols, including concerns that the traditional focus on utilitarianism is discriminatory, largely missing from this discussion in Australia is that triage protocols are also important from a legal perspective — as a mechanism to promote lawful decision-making processes and as a justification or defence to support clinicians’ decisions if a matter is litigated. The purpose of this article is twofold. First, after providing an overview of current COVID-19 triage policies in Australia, we assess their legal status. Second, we argue that beyond ethics, transparent policies are needed so their compliance with law can be tested, and to enable practitioners to better understand their obligations before making sometimes “impossible” decisions.
Cockburn, Tina, Sam Boyle, Sam and Md Saiful Karim, 'Teaching and Researching in Health Law in the time of the Covid-19 Pandemic : Lessons from Australia' (Conference Paper, Teaching and Researching in Health Law in the time of the Covid-19 Pandemic: : Lessons from Australia for Sri LankaTeaching and Researching in Health Law in the time of the Covid-19 Pandemic:, 31 January 2022) Abstract: This seminar was convened by the Open University of Sri Lanka to consider the topic teaching and researching in health law in the time of Covid-19. Academics from the Queensland University of Technology were invited to discuss the importance of health law, the scope and design of health law courses and prospects of teaching and researching in health law from the Australian perspective, followed by a consideration of the lessons for the development of innovative curriculum in SriLankan legal education and research in the area of health law.
Costello, Sean, 'A novel year for human rights in Queensland' (2021) 3(46) Alternative Law Journal 228-231 Abstract: In a year of challenges from the novel coronavirus, the new Queensland Human Rights Act was applied in unexpected ways. Its new complaints process was particularly tested by hotel quarantine restrictions. Nonetheless, geographic and demographic differences between Queensland and other human rights jurisdictions are also emerging as especially relevant to how human rights protection will be applied in the state, particularly a new Australian right to health and the cultural rights of Aboriginal and Torres Strait Islander peoples.
'COVID Funding boost for legal assistance services' (2020) 6(42) Bulletin (Law Society of South Australia) 13Croucher, Rosalind, 'Lockdowns, Curfews and Human Rights – Unscrambling Hyperbole' (2021) 3(28) Australian Journal of Administrative Law 137-148 Abstract: Responses to the COVID-19 pandemic have required very quick action. But those responses have also involved significant limitations on people's rights and freedoms and implemented through executive power often with limited parliamentary involvement. One such exercise was a curfew in Victoria, which was challenged in Loielo v Giles. This article works through the decision in Loielo as a matter of legal analysis and concludes with a consideration of the democratic challenges of emergency decision-making. The decision is an instructive illustration of how human rights principles can inform decision-making and provide a framework of accountability.
‘COVID-19 and Freedom of Movement’ (2023) 97(12) Australian Law Journal 868-869 Abstract: The COVID-19 pandemic resulted in many restrictive laws being imposed, both at the Commonwealth and the State level, with resultant legal challenges. Most challenges, however, were unsuccessful and were disposed of at the Supreme Court or Federal Court level. Two notable cases reached the High Court.
d'Aeth, Chris, 'Virtual courts in the time of coronavirus' () 8(32) Judicial Officers Bulletin 83-84 Abstract: The necessary changes to traditional courtroom practices that the 2020 public health crisis required have afforded the court the opportunity to review and evaluate alternatives. The author predicts that many of these changes will be retained once the pandemic fades.
Dahlen, Hannah G, Bashi Kumar-Hazard and Mary Chiarella, 'How COVID-19 Highlights an Ongoing Pandemic of Neglect and Oppression When it Comes to Women's Reproductive Rights' (2020) 4(27) Journal of law and Medicine 812 Abstract: The coronavirus disease-19 (COVID-19) pandemic has exposed an underlying pandemic of neglect affecting women’s reproductive rights, particularly in the provision of abortion services and maternity care. The systemic neglect in the Australian context has resulted in a rise in demand for the services provided by privately practising midwives (PPMs) that is not matched by systemic support for, nor recognition of, women choosing to birth at home. As a result, PPMs are unable to meet the rise in demand, which in itself reflects decades of limited State support for the choice to birth at home and opposition by incumbent stakeholders in the provision of maternity care to healthy women with low-risk pregnancies. We discuss the historical backdrop to these currently erupting issues, along with the real reasons for the opposition to PPMs in Australia. Finally, we offer solutions to this ongoing issue.
Daly, Tom, 'Elections During Crisis: Global Lessons from the Asia-Pacific' (Melbourne School of Government Policy Brief No 10, 17 January 2021) Abstract: This Policy Brief makes the following key points: (a) During 2020 states the world over learned just how challenging it can be to organise full, free, and fair elections in the middle of a pandemic. For many states facing important elections during 2021 (e.g. Japan, the UK, Israel) these challenges remain a pressing concern. (b) The pandemic has spurred electoral innovations and reform worldwide. While reforms in some states garner global attention – such as attempts at wholesale reforms in the US (e.g. early voting) – greater attention should be paid to the Asia-Pacific as a region. (c) A range of positive lessons can be drawn from the conduct of elections in South Korea, New Zealand, Mongolia, and Australia concerning safety measures, effective communication, use of digital technology, advance voting, and postal voting. Innovations across the Asia-Pacific region provide lessons for the world, not only on effectively running elections during a public health emergency, but also pointing to the future of election campaigns, in which early and remote voting becomes more common and online campaigning becomes more central. (d) Experiences elsewhere raise issues to watch out for in forthcoming elections in states and territories undergoing serious ‘pandemic backsliding’ in the protection of political freedoms. Analysis of Singapore and Indonesia indicates a rise in censorship under the pretext of addressing misinformation concerning COVID-19, and (in Indonesia) concerns about ‘votebuying’ through crisis relief funds. In Hong Kong the electoral and political system has been drastically reshaped in advance of the September elections.
Daly, Tom, 'Securing democracy: Australia's pandemic response in global context' (Governing during crises No Policy Brief No 1, 03 January 2020) Abstract: Key Points: The Policy Brief makes the following central points: (a) The COVID-19 pandemic has had a dramatic impact on democracies worldwide. An unprecedented number of states are simultaneously under a state of emergency and have derogated from key human rights treaties. Over 50 states have postponed elections. (b) Government responses in democracies worldwide can be divided into 4 broad categories: effective rationalists; constrained rationalists; autocratic opportunists; and fantasists. (c) Australia’s response falls into the ‘effective rationalist’ camp. The state has effectively addressed the pandemic through fact-based policy, acted within the constraints of the law, placed clear limitations on emergency actions, and developed innovative responses to address the crisis; principally, the National Cabinet. (d) That said, there is a need for attention to 6 key issues: reviving parliaments; making the National Cabinet more transparent; ensuring adequate restrictions on surveillance measures; organising forthcoming elections; mitigating the pandemic’s hollowing out of independent media across Australia; and seizing the moment for democratic reform.
Davis, Noel, 'Superannuation coronavirus legislation' (2020) 8(31) Australian Superannuation Law Bulletin 148-149 Abstract: As part of the Commonwealth Government's economic response to assist people who are economically affected by the coronavirus, legislation has been passed to allow them to withdraw up to $10,000 from their superannuation fund or funds in the 2019/20 financial year and up to another $10,000 in the 2020/21 financial year. Those amounts are received tax free.
de Flamingh, Jack and John Casey, 'Firefighting or reform?: The industrial response to COVID-19' (2020) (73) LSJ: Law Society of NSW Journal 74-76 Abstract: Employment law is dynamic, often changing with the political winds. In 2020, however, the winds of change were swift, and driven by the COVID-19 pandemic. In a two-part series in the May and June editions of LSJ, we examined the Fair Work Commission and Federal Government's initial responses to the crisis. Now, as a year like no other draws to a close, we summarise the most recent, and active, changes before concluding with an eye on what might come next.
de Flamingh, Jack and Kate Curtain, 'Mandatory Covid-19 vaccinations - are they lawful?' (2021) 82() LSJ: Law Society of NSW Journal 69-71 Abstract: Some employers can require employees to be vaccinated. The Fair Work Ombudsman has updated its guidance for employers and employees. Generally an employee cannot refuse work because colleagues are not vaccinated.
de Flamingh, Jack and Kate Curtain, 'Requiring the jab?: What's reasonable in Australian workplaces?' (2021) 76() LSJ: Law Society of NSW Journal 72-73 Abstract: As the COVID-19 vaccines are rolled out, attention has turned to whether employers can require employees to be vaccinated. The issues are evolving, however without a public health order, or an express obligation under existing terms of employment supporting a requirement for vaccination, most employers will not be in a position to direct employees to receive the vaccine.
Dehm, Sara, Claire Loughnan and Linda Steele, 'COVID-19 and Sites of Confinement: Public Health, Disposable Lives and Legal Accountability in Immigration Detention and Aged Care' (2021) 1(44) University of New South Wales Law Journal 60-103 Abstract: The global COVID-19 pandemic starkly revealed the underlying structural harms and produced vulnerabilities for people living in closed congregate settings like immigration detention centres (‘IDCs’) and residential aged care facilities (‘RACFs’). This article compares the Australian legal regimes that regulate IDCs and RACFs, conceptualising both as authorising and enabling sites of control, confinement and social isolation. We argue that specific COVID-19 measures have intensified a logic of social exclusion and disposability towards people in IDCs and RACFs. Through comparing recent COVID-19 litigation, the article explores the possibilities and limitations of engaging legal strategies to achieve social reform and legal accountability within both sites of confinement. Ultimately, we suggest that such COVID-19 litigation has the greatest possibility of advancing social justice when it is embedded in a broader politics of de-incarceration and abolition oriented towards political inclusion, public health and building more equitable and just communities.
Dehm, Sara and Anthea Vogl, ‘Immigration Amnesties in Australia: Lessons for Law Reform from Past Campaigns’ (2022) 44(3) Sydney Law Review 381–413 Abstract: In the wake of the COVID-19 pandemic, there have been growing calls to regularise the status of the over 64,000 undocumented people currently living in Australia without regular immigration status. Australia has previously had three legal immigration amnesties in 1974, 1976 and 1980. Yet, the history of these amnesties is little known. This article draws on newly-released and previously unexamined historical materials, including archival government documents and contemporaneous jurisprudence, to present an original account of Australia’s three past immigration amnesties as novel moments of executive power and decision-making in the realm of migration law. In doing so, it analyses their legislative context, their implementation and effectiveness in practice, and their legal legacies. Finally, the article addresses the lessons of these past immigration amnesties for current law reform and regularisation efforts, and for Australian migration law today.
Delaney, Kishaya and Amy Maguire, ‘Implementing the Sustainable Development Goals Post-COVID-19: A Study of Australia and Sweden’ (2022) 47(3) Alternative Law Journal 168–172 Abstract: The United Nations 2030 Agenda for Sustainable Development offers countries an opportunity to align domestic law and policy through its framework of international Sustainable Development Goals (SDGs), in an effort to transform the global community. The success of the SDGs rests on their domestic implementation, which can be judged by measurement against targets. This article demonstrates the variable effects of mixed domestic approaches to implementation, through a comparison between Australia and Sweden. Noting the impact of the COVID-19 pandemic and accompanying renewed importance of the SDGs, this article asserts that an integrated multilateral approach to implementing the SDGs (such as Sweden’s) and stronger domestic implementation will be key to recovering the losses sustained during the pandemic and meeting the goals outlined in the 2030 Agenda (in Australia and in other countries).
Dernikovic, Fiona and Marion Wright, 'Practice and procedure: Adjournments and e-trials in the COVID-19 context' (2020) 67() LSJ: Law Society of NSW Journal 68-70 Abstract: Two recent cases concerning adjournments illustrate the implications of the COVID-19 pandemic and the influence of the Federal Court's Special Measures in Response to COVID-19 note on practice and procedure. It seems there has been a rapid re-adjustment of the drivers underlying the 'just, quick and cheap' rationale for the resolution of disputes, with parties having to demonstrate a certain level of prejudice or unfairness (as opposed to mere inconvenience), before an adjournment will be granted.
Desiatnik, Ron J, ‘Editorial: Covid-19, The Australian Consumer Law and Serendipity’ (2022) 30(3) Australian Journal of Competition and Consumer Law 177–179 Abstract: It is a fact, a sad fact, that the COVID-19 pandemic has affected many sections of our society. Still, it is passing strange that this virus has produced, albeit indirectly, an elucidation of Australia’s consumer law. That fortunate result came about in the decision of the Federal Court in ‘Karpik v Carnival plc’, a case which, however, arose through most unfortunate circumstances.
Dey, Pritam and Julian Murphy, 'Accountable Lawmaking: Delegated Legislation & Parliamentary Oversight during the Pandemic' (Melbourne School of Government Policy Brief No 9, 01 January 2021) Abstract: This Policy Brief makes the following key points: (a) In responding to the COVID-19 pandemic, democratic states around the world have massively expanded executive powers. Much of this transfer of power has occurred through the delegation of legislative power from parliament to the executive. (b) Delegated legislation has been a major means of public governance in Australia during the pandemic. It is a process of executive law-making whereby government ministers, departments, agencies or other officers, rather than parliament, are empowered to make regulations with the force of law. (c) Governing by delegated legislation can raise concerns rooted in the rule of law and democratic legitimacy, which are heightened by the stringency of the measures they contain to suppress the virus and to address its economic and societal impacts. These concerns can be addressed by effective parliamentary oversight of such legislation. (d) However, in Australia, some state and territory parliaments have exhibited a worrying lack of initiative in overseeing the extraordinary executive powers exercised through delegated legislation. (e) There are a number of ways in which Australia could improve its parliamentary oversight of delegated legislation. Ensuring that executive-made laws are appropriately overseen by parliament will enhance democratic legitimacy and need not detract from the speed and efficiency with which such laws are made.
Dixon, Bill, ‘Conveyancing and Property Law: Has COVID-19 Modified the Obligations of a Mortgagee Exercising Power of Sale?’ 39(2) The Queensland Lawyer 80-82 (pre-published version) Abstract: In HSBC Bank Australia Ltd v Wang, Holmes CJ was required to consider the potential impact of the COVID-19 pandemic on the good faith obligations of a mortgagee exercising power of sale. These issues arose for consideration in the context of an application for the removal of a caveat lodged by a defaulting mortgagor.
Douglas, Michael and John Eldridge, 'Coronavirus and the Law of Obligations' (2020) 3() UNSW Law Journal Forum 1-11 Abstract: COVID-19 has touched every aspect of Australian society, including the law of obligations. This comment considers how the pandemic could affect contracts – a topic which is already a very popular subject of law firms’ client updates. After discussing frustration and force majeure, it addresses a few relevant torts, including trespass to the person, the tort recognised in Wilkinson v Downton, and negligence. The comment is intended to provoke further dialogue on how COVID-19 is affecting Australian law, including in the forthcoming thematic issue of the University of New South Wales Law Journal on ‘Rights Protection amidst COVID-19’.
Evans, Kylie and Nicholas Petrie, 'COVID-19 and the Australian Human Rights Acts' (2020) 3(45) Alternative Law Journal 175-179 Abstract: This article considers how the response to COVID-19 in Australia may be examined and challenged by the Human Rights Act 2004 (ACT), the Charter of Human Rights and Responsibilities 2006 (Vic) and the Human Rights Act 2019 (Qld) (collectively, the Australian HRAs). It also considers the unique model of rights protection provided at the Commonwealth level under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (2011 Act). The authors argue the Australian HRAs and the 2011 Act have the potential to play a key role in scrutinising some laws implementing the COVID-19 measures, and action taken under those laws.
Farbenblum, Bassina and Laurie Berg, ''We Might not Be Citizens but We Are Still People': Australia’s Disregard for the Human Rights of International Students during COVID-19' (2021) 3(26) Australian Journal of Human Rights (forthcoming) Abstract: Globally, in 2020, the health, social and economic consequences of lockdown laws that were enacted to contain the pandemic disproportionately disadvantaged temporary migrants. In his now infamous statement to visa holders in March 2020, the Australian Prime Minister contrasted “good times” during which “it’s lovely to have visitors to Australia” with “times like this” in which non-residents were no longer welcome in Australia. Despite its relative global affluence, Australia excluded temporary visa holders from virtually all government wage subsidies and other financial support packages. Against the backdrop of Australia’s human rights obligations to migrants in its territory, this article empirically examines the impact of Australia’s response to the pandemic on international students in Australia, the largest group of long-term temporary visa holders who, with their limited work rights during their studies, have become a de facto low wage migrant workforce in this country. It presents new large-scale data from a July 2020 survey of over 5,000 international students and recent graduates reflecting widespread inability to pay for essential needs (including food and medical needs), lack of access to secure housing, lack of access to emergency support, and their experiences of racism, discrimination and social exclusion in Australia during the pandemic. The article concludes that there must be a national and global reckoning with the immediate and long-term impact of government policies on migrants during the pandemic and reinvigoration of the relevance of the human rights framework during “times like this”.
Fellows, Jamie and Mark David Chong, 'Australia’s Modern Slavery Act: Challenges for a post-COVID world?' (2020) 3(45) Alternative Law Journal 209-214 Abstract: When the coronavirus pandemic (COVID-19) struck in early 2020, the Commonwealth government eased reporting deadlines and extended the date for firms required to submit modern slavery statements under Australia’s Modern Slavery Act 2018 (Cth). The economic recession caused by COVID-19 has produced the necessary conditions for further exploitation and enslavement of vulnerable individuals. This article asserts that, even without COVID-19, the Modern Slavery Act 2018 (Cth) in its current form will do little to address forms of modern slavery such as sexual exploitation, forced marriage, trafficking and domestic servitude. This is because the Modern Slavery Act 2018 (Cth) primarily targets labour exploitation and requires suppliers to voluntarily disclose their involvement with modern slavery.
Fenna, Alan and Shaun Goldfinch, ‘The Politics and Policy of COVID-19 in Australia and New Zealand’ in Anthony BL Cheung and Sandra Van Thiel (eds), Crisis Leadership and Public Governance during the COVID-19 Pandemic (World Scientific, 2022) 211–235
Finlay, Lorraine and Rosalind Croucher, ‘Limiting Rights and Freedoms in the Name of Public Health: Ensuring Accountability during the COVID-19 Pandemic Response’ in Belinda Bennett and Ian Freckelton (eds), Australian Public Health Law: Contemporary Issues and Challenges (Federation Press, 2023) ch 7
Finnane, Mark, 'Governing in a Pandemic: Law and Government in Australia, 1919' (2021) Australian Historical Studies (advance article, published 18 May 2021) Abstract: The 1918–19 pneumonic influenza pandemic reached into mainland Australia in January 1919 and spread through the country over the next nine months. As a major public health emergency the pandemic proved to be a significant test of Australian governance. This article explores this history through attention to the imperial framing of Australian international and regional responses, the mechanisms of federal-state relations, the constitutional framework for management of domestic health and public order, and the legal disposition of rights and responsibilities as they arose in the events of 1919. The experience of 1919 highlighted institutional strengths of the Australian state by this period, in constitutional and governmental arrangements, and in capabilities of domestic management of health and public order.
Finnane, Mark, '‘Phillips' Brief: The curious case of a lost emergency: Section 119 in 1919' (2021) 2(45) Criminal Law Journal 134-136 Abstract: The disruptive effects of pandemic became familiar terms of discourse in the course of the 2020 experience of COVID-19. They manifested themselves not only in a contentious politics of public health response and accompanying civil control measures. They have been evident too in the capacity of a major health crisis to shift the terrain of “politics as usual” into new possibilities of governance and State provision. Such innovation as has occurred in Australian public policy has taken place against a background of constitutional arrangements for the Federation that, for good or ill, date to the late 19th century.
Flynn, Alexandra and Amelia Thorpe, 'Pandemic Pop-Ups and the Performance of Legality' (UNSW Law Research Paper No 21-44, 21 2021) Abstract: Cities around the world have rushed to respond to the coronavirus pandemic by regulating public space to promote social distancing and stimulate economic recovery. The resulting decisions are what we term ‘pandemic pop-ups’ - hasty, real-time, and temporary changes to the use and regulation of public space. Focusing on Toronto, Canada and Sydney, Australia, we argue that pandemic pop-ups extend beyond immediate infrastructure needs to how cities govern generally. Pop-ups may replace cars with bikes or extend restaurants into streets, and for this they have been celebrated: for saving jobs, and for making streets safer and more enjoyable. Pandemic pop-ups are not universally positive, however. They also remove tent encampments, make racialized residents more vulnerable to sanctions, and rush through controversial infrastructure projects. As we consider pandemic and post-pandemic cities, the governance of pop-ups demands critical scrutiny. The laws that regulate urban space are always open to multiple interpretations (Cover, 1983). The force of law depends on its social context, on the ability of legal actors to give effect to their preferred interpretations and the lack (or inability) of others to challenge those interpretations. Through pop-ups, cities enact a particular form of legality – by which we mean not just legal texts, but the range of rules, practices and understandings through which those texts take effect in the world – that weakens democratic oversight and participatory processes. With an emphasis on speed over process, pop-ups have invariably been deployed without oversight or engagement, and rarely involving the voices of racialized or vulnerable people. We recognize the value that pop-ups can bring to cities – socially, economically and environmentally – as well as the urgent challenges that make pandemic pop-ups critical. In this paper, however, we focus on more troubling aspects that have often been overlooked. To do this we challenge two features that are conventionally associated with pop-ups: their irregularity and their scope. First, most accounts describe pop-up planning as exceptional, a deviation from usual practices of decision-making. Yet in the time of COVID-19, pop-ups are the ‘new normal’. Second, we argue that pop-up infrastructure is broader than previously acknowledged, extending beyond bike lanes and patios to homeless encampments and policy proposals. Since pandemic pop-ups re-shape public space and the regulations through which it is governed, decisions must be made within a framework of inclusive and participatory decision-making.
Forsyth, Anthony, ‘COVID-19: Advancing the Industrial Relations Reform Objectives of Australian Employers?’ (2022) 50(3) Australian Business Law Review 151–172 Abstract: This article seeks to assess the extent to which the industrial relations reform objectives of Australian employers and business groups have been advanced by the COVID-19 pandemic. It examines the rapid changes to employment regulation in the early stages of the crisis, including urgent award variations giving employers in key economic sectors flexibility to alter employment conditions, the granting of similar powers to businesses through JobKeeper-related amendments to the ‘Fair Work Act 2009’ (Cth), and variations of enterprise agreements. The article then focuses on the industrial relations reform process instigated by the Coalition Government in May 2020, and the ‘Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020’ (Cth) which emerged later that year. Analysis of the provisions of this legislative proposal, only partially enacted in March 2021 due to opposition in the Senate, is linked to consideration of the reform objectives of the business community in recent years in three areas: flexible forms of work, award regulation and enterprise bargaining. The article concludes that while only some aspects of the employer agenda have been realised to date, business interests have dominated the national discourse on workplace regulation in response to the pandemic at the expense of the legitimate concerns of workers and unions. However, this tendency is likely to be reversed as the newly-elected Albanese Labor Government implements its policy commitments on workplace reform.
Foster, Gigi and Sanjeev Sabhlok, Do Lockdowns and Border Closures Serve the “Greater Good”? A Cost-Benefit Analysis of Australia’s Reaction to COVID-19 (Connorcourt Publishing, 2022) link to book page on publisher website
Abstract: The world has been shaken by the response of governments to the COVID-19 pandemic in a way unlike what we have seen in any prior global health event. What started as a local health anomaly in one Chinese province quickly became a world-stopping crisis affecting every major nation in 2020. Industries from travel to manufacturing suffered sudden, acute disruptions due to political action to lock down cities and block the free movement of people and goods within and between countries. Was all of this necessary to save lives, or did it on net produce human damage?
Freckelton, Ian, 'COVID-19 and Family Law Decision-Making' (2020) 4(27) Journal of Law and Medicine 846 Abstract: All aspects of family law have been affected by the COVID-19 pandemic. It has posed challenges for the operation of the Family Court of Australia and the Federal Circuit Court, the obtaining of expert reports, the conduct of hearings, the functioning of contact centres, and the mode of delivery of children’s schooling. In Australia and in Ontario an attempt has been made to be clear about what is expected of parents during the period of crisis. An Australian innovation has been the establishment of a COVID-19 List and communication by the Chief Justice of the Family Court about what is expected of parents by way of compliance with orders from chief health officers and safe practices to protect children against infection, especially those with particular health vulnerabilities. This column reviews such initiatives and a number of the significant family law decisions during the early phase of Australia’s response to the COVID-19 pandemic.
Freckelton, Ian, 'COVID-19: Criminal Law, Public Assemblies and Human Rights Litigation' (2020) 4(27) Journal of Law and Medicine 790-806 Abstract: Australia’s criminal law was affected by the COVID-19 pandemic from the outset and then progressively as statutory measures and judicial rulings on matters such as bail entitlements, judge-alone trials, sentences and applications for demonstrations and public assemblies were made by courts. This column identifies some of the major decisions made during the period of the lockdown measures between March and July 2020, and reviews significant New South Wales judgments in relation to the lawfulness of mass gatherings during the period of lockdown as expert assessments of risks of community transmission of the virus waxed and waned. It explores the importation into Australia’s criminal law of public health principles for the protection of the community, and its compatibility with traditional principles of criminal justice.
Freckelton, Ian, ‘Vaccinating Children: The COVID-19 Family Law Jurisprudence’ (2022) 29(3) Journal of Law and Medicine 645–662 Abstract: Australian, New Zealand, English and Canadian courts have made a number of orders, often in the context of parenting disputes, requiring children to be vaccinated. Complementary therapy options have generally not been permitted as an alternative to mainstream vaccination. Debates about parental entitlements to make decisions about such matters have taken place in the context of contested family law litigation during the COVID-19 era. However, by contrast with Ontario Superior Court of Justice decisions in 2022, a series of Australian decisions, including the judgment of Sutherland CJ in Clay & Dallas [2022] FCWA 18, have developed the law further, having regard to both the capacity of a minor to consent to vaccination and reviewing a variety of factors going to children’s best interests at different junctures during the pandemic, finding it generally to be in the best interests of children to receive COVID-19 vaccinations. This is likely to flow back into curial decision-making about vaccinations more broadly, as well as cognate matters.
Freeburn, Lloyd and Ian Ramsay, 'Capital Raising by Companies During the COVID-19 Crisis: An Analysis of Recent ASX Reforms' (2020) 7(37) Company and Securities Law Journal 502-507 Abstract: The effects of the COVID-19 crisis have driven many listed Australian companies to raise emergency capital. These share issues have been facilitated by a relaxation of the rules applying to capital raising by the Australian Securities Exchange, a move supported by the Australian Securities and Investments Commission. The reforms to the rules draw on the experience of the financial crisis in 2008 - 2009. They are designed to assist companies adversely affected by the COVID-19 crisis to raise capital to survive the crisis. The nature of the reforms and the capital raisings to which they relate have been the subject of competing concerns. In particular, the enhanced disclosure requirements that have accompanied the relaxation of the capital raising rules have been criticised by some as unwarranted and by others as insufficient. In this research note, the authors provide information on the number of capital raisings since the beginning of COVID-19 and evaluate the competing arguments regarding the recent capital raising reforms.
Freudenberg, Brett and Melissa Belle Isle, 'Confidence in a Pandemic: Students’ Self-efficacy when Volunteering in an Online Tax Clinic' (2021) 4(27) New Zealand Journal of Taxation Law and Policy 279-307 Abstract: With the advent of COVID-19 restrictions, a student tax clinic had to transform itself from delivering face-to-face pro-bono tax assistance to a fully online environment. This transformation to online had a number of technical and legal issues to navigate, such as how to provide for adequate supervision by a registered tax agent of students’ assistance. While students appreciated the ability to continue their experience working at the tax clinic online, what did it mean in terms of their self-efficacy (confidence)? Particularly, with the online environment would students still have sufficient opportunities to develop their self-efficacy through mastering, modelling, social persuasion, and judgements of their own physiological states? This article describes how the tax clinic was able to operate fully online and will provide data concerning the development of students’ self-efficacy. To provide a comparison, data from prior cohorts who participated face-to-face will also be considered.
Freudenberg, Brett et al, ‘Students’ Professional Identity and a Fully Online Tax Clinic’ in Amy Lawton et al (ed), International Handbook on Clinical Tax Education (University of London Press, 2023) 240–258 Abstract: A key benefit of work-integrated learning is the socialisation of students with their future professional career and identity. That is, students can start to appreciate what it means to be a professional in their chosen career, in terms of their conduct and how they identify with that. Due to the advent of restrictions imposed from the outbreak of COVID-19, the students involved at the Griffith University tax clinic had to move from a physical office space with face-to-face interaction with their tax agent supervisor and clients, to a totally online office via Microsoft Teams and YouTube. Activities conducted within this online environment included staff meetings, client meetings, client lodgements, presentations and research. However, what effect did this online office environment have on the development of students’ professional identity as tax advisers? This chapter will describe how the tax clinic was able to operate fully online, and it will provide data as to how students perceived the development of their professional identity as a tax adviser in this online environment. To provide a comparison, data from prior cohorts who participated in the physical office space will also be considered.
Furlong, Jordan, 'Law firm essentials for surviving the COVID-19 pandemic' () Aug 2020() Australasian Law Management Journal 1-7 Abstract: During the COVID-19 pandemic, resource-poor small law firm practitioners have to take care of themselves, their clients and their cashflow if they hope to survive, while at the same time catering to the whims of all their stakeholders. Jordan Furlong offers some tips on how to do it.
Gageler, Stephen, ‘Law in a Time of COVID’ (2022) (171) Victorian Bar News 28–30 Abstract: The Title of this presentation - ‘Law in a Time of COVID’ - is with apology to Gabriel Garcia Marquez. The subtitle could well be ‘Never let a good crisis go to waste.’ The aphorism is often attributed to Churchill. We who work in Australian courts and at the Australian bar have experienced the longest interruption of, and greatest disruption to, our institutional and professional practices that has occurred in our professional lifetimes.
Gardiner, Christie and Lee Aitken, 'Rebutting the Presumption of Intentional Revocation of a Will by Destruction: An Examination of Electronically Signed and Remotely Witnessed Wills' (2022) (51) Australian Bar Review 70-79 Abstract: The introduction of electronic execution and remote witnessing and attestation of Wills by New South Wales, Victoria and Queensland in response to COVID-19 invites examination of a wide range of foreseeable probate issues. While wet ink Wills ordinarily result in a single static physical document, a Will executed under the interim measures may result in the production of a range of physical, digital or hybrid records. In this article we discuss whether and how this disrupts the common law presumption of intentional revocation of a Will by destruction when the original Will is last traced to the testator’s possession but cannot be found on their death. We argue that the nature of electronic Wills can pose challenges for rebutting the presumption of destruction. These challenges include poor access to digital records, uncertainty as to which record is the original file and which the copy, and the risks associated with ambiguous document storage practices. However, we also suggest that electronic Wills can provide a level of assurance that can overcome some of these challenges, where at least a copy of the Will is available. Electronic signatures may even serve to displace the need for traditional witnessing requirements, potentially broadening access to Will-making in the community.
Gates, Samantha, ‘Pandemics, Privacy and Pressing Constitutional Limits: The Commonwealth’s Use of the Nationhood Power to Facilitate COVIDsafe’ (2023) 50(2) University of Western Australia Law Review 194–223 Abstract: The advent of COVID-19 saw the Commonwealth Government launch the voluntary contact tracing app – COVIDSafe. Accompanying the launch of the app, the Commonwealth inserted Part VIIIA into the Privacy Act 1988 (Cth) (‘Privacy Act’). Part VIIIA put in place a scheme of privacy protection for users of COVIDSafe to increase public trust in the app, and therefore its uptake. What is remarkable about Part VIIIA is its constitutional basis. While the constitutional validity of the Privacy Act is sourced in the external affairs power, the Commonwealth instead relied on the amorphous nationhood power to support Part VIIIA. The aim of this article is to examine Part VIIIA and determine whether it can truly be said to be a law with respect to the nationhood power. This will carry implications for future uses of the nationhood power by the Commonwealth in the realm of privacy protection.
Gaze, Beth, ‘Responding to Exponential Inequalities in Australia: Beyond the Limits of Equality and Discrimination Law’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 183 Abstract: This chapter discusses the Covid-19 pandemic in Australia and the effects on equity of the pandemic and the government response. Vulnerable groups such as the elderly, and low paid, precarious workers and the people they cared for were the most affected and exposed to risk. The pandemic’s impact on already disadvantaged groups was partially ameliorated by the government’s public health response, although selective government responses left many vulnerable groups inadequately protected. Public health is not adequately dealt with in the equality and discrimination laws. The chapter argues for dual reforms: first to fill the gaps in Australia’s anti-discrimination laws, and secondly, more broadly, to adopt an approach that recognizes universal vulnerability to social, economic, and health risks, where government’s role includes providing basic protection for everyone regardless of protected attributes.
Gesley, Jenny, 'Regulating Electronic Means to Fight the Spread of COVID-19' (Law Library of Congress Legal Report No , 06 January 2020) Abstract: Note: This page includes a comparative summary, and links to the full report and a COVID-19 Contact Tracing Apps world map. Extract from Introduction: This report surveys the regulation of electronic means to fight the spread of COVID-19 in 23 jurisdictions around the globe: Argentina, Australia, Brazil, China, England, France, Iceland, India, Iran, Israel, Italy, Japan, Mexico, Norway, Portugal, the Russian Federation, South Africa, South Korea, Spain, Taiwan, Turkey, the United Arab Emirates, and the European Union (EU).
Ghezelbash, Daniel and Nikolas Feith Tan, 'The End of the Right to Seek Asylum? COVID-19 and the Future of Refugee Protection' (Robert Schuman Centre for Advanced Studies Research Paper No RSCAS 2020/55, 20 2020) Abstract: The COVID-19 pandemic has had a devastating impact on the institution of asylum, exacerbating longer term trends limiting the ability of asylum seekers to cross-borders to seek protection. As a result, the early months of 2020 saw an effective extinguishment of the right to seek asylum. This working paper examines how this played out in Australia, Canada, Europe and the United States. National and regional responses varied, with Australia and the United States effectively ending asylum seeking. In Europe, some states upheld the right to seek asylum by exempting asylum seekers from general border closures, while other countries used the crisis to suspend the right to seek asylum. Finally, this working paper explores strategies for restoring and protecting the right to seek asylum beyond the pandemic.
Giancaspro, Mark, 'Perilous Fires, Pandemics and Price Gouging: The Need to Protect Consumers from Unfair Pricing Practices during Times of Crisis' (2021) 4(44) UNSW Law Journal 1458-1481 Abstract: Recent crises affecting Australia, including the Black Summer bushfires and Coronavirus pandemic, have devastated social morale and crippled our economy. Countless lives and properties have been damaged or lost. These conditions have inflated demand for basic consumer goods and services, such as hygiene products, staple foods, and utility services. Sadly, some sellers have exploited public desperation, with widespread reports of price gouging. This notorious practice involves pricing high-demand essentials at levels significantly higher than what is commonly considered acceptable, reasonable or fair. This article critically analyses moral and economic arguments surrounding statutory controls before proposing a model law regulating price gouging during times of crisis. It argues that such a law is both essential and easily adaptable to Australia’s consumer law framework. The model law provides a basis for the federal government to consider desperately required change to ensure consumers do not suffer during current crises or those to come.
Giddings, Jeff, 'Clinic in the times of COVID19' (2020) 2(11) Jindal Global Law Review 229-249 Abstract: This article considers the challenges faced by clinical legal education programmes in responding effectively to the COVID19 pandemic. Client needs are different and more acute. They also need to be balanced with the safety of students and staff. Services will need to be delivered remotely. The article considers some of the key legal issues generated by the pandemic, highlighting the need for clinics and other legal service providers to respond to these emerging legal and related needs. In responding, clinics will be best served by adhering to their pedagogical principles in the design of new services and in reshaping existing practices. This should enable clinical programmes to ensure that the experience of students remains distinctive, albeit different. The experience of the Monash Clinical Program is provided to demonstrate the value of using a clinical best practices framework to guide the responses to the challenges generated by COVID19. Research related to clinical best practices undertaken as part of the planning for implementation of the Monash Clinical Guarantee has shaped the programme’s response to COVID19. The article then considers a range of issues generated by the move to virtual delivery of client services and the clinic’s teaching programme. The article concludes with contemplation of how clinical programmes can best plan for ‘the new normal’ that will present itself after the pandemic.
Goding, Vincent, ‘To Repay or Not to Repay”: Directors’ Duties and the Jobkeeper Wage Subsidy Scheme’ (2022) 96(12) Australian Law Journal 869-871 Abstract: The JobKeeper wage subsidy scheme (JobKeeper) was the federal government’s flagship economic policy response to the pandemic.1 Running initially from March to September 2020,2 it was designed to assist businesses affected by the pandemic to cover their wages by providing a subsidy of $1,500 per eligible employee per fortnight. Under the first iteration, an entity would qualify if it passed a basic decline in turnover test, calculated by comparing “projected” turnover for a relevant period in 2020 with the corresponding period in 2019.3 There was no requirement to reassess the projection during the first six months of the scheme. That the decline in turnover might not eventuate, or that an entity might remain profitable, or increase profits during the period of support, was irrelevant once the test was met. Widely supported and praised for contributing to the country’s economic recovery, JobKeeper and its perceived undeserving beneficiaries were also criticised when public funds ended up subsidising the wages bills of profitable – even booming – companies. Due to their transparency, publicly listed companies bore the brunt. JobKeeper “profiteers” were called upon to repay the unnecessary corporate welfare. Few did. It has been reported that at least $38 billion under the scheme went to companies whose turnover did not fall below applicable thresholds; while $2.6 billion went to companies whose turnovers doubled or tripled during quarters for which they claimed JobKeeper.4 While there is no reliable public record of the total amount repaid, based on disclosures to the ASX the amount repaid by listed entities as of July 2022 is just over $242 million.5 JobKeeper provides a contemporary case study to consider corporate responsibilities and the trajectory of the law regarding directors’ duties to act in companies’ best interests.
Godwin, Andrew, 'The Contractual Impact of COVID-19 on Corporate and Financial Transactions' (2020) 2(48) Australian Business Law Review 116-125 Abstract: During the COVID-19 pandemic, the social isolation measures, the closure of borders and the restrictions on business activity (including the provision of goods and services in the ordinary course of business) have seriously disrupted private contractual arrangements between commercial parties on both a domestic and cross-border basis. This article provides a high-level overview of the contractual impact of COVID-19 on corporate and financial transactions in three areas: material adverse change clauses; force majeure clauses; and the doctrine of frustration. The analysis highlights both the complexities of these concepts and also the extent to which their operation is subject to the specific circumstances, even in the context of the COVID-19 pandemic.
Gogarty, Brendan and Gabrielle J Appleby, 'The Role of the Tasmanian Subordinate Legislation Committee During the Covid-19 Emergency' (2020) 3(45) Alternative Law Journal 188–194 Abstract: On 17 March 2020, Tasmania entered a ‘state of emergency’ in response to COVID-19. Parliament stands adjourned, and the executive is regulating the crisis through delegated regulations that significantly limit civil rights and freedoms. Despite assurances Tasmania's Subordinate Legislation Committee would scrutinise executive power throughout the crisis, its role has been limited, due to an overly prescriptive (we argue incorrect) reading of Tasmania's scrutiny framework, which has not been properly reformed in several decades. This is a salient lesson about why constitutional laws require regular reviewed and modernisation, to ensure Parliaments remain supreme even (especially) during crises and emergencies.
Golding, Gabrielle, 'Unfair dismissal and the Coronavirus pandemic: Creative responses from Australia’s Fair Work Commission' (2021) 4() Revue de droit comparé du travail et de la sécurité sociale 100-115 Abstract: This article reviews five key decisions of Australia’s Fair Work Commission, each of which concerns a claim for unfair dismissal under the Fair Work Act 2009 (Cth) by employees whose employment was terminated during the Coronavirus pandemic. Each decision demonstrates that the Commission has exercised its decision-making powers in a creative, yet highly responsive manner, during this global crisis.
Gordon, Faith, Hannah Klose and Michelle Lyttle Storrod 'Youth (in)justice and the COVID-19 pandemic: rethinking incarceration through a public health lens' (2021) 1(33) Current Issues in Criminal Justice 27-46 Abstract: Serious concerns for the safety and well-being of children and young people are multiplying due to the COVID-19 pandemic. The United Nations Committee on the Rights of the Child has called for children’s urgent release from prison. Evidence demonstrates that incarceration can aggravate existing health conditions and result in new health issues, such as depression, suicidal thoughts and post-traumatic stress disorder (Australian Human Rights Commission [2019, October 11], UN global study on children deprived of liberty, https://humanrights.gov.au/about/news/un-global-study-children-deprived-liberty). This paper draws on findings from a larger study involving 25 qualitative interviews with policy makers, practitioners and researchers working in youth justice and utilises Victoria in South East Australia as a case study. Victoria represents the Australian state worst affected by COVID-19 and has one of the highest levels of children and young people incarcerated. This paper recommends decarceration of children and young people, with alternatives built around principles of a public health model. It argues that this holistic approach can promote children’s rights and crucially attend to the physical and emotional well-being of children and young people, compared with the current arrangements.
Gordon, Jeffrey, ‘Protest Before and During a Pandemic’ (2022) 50(4) Federal Law Review 421–448 [accepted manuscript version available on SSRN] Abstract: Liberal democracies have struggled recently with protecting freedom of speech and assembly during the COVID-19 pandemic. This is an old, general problem in new, specific guise. In Australia, the Supreme Court of New South Wales has been exercising a statutory jurisdiction to authorise or prohibit proposed public assemblies for 40 years. This article offers the first sustained analysis of the Court’s jurisprudence. After describing the operation of the statutory permit scheme and systematising the case law, this article critiques the Court?s jurisprudence from the perspective of free speech and freedom of assembly. It then argues that there is a puzzle at the heart of the legislative scheme: the conferral of a wide discretion the exercise of which produces a narrow legal order. This puzzle suggests that the legal effect of an authorising or prohibiting order does not exhaust its broader social significance.
Gray, Anthony, ‘Proportionality in Administrative Law and Its Application to Victoria’s Proposed Pandemic Legislation’ (2022) 29(1) Australian Journal of Administrative Law 21–42 Abstract: This article describes the use of proportionality in United Kingdom and Australian administrative law. There remains uncertainty regarding use of the doctrine, particularly in Australia. The article defends proportionality on the basis it reflects the rule of law. Its flexibility is an asset. Arguments against proportionality are considered weak. The use of proportionality reflects a culture of justification for the use of government power in a way that impacts an individual’s human rights, which reflects Australia’s liberal democracy. The article then considers application of proportionality principles to Victoria’s mooted pandemic laws. It finds that proportionality principles provide a more fertile ground for effective judicial review of the proposed extreme measures than Wednesbury unreasonableness.
Grayson-Morison, Reegan and Stacey Steele, 'Judicial responses to COVID-19: Japanese and Victorian courts' use of technology' (Asian Legal Conversation: COVID-19 No , 24 January 2020) Abstract: A/Professor Stacey Steele and Reegan Grayson-Morison discuss Japanese criminal justice in this second post on the Japanese justice system and responses to COVID-19. In this post, they consider detention applications (勾留 kōryū), bail (保釈 hoshaku), the management of detention houses (拘置所 kōchisho, 留置施設 ryūchisisetu) and prisons (刑務所 keimusho, 少年刑務所 shōnen keimusho), and the ability of lawyers to interact with clients. Reegan also offers some comparative insights into the measures being taken in Victoria in relation to these matters.
Greener, Mihal, '‘COVID bail’: the response of Victorian courts and prisons in navigating the impact of COVID-19' (2021) 1(33) Current Issues in Criminal Justice 89-93 Abstract: The rapid increase in applications for bail was one of the earliest responses to COVID-19 across the Victorian court system. As the courts addressed the challenges that the pandemic posed it was accepted that COVID-19 would be taken into account as a surrounding circumstance relevant to the determination of bail applications.The consideration of conditions in custody under COVID-19 restrictions as a factor relevant to the determination of bail applications has highlighted the need for greater communication and transparency of the onerous conditions for prisoners under COVID-19 restrictions.While it was established that the impact of the pandemic on those in custody would be assessed by the courts on a case by case basis, the paucity of information on lockdown conditions within Victorian prisons has impeded the court’s ability to assess the competing considerations before it in determining questions of bail.
Greenleaf, Graham and Katharine Kemp, 'Australia’s ‘COVIDSafe App’: An Experiment in Surveillance, Trust and Law' (2021) () International Data Privacy Law Article ipab009 Abstract: The joint Australian governments’ coronavirus contact tracing app, marketed as ‘COVIDSafe’, was released on 26 April 2020 for public download by the federal government, together with an emergency Determination under the Biosecurity Act to govern its operation, a Privacy Impact Assessment (PIA) with the Health Department’s response to that PIA, and (not least) the App itself and its privacy policy. It is a package intended to create sufficient public confidence to result in downloads of the app by a sufficient percentage of the Australian mobile-phone-owning population, for it to have a significant effect on the tracing of persons infected with the COVID19 virus. In the first few days since its launch nearly 3 million Australian’s have downloaded the app.When Parliament resumes, probably on May 12, it is expected that the government will introduce legislation to replace the non-disallowable Determination. This article analyses the steps that Australian governments need to take if public trust is to be justified, and aims to make a constructive contribution to the development of better legislation and greater transparency.We conclude that the conditions necessary to justify sufficient public trust in government for the Australian public to opt in voluntarily to the installation and use of the COVIDSafe app, and to not opt out, are lacking. Many of the main deficiencies we identify in this article are remediable: five deficiencies in transparency; and nine categories of improvements to the current Determination by the proposed COVIDSafe Act. However, the question of whether an individual Australian would be well advised to install and run the app remains a decision which depends on individual circumstances. Note: The Act referred to above, the Privacy Amendment (Public Health Contact Information) Act 2020 (Cth) (‘the COVIDSafe Act’) was assented to on 15 May 2020. The authors' analysis of that Act is G. Greenleaf & K. Kemp 'Australia’s COVIDSafe experiment, Phase III: Legislation for trust in contact tracing' at https://ssrn.com/abstract=3601730.
Greenleaf, Graham; Kemp and Katharine, 'Australia’s COVIDSafe Experiment, Phase III: Legislation for Trust in Contact Tracing' (University of New South Wales Law Research Series No , 15 January 2020) Abstract: The joint Australian governments’ coronavirus contact tracing app, marketed as ‘COVIDSafe’, was released on 26 April 2020 for public download by the federal government, together with an emergency Determination under the Biosecurity Act to govern its operation. In a brief federal Parliamentary sitting from 12-14 May, the Parliament enacted the Privacy Amendment (Public Health Contact Information) Act 2020 (Cth) (‘the COVIDSafe Act’) on 14 May 2020.The COVIDSafe app is more toward the centralised than decentralised end of the spectrum in the design of such apps, but its use is voluntary, and the government claims that will continue to be the case.The Act aims to create sufficient public confidence in the privacy protections surrounding the COVIDSafe app to result in downloads and use by a sufficient percentage of the Australian mobile-phone-owning population, for it to have a significant effect on the tracing of persons infected with the COVID19 virus. In the first two and a half weeks since its launch over 5.5 million Australian’s have downloaded the app, about 25% of those possible, and 20% of the population. Public trust must become more widespread, before success in uptake is likely to follow.Now that the Bill has been enacted, the purpose of this article is to provide a reasonably comprehensive explanation of the provisions of the COVIDSafe Act and important aspects of their Australian context. Significant deficiencies in both the extent of transparency around the introduction of the COVIDSafe app, and the privacy-protective provisions of the Act, are identified and improvements suggested. These extensive suggestions are made because debate over the app and the Act is not over, and opportunities to obtain improvements may arise, particularly through the operation of the two Parliamentary committees examining Australia’s COVID-19 response, and the human rights implications of the Act.Many other countries are developing contact tracing apps. Australia’s experiment is further advanced than most that are attempting to build a system based on voluntary uptake, protected by legislation. The results of its experiment will be of interest to many.
Grey, Alexandra, ‘Communicative Justice and COVID-19: Australia’s Pandemic Response and International Guidance’ (2023) 45(1) Sydney Law Review 1–43 Abstract: This article is driven by concerns over communicative justice and the author’s earlier research finding that only a patchy framework of laws and policies guides decisionmaking for Australian governments’ multilingual public communications. The article investigates the additional guiding role of international law, specifically the International Covenant on Economic, Social and Cultural Rights and recent commentary by international organisations, alongside an original, empirical case study of Australian governments’ COVID-19 communications. In analysing the Australian case study in light of the international guidance, the article concludes that although Australian COVID-19 communications were available in a relatively high number of languages, they were characterised by inefficiencies and limited community input or strategic planning, leaving Australia arguably falling short of progressively realising its right-to-health obligations.
Grimshaw, Carol, ‘Electronic Signatures: Across the Border to e-Signing?’ (2022) 96(8) Law Institute Journal 44–47 Abstract: E-signing became more commonplace during the COVID-19 pandemic but there are still jurisdictional issues to be aware of.
Guthrie, Robert, Robert Aurbach and Marina Ciccarelli, ‘Emerging Issues from COVID-19 in the Australian Workplace: What Is COVID-19?’ (2022) 29(4) Journal of Law and Medicine 1182 Abstract: This article addresses a range of workplace issues, with a focus on workers' compensation and return to work, and employment law and related medical issues after the outbreak and spread of COVID-19 in Australia since 2020. It will briefly address some changes to the insurance industry generally and then consider the sometimes complex issues arising from workers' compensation claims, which have changed behaviours in claims and injury management. It concludes the theme emerging from decided cases to date that employers, insurers, and rehabilitation providers must adopt a reasonable approach to the consultation and implementation of workplace changes affecting injured workers subject to return-to-work programs.
Hack, Andrew and Jeff Brown, 'Legal update: COVID-19: Will my hearing go ahead?' (2020) 2(32) Australian Restructuring Insolvency & Turnaround Association Journal 33-36 Abstract: How the courts have been responding to the practical issues of lock-down.
Hamlyn, Michelle, 'A health check on open justice in the age of COVID-19: The case for the ongoing relevance of court reporters' (2020) 5(42) Bulletin (Law Society of South Australia) 6-8 Abstract: Extract: The importance of the media’s role is heightened by the disruption to the courts’ usual processes wrought by COVID-19 public health directives. A review of the cause lists reveals hearings being conducted, variously, in physical courtrooms, in virtual courtrooms hosted on Webex or Teams, or by telephone. Pleasingly, the courts appear mindful of the requirements of open justice in this changing landscape. In most cases it remains possible for non-parties to obtain dial in details and observe proceedings, albeit at the court’s discretion, and with varying levels of ‘invitation’ versus requiring increased initiative by the nonparty. Some limited matters of substantial public interest are reportedly being livestreamed, and there are undoubtedly opportunities as well as risks associated with that. However, there remains at present a greater risk of persons who intended to observe a hearing being unable to do so due to lack of preparedness or technical difficulties.
Hammerschlag, David, ‘Case Managing Building Litigation during COVID-19: “Will We Go Back to the Way We Were?”’ (2022) 37(5) Building and Construction Law Journal 437–441 Abstract: In March 2020, when the COVID-19 pandemic reached New South Wales it necessitated changes to case management. Some of the changes brought challenges but, strangely enough, some improvements and additional efficiencies have been achieved. I suspect that we will not go back to the way we were in all respects. I propose to identify the pandemic driven case management changes, identifying those which I think are here to stay, wholly or in part.
Herro, Anthony, 'The impact of COVID-19 on commercial leasing' (2020) (71) LSJ: Law Society of NSW Journal 90-91 Abstract: On 7 April 2020 the National Cabinet adopted the 'National Cabinet Mandatory Code of Conduct: SME Commercial Leasing Principles during COVID-19' (the Code). The purpose of the Code is to impose 'a set of good faith leasing principles for application to commercial tenancies' between landlords and eligible tenants (ie those who are eligible businesses under the Federal Government's JobKeeper program). The 'Retail and Other Commercial Leases (COVID-19) Regulation 2020' (the Regulations) gives effect to the Code in New South Wales. For the first time the Supreme Court of NSW has provided guidance on the implementation of the Code and the Regulations.
Hicks, Elizabeth, ‘Proportionality and Protracted Emergencies: Australia’s COVID-19 Restrictions on Repatriation Rights’ (2023) 45(1) Sydney Law Review (forthcoming) Abstract: The COVID-19 pandemic plunged governments into a world of ‘tragic choices’. With minimal forewarning and limited available infrastructure to enable freedoms in an alternative way, governments were required to restrict rights to meet the more urgent, ‘existential’ need to control threats to life. The nature of the emergency limited the role of courts in assessing challenges that raised rights and proportionality arguments against restrictions. In this article I argue that rights based proportionality reasoning can nonetheless retain a meaningful role in emergency settings. To do so, I compare how courts in Israel, New Zealand and elsewhere applied proportionality reasoning in public law challenges to restrictions on repatriation rights during the pandemic. I argue that judicial scrutiny of a restriction’s proportionality can intervene in ‘executive path dependency’ — the failure of executive emergency governance to invest in infrastructure over time to render restrictions less necessary. Such scrutiny can also provide for more principled systems of allocating scarce resources. I then demonstrate how various Australian mechanisms — constitutional, administrative and political — failed to supply the same protection in challenges to restrictions on repatriation rights. I trace this to the faith that the Australian system places in popular, majoritarian accountability mechanisms, whose operation is altered in emergency settings.
Hicks, Elizabeth, 'A Right to Come Home? Repatriation Rights & Policy in Australia' (Melbourne School of Government Policy Brief No 11, 15 January 2021) Abstract: This Policy Brief makes the following key points: (a) Australian citizens stranded abroad have brought a complaint against Australia before the United Nations Human Rights Committee. Although this avenue of recourse faces obstacles, it has raised questions about current Australian policy on border closures and repatriation. (b) A key part of Australia’s successful response to the COVID-19 pandemic has been its closure of international borders. The burden of that success has largely fallen on those affected by restrictions on international travel: citizens and residents stranded abroad; including citizens and residents whose compassionate or other circumstances have not been approved for an exemption by the Department of Home Affairs. (c) Australia’s quarantine program is largely administered by the states. Caps on the number of arrivals have been consistently lower than demand and notoriously volatile, reduced in response to repeated system failures in hotel quarantine programs. (d) In the absence of an express bill of rights, Australia largely relies on political mechanisms to hold the government to account, including with regard to the proportionality of COVID-19 related international border restrictions. Political mechanisms have failed to prioritise the right of citizens to return ahead of other political and economic concerns relevant to government business. Repatriation policy has also operated in a vacuum of political accountability: border closures have been the government’s most popular restriction.
Hill, Guzyal and John Garrick, ‘The Turbulent Effects of COVID-19 Policy on Australian Federalism and National Uniform Legislation’ (2023) 97(11) Australian Law Journal 842 Abstract: The COVID-19 pandemic prompted intergovernmental reforms across nine jurisdictions in Australia, with divergent state policies reviving debates about the core federal structure. This article probes the effects of the divergent COVID-19 policies on the federation and examines how state responses can, in future, strengthen federation by considering unique regional characteristics within a national context. Advocacy coalitions, such as public health, business and economic, have influenced policy responses, some seeking strict measures to contain the virus others prioritising economic recovery. This study identifies that the divergent and incremental post-pandemic legislation occurring within individual jurisdictions may lead to divisions that may not be beneficial for the next emergency. Rushing into expedient legislation that serves one jurisdiction may not produce optimal outcomes for that state or Australia as a whole, especially when shaped by strong local advocacy coalitions. Longer-term considerations and a more cohesive approach are necessary to ensure best outcomes for the states, territories and the Australian federation.
Hobbs, Harry and George Williams, ‘Australian Parliaments and the Pandemic’ (2023) 46(4) University of New South Wales Law Journal (forthcoming) Abstract: Parliaments play a crucial role during a pandemic in supporting their community to safely navigate the public health emergency. Parliaments must meet regularly, be provided with sufficient time to debate key measures and issues, exercise legislative oversight, and scrutinise government administration and policy. We examine whether Australian Parliaments met these standards during the covid-19 pandemic. We find that Australian Parliaments often performed poorly.
Howarth, David and Harriet Alexander, 'COVID collaboration and competition policy: Authorisation vs forbearance as crisis responses' (2020) 2(48) Australian Business Law Review 189-201 Abstract: The COVID-19 pandemic created immediate and novel challenges for health professionals. Not as immediate but almost as significant have been the extreme disruptions to supply chains, distribution arrangements and demand conditions that have forced many industries to consider collaborative responses. The Australian Competition and Consumer Commission (ACCC) and competition regulators overseas have been called on to balance short-term measures designed to ensure businesses remain viable and can supply goods and services efficiently and fairly, with long-term efforts to preserve competition. This article outlines the ACCC's approach of granting urgent interim authorisations and reviews the content and increasingly strict conditions on collaborative activity. It compares this approach to those adopted by competition regulators overseas before briefly addressing an alternative mechanism open to the ACCC in the (as yet untested) class exemption power. The article concludes by observing that the problems faced in the early adjustment period of the pandemic are likely to be very different to those that may emerge during post-pandemic economic contraction and recovery.
Howieson, Jill et al, ‘Balancing Convenience and Connection: Blending Law School Teaching and Learning During a Pandemic’ (2022) 32(1) Legal Education Review 209–226 Abstract: In February 2021, the Western Australian government placed the Perth metropolitan area into a ‘snap’ 5-day COVID-19 lockdown. This meant that the University of Western Australia (UWA) closed its campus, confining UWA Juris Doctor (JD) students to their homes. The lockdown coincided with the first week of a two-week intensive teaching block for the Law School’s Dispute Resolution unit, which as part of the School’s Legal Professionalism initiative, was usually conducted on a relatively quiet campus in the two weeks immediately preceding the beginning of first semester. The Legal Professionalism initiative provides the JD cohort with an immersive two-week experience of essential skills development, engagement with members of the profession, and opportunity to interact with their fellow students and Law School staff — on campus. Second year students undertake the unit Dispute Resolution, which in the past has shown to have a positive impact on the students’ sense of belonging and engagement with the Law School. However, in 2021, the first week of the unit coincided with the lockdown.
Hunkin, Elise and Peter Alsen, ‘Business as (Un)Usual: A Critical Policy and Legal Analysis of Australia’s COVID-19 “Free Childcare” Policy’ [2024] Children and Youth Services Review (advance article, published online 13 March 2024) Abstract: From 2020, the COVID-19 global pandemic has highlighted the crucial role of childcare in the lives of families and children, as well as its economic importance to nation states. In Australia, pandemic effects threatened the childcare sector’s viability, leading to a period of ‘fee free’ childcare policy. After decades of rigorous marketisation, this unprecedented ‘fee free’ period dispelled the state illusion that market models are unmovable and was robustly supported by families and various other stakeholders. Yet, ‘fee-free childcare’ lasted only three months and childcare was the first industry to be removed from Commonwealth business relief payments. Drawing on these recent happenings, we revisit the question of whether economic free market models of childcare are legally and ethically appropriate policy and law in democratic countries that are signatories of major human rights conventions. To do this, we present and apply an interdisciplinary critical policy and legal analytical lens to the Australian COVID-19 childcare policy context, including the legislative solutions presented, their implementation and implications. To conclude, we posit alternative childcare policy approaches that we argue would orient childcare services within stronger legal and ethical frameworks.
Hunter, Jill and Linda Pearson, ‘Supporting the Marginalized in Zoom Justice: Administrative Justice in an Australian Tribunal Context’ (2022) 17(2) The Journal of Comparative Law 313-330
Hunyor, Jonathon and Grace Gooley, ‘Pandemic Policing and the Preventive State’ (2023) 48(4) Alternative Law Journal 281–287 Abstract: We analyse the ‘law and order’ response to the COVID-19 pandemic in New South Wales and suggest that pandemic policing was just one example of the reflexive reach by governments for a punitive response to a social challenge. The pandemic response followed a trend toward securitisation, criminalisation and pre-emption of risk. This trend is also evident in a range of other laws and policing practices – the STMP, bail compliance checks, consorting laws and protest policing. We argue these are policy choices that are increasingly common in what has been described as the ‘preventive state’, where pre-emption of risk has become central. We suggest that, instead, the pandemic response should have focused on the needs of community and capacity building. This lesson must be applied to address the cascading physical and economic impacts of climate change.
Ignovska, Elena, ‘Human Rights and Bioethics During the Covid-19 Pandemic: The International Legal Match Djokovic v. Australia’ in Čović, Ana and Oliver Nikolić (eds), Pravni i Društveni Aspekti Vakcinacije Tokom Pandemije Kovida 19 / Legal And Social Aspects Of Vaccination During The Covid-19 Pandemic (Institute of Comparative Law, 2022) 71-86 *[OPEN ACCESS BOOK]* Abstract: The (in)glorious case of Novak Djokovic posed serious questions to the way societies were dealing with the pandemics, the crucial being: could the right to make informed decisions about one’s body and announce them endanger the public health through the spread of the anti-vaccination idea and not the infectious disease per se? Legal and ethical issues at stake are observed through the prism of: private life (related to the bioethical concept of individual autonomy) and public health (related to the bioethical concepts of beneficence and non-maleficence). However, the author concludes that irrelevant of the assessment of these two, if personal views about own choices are expressed publicly and, as a result, a person is refrained from enjoyment of some human rights, then the legal certainty and the freedom of thought and expression are affected too.
Jackson, Kym, 'Law in the time of COVID-19: Changes in succession and probate practice' (2020) 6(42) Bulletin (Law Society of South Australia) 16-17 Abstract: Before the earliest most tentative warnings had sounded in relation to the COVID-19 pandemic, I had taken the pre-emptive precaution of moving to a regional area with my family. This proved to be sound and - at a personal level at least - the worst consequences of the virus were avoided. But complete avoidance was to remain elusive: legal services have been affected (though certainly not as much as some other businesses), as well as the way we deliver those services.
Jane, Alex and Jeannie Marie Paterson, 'Frustratingly unclear? The interplay between common law, statute and the ACL in assessing consumer rights in a time of crisis' (2020) 2(48) Australian Business Law Review 169-179 Abstract: The spread of COVID-19 and subsequent government regulation have substantially impacted service-providing industries. State and federal regulations concerning social gatherings and travel have, in many instances, rendered performance of contracts illegal, economically unworkable or futile. This article considers the remedies available to consumers for service contracts affected by the COVID-19 crisis, with a particular focus on the response of the airlines, and the commonly offered option of credit vouchers. In these unprecedented circumstances, it examines the complex interaction of contract law, including the doctrine of frustration and accompanying statutory incursions on remedy, and consumer rights under the Australian Consumer Law. The article calls for a consistent approach by service providers and the Australian Competition and Consumer Commission that gives consumers a consistent and fair remedy, without the need to resort to the labyrinthine interplay of common law and statute.
Jebeile, Maged, 'Legislative response to COVID-19 applying to property transactions in New South Wales' (2020) 1/2(35) Australian Property Law Bulletin 19-22 Abstract: In what can only be described as unprecedented times, both federal and state governments seek to prepare for the impact of the COVID-19 coronavirus outbreak. The 'COVID-19 Legislation Amendment (Emergency Measures) Bill 2020' (NSW) was passed by both houses of NSW Parliament and received assent on 25 March 2020. Institutions such as NSW Land Registry Services (NSW LRS), NSW Office of the Registrar General (ORG) and the Australian Registrars National Electronic Conveyancing Council (ARNECC) have released statements setting out some guidance on conveyancing practices in response to increased social distancing measures put in place by the federal government. The federal Treasurer has announced changes to Australia's foreign investment review framework. This article sets out an outline of the legislative response to COVID-19 and new conveyancing practices applying to property transactions in New South Wales.
Jebeile, Maged, 'National response to COVID-19: Business Loan Relief Packages and Code of Conduct for commercial leases' (2020) 3(35) Australian Property Law Bulletin 42-45 Abstract: On 30 March 2020 the Australian Competition & Consumer Commission (ACCC) granted interim approval for the Australian Banking Association and banks to co-operate to offer COVID-19 affected Business Loan Relief Packages (including Landlords). On 7 April 2020, the National Cabinet approved a mandatory Code of Conduct (
Jefferies, Katherine, ‘Can Employers Mandate Their Employees Receive the COVID-19 Vaccine?’ (2022) 47(2) Alternative Law Journal 112–117 Abstract: This article considers the legality of employers mandating the COVID-19 vaccination in Australia. A current and pertinent topic of debate, the author explores the multiple avenues an employer may have in order to make the COVID-19 vaccine compulsory and makes comparison to other regularly accepted vaccinations such as the influenza immunisation.
Jefferies, Regina and Jane McAdam, ‘Locked in: Australia’s COVID-19 Border Closures and the Right to Leave’ (2023) 40(1) The Australian Year Book of International Law Online 185–231 Abstract: In March 2020, Australia became one of a handful of democratic states worldwide to adopt a blanket prohibition on the right of citizens to leave its territory, whether temporarily or permanently, in response to the COVID-19 pandemic. The International Health Regulations, which bind all members of the World Health Organization (‘WHO’), including Australia, provide an international legal framework to guide the public health response to the international spread of disease in a manner which respects human rights and fundamental freedoms. The right to freedom of movement in international human rights law is enshrined in the International Covenant on Civil and Political Rights (‘ICCPR’), which Australia ratified in 1990. Although states can place restrictions on freedom of movement to protect public health, they must be appropriate to achieve their protective function, the least intrusive instrument which might achieve the desired result, and proportionate to the interest to be protected. This article argues that in adopting sweeping restrictions on outbound travel, Australia re-purposed aspects of its migration control regime—ordinarily employed to externalise its international border and prevent people from entering the country—in order to prevent Australian citizens and permanent residents from leaving Australia. The outbound travel restrictions further bypassed an analysis of the intrusiveness and proportionality of the measures themselves, and shifted the burden onto individuals to request an exemption where the regulation of exit proved overly intrusive or disproportionate in their particular circumstances. In examining parliamentary transcripts, press statements by government officials, and recently revealed data regarding outbound travel exemptions, this article raises serious questions regarding the legality of the restrictions over time and their implementation in light of international law.
Jefferies, Regina, Jane McAdam and Sangeetha Pillai, 'Can we still call Australia home? the right to return and the legality of Australia’s COVID-19 travel restrictions' (2022) () Australian Journal of Human Rights (Advance article, published online 24 January 2022) Abstract: In the two years since Australia logged its first COVID-19 case and sealed its borders, thousands of citizens and permanent residents were locked out. Despite having a formal right to return, their ability to come home was hampered by a ‘one size fits all’ approach to hotel quarantine, travel caps linked to state/territory capacity, and a lack of federal facilities. This article examines the legality of Australia’s entry controls in light of international and domestic law. It documents the evolution of Australia’s response from the initial outbreak in China to the 2021 Delta outbreak in India, analysing the (limited) publicly available information as to the rationale for the restrictions. It examines the right to return in Australian domestic law, including whether citizens have a constitutionally protected right of entry. It also analyses the right to enter under international law, evaluating whether Australia’s settings constitute an arbitrary restriction of that right—especially since the drafters of the International Covenant on Civil and Political Rights thought it ‘inconceivable’ that a government would prevent citizens from returning for public health reasons.
Jones, Nicky, 'Law and the International Community: Looking Into the (Post-COVID-19) Future' (Conference Paper, Proceedings of the 3rd International Conference on Indonesian Legal Studies, ICILS 2020, 1 July 2020, Semarang, Indonesia, 11 January 2021) Abstract: This article aims to discuss the global legal challenges in the post-COVID 19. One of the most visible challenges is the human rights challenge created by the COVID-19 restrictions has been the focus of serious debate in Australia. In the state of Queensland, legislation enacted on 18 March 2020 empowers the Chief Health Officer ('CHO') and other emergency officers to implement social distancing measures, including arranging mass gatherings, isolating or quarantining people suspected or known to have been exposed to COVID -19. These restrictions affect movement and gatherings across communities in contexts such as schools, higher education, hospital, court proceedings, family gatherings, sporting and community events, public entertainment, tourism, travel and vacations. There are many reasons why governments limit the human rights of its citizens. The challenge for society and government is to ensure that any restrictions on human rights are reasonable and justifiable.
'Justice system responds to COVID-19 crisis' (2020) 3(42) Bulletin (Law Society of South Australia) 26 Abstract: The COVID-19 pandemic has created unprecedented challenges for all industries, and the legal industry is no exception.
Kaye, Stuart, 'Port access and assistance to cruise ships during the COVID-19 pandemic' (2020) 6(94) Australian Law Journal 420-426 Abstract: One matter that dominated headlines internationally and in Australia at the start of the COVID-19 pandemic was the situation of cruise ships and access to ports. Media coverage of large ships at sea, or in port under quarantine, was widespread, and the fates of these ships meant their names, such as Ruby Princess, Diamond Princess, and Westerdam, became common knowledge. This article considers the applicable law dealing with entry of ships into Australian ports and quarantine restrictions, as well as the circumstances wherein they can remain or be expelled, and what obligations exist to provide assistance. :
Kemp, Katharine and Graham Greenleaf, ‘COVID Digital Surveillance: Common Legislative Protections for Proximity Apps, Attendance Tracking, and Status Certificates (Part I) (Presentation Slides)’ (UN Special Rapporteur on the Right to Privacy Session: ‘COVID-19 and Privacy in Asia, Australasia and Europe’ (Presentation), 23 June 2021) Abstract: This presentation to the UN Special Rapporteur’s conference on the Right to Privacy Session: ‘COVID-19 and Privacy in Asia, Australasia and Europe’ was given on 23 June 2021. Katharine Kemp presented this first part, and Graham Greenleaf presented a second part at https://ssrn.com/abstract=3875920.Three forms of COVID data surveillance are considered: (1) Proximity Tracking – Typically via Bluetooth signal; Tracks proximity to another person (device), not location.(2) Attendance Tracking – Typically via QR Codes; Tracks attendance and time at required venues; Sporadic location tracking, not continuous. (3) COVID Status Certification – . Can be electronic (app) and/or paper; Records vaccination history and/or COVID test history; Aka immunity / vaccine passports / certificates or ‘Green Certificates’.The data collected by each of the 3 forms of surveillance may be either:• Distributed on user devices – for example: Apple/Google Bluetooth proximity app; QR Codes at venues that only update ‘digital diaries’; COVID status data that is static until user chooses to update (also paper copies).• Stored centrally – for example: Australia’s COVIDSafe Bluetooth proximity app; All Australian State/Territory QR Code systems; COVID status apps that always update from central database .Our argument (in the second part) is that legislative protections based on common principles are needed for all types of COVID surveillance, including those that are compulsory, and involve centralised storage of personal data. Australia is an example of a country where compulsion or centralisation cannot effectively be challenged in court as a breach of fundamental rights.This part focuses on privacy risks of these three types of COVID surveillance, with illustrations from their use in Australia.
Kessels, Ron, 'COVID-19 impacts on immigration law and policy' (2020) (68) LSJ: Law Society of NSW Journal 72-73 Abstract: Australia's post-COVID fortunes hinge on rapid and sustained economic growth. That will simply not be possible without employers being able to sponsor foreign workers from overseas. But COVID-19 has shut our borders and created an army of unemployed Australians, making people movement much more difficult for employers and a political issue for government. So, what will COVID-19 mean for our immigration laws and policies, and the ability of employers to access the skilled people they will need?
Keyes, John Mark, ‘Judicial Review of COVID-19 Legislation: How Have the Courts Performed?’ (2023) 30(2) Australian Journal of Administrative Law 115 [pre-published version available on SSRN] Abstract: This paper considers judicial responses to challenges to legislative action taken to address the COVID-19 pandemic, how these responses were affected by emergency conditions and the implications for judicial review generally and its role in society. The paper begins by outlining the types of legislative measures taken and then considers in very general terms the rule of law and judicial review, including hurdles to judicial review arising in many of the challenges to COVID-19 legislation, which in turn go some distance towards explaining the failure of most challenges. The paper looks next at the principal grounds advanced for challenging COVID-19 legislation in terms of the matters it addressed and the bases for the challenges. The bases for challenge are grouped under three headings: 1. constitutional law limits on law-making authority, 2. administrative law limits on delegated authority, 3. fundamental human rights and rights of Indigenous peoples. This survey is by no means exhaustive. Its aim is to add to the growing body of commentary on emergency legislation by focusing on a limited number of cases, mainly from Canada with a few from the UK, New Zealand and Australia.
Khanderia, Saloni and Sagi Peari, 'Party autonomy in the choice of law under Indian and Australian private international law: Some reciprocal lessons' (2020) 4(46) Commonwealth Law Bulletin 711-740 Abstract: The outbreak of the COVID-19 pandemic will affect the performance of several contracts and is likely to increase the number of disputes before the courts. In agreements with a foreign element, the adjudication of the rights and liabilities will depend on the applicable law. Most legal systems have embraced the doctrine of party autonomy and, accordingly, permit the parties to expressly select the law to govern the disputes that arise from international contracts. India and Australia are no exception to this trend. In general, the courts in both the commonwealth countries have reported having been influenced by judicial practices of one another to develop their own law. Despite their common law roots, the interpretations attached to the doctrine of party autonomy in the choice of law have varied in some respects in these countries. The paper analyses the judicial trends on the subject and demonstrates the role that party autonomy will play in resolving international disputes where the performance has been affected by the eventualities such as the COVID-19 pandemic in India and Australia. The paper delves into the manner in which the courts in India and Australia may offer reciprocal lessons to each another to revolutionise to interpret the doctrine of party autonomy in the choice of law.
Kirby, Michael, 'Incarceration, Injustice and COVID-19' (2021) 2(46) Alternative Law Journal 93 Abstract: Extract: The unexpected catastrophe of COVID-19 that struck our society has special implications for prisoners today. It has meant a special impact on people housed in custodial institutions, including on remand or in immigration detention. Because COVID-19 is a disease, especially prone to cause death and disability in older persons who become infected, strategies involving social distancing, isolation and reduction of contact have been recommended. However, the close proximity people are forced into when in custodial detention has resulted in a heightened risk of infection among prisoners and detainees.
Kreltszheim, David, 'Creating deeds in electronic form: Why we should not be deterred by the ghosts of the past' (2020) () Australian Banking and Finance Law Bulletin 68-74 Abstract: The electronic transactions laws have been on the statute books in Australia for 20 years. But 5 years ago, a highly influential text advanced a powerful argument that deeds cannot be entered into by electronic communications. And last year a Supreme Court judge opined in passing that had it been necessary to decide the question, the judge would have concluded that it remains a common law requirement of a deed that it be written on paper. Why is it so? This article considers how we got to where we are. It suggests that the electronic transactions laws can be used to facilitate parties' entry into deeds by means of electronic communications. It concludes, however, that given the experience of the last 20 years the best course would be for there to be further legislative intervention, ideally on a national basis. It suggests that the temporary COVID-19-driven reforms relating to deeds could be extended from time to time until the further legislative intervention happens.
Kwan, Martin, ‘Remote vs. In-Person Testimony in Hong Kong Courts’ [2021] Northwestern University Law Review of Note (20 June 2021) Abstract: Should the pursuit of effective scrutiny of witnesses override public health considerations and the witness’s right to health? This article explores the debate on whether a witness can choose to give evidence via video-conferencing facilities (VCF) during the COVID-19 pandemic. It explores the practices adopted in a number of jurisdictions, such as the UK, Hong Kong, Australia and Canada.
Lachsz, Andreea and Monique Hurley, 'Why practices that could be torture or cruel, inhuman and degrading treatment should never have formed part of the public health response to the COVID-19 pandemic in prisons' (2021) 1(33) Current Issues in Criminal Justice 54-68 Abstract: In this article, we consider the use of restrictive practices in Australian prisons in response to the COVID-19 pandemic, focusing on solitary confinement. We explore the health and human rights implications for people subjected to the practice. An overview is provided of the expansion of powers that have increased the risk of people being detained in conditions that amount to solitary confinement during the pandemic. Australian governments’ use of quarantine and lockdowns as tools to address the risks posed by COVID-19 to people in prison is examined and critiqued. To safeguard against the normalisation of these practices, the use of solitary confinement in prisons should be prohibited in law, and any exceptional circumstances in which a person may be separated from others in prison should be clearly defined, with appropriate safeguards. There also needs to be immediate and effective oversight of prisons in compliance with the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
Lambropoulos, Dr Victoria, 'Coronavirus, Jobkeeper and Stand Down under the Fair Work Act 2009 (CTH): A Review of the Law' (2020) 2(48) Australian Business Law Review 104-115 Abstract: The Coronavirus (COVID-19) employment law amendments are a peculiar invention arising out of the unprecedented economic times which we are facing as a nation. This article looks at the legislative responses to the Coronavirus pandemic in the area of employment law. It sets out the pre-existing law in relation to stand down and redundancy. It then examines it in the light of the recent amendments to the Fair Work Act 2009 (Cth) contained in the new Part 6-4C. A number of the new powers given to employers have been curbed by the requirement that they be exercised reasonably. It is unclear how reasonableness will be interpreted in these unique times. The article concludes that the amendments were necessary to address the inflexibility of the stand down framework. We now have something that looks like stand down, but is not stand down, as we have known it.
Langford, Rosemary Teele, 'Insolvent Trading, Charitable Companies and COVID-19' (2020) 6(37) (Company and Securities Law Journal 435-439 Abstract: In light of the challenges caused by by COVID-19 for all companies, this article analyses the interaction between temporary insolvent trading relief and directors' duties, with particular focus on directors of Australian charitable companies.
Leadbeter, Paul, 'COVID-19 Generated Changes to Planning and Development Controls in South Australia' (2021) (23) Local Government Law Journal 84 Abstract: South Australia is presently in the throes of major changes to its regulatory system governing land use, development of land and the development of planning policy against which development assessment decisions are to be made. Eventually the planning and development control system established under the Development Act 1993 (SA) will be replaced by a new system implemented by the Planning, Development and Infrastructure Act 2016 (SA) (the new Act).
Leadbeter, Paul, 'South Australia: COVID-19 generated changes to planning and development controls in South Australia' (2020) 2(23) Local Government Law Journal 87-91 Abstract: South Australia is presently in the throes of major changes to its regulatory system governing land use, development of land and the development of planning policy against which development assessment decisions are to be made. Eventually the planning and development control system established under the ‘Development Act 1993’ (SA) will be replaced by a new system implemented by the ‘Planning, Development and Infrastructure Act 2016’ (SA) (the new Act). The state is in a transitional phase. The provisions of the new legislation which create the State’s planning authority, the State Planning Commission, have been implemented and the Commission appointed. Local councils have all appointed their Council Assessment Panels as required by the new Act and development decisions under the ‘Development Act 1993’ (SA) assessment procedures are being made by the new bodies. If the implementation of a major new planning system with new legislation and planning policy was not already causing some issues, the advent of the COVID-19 pandemic in South Australia has brought additional complexities including amendments to the regulatory system governing development controls.
Lee, Murray, 'Policing the Pedal Rebels: A Case Study of Environmental Activism Under COVID-19' (2021) 2(10) International Journal for Crime, Justice and Social Democracy 156-168 Abstract: Australia, along with nation-states internationally, has entered a new phase of environmentally focused activism, with globalised, coordinated and social media–enabled environmental social movements seeking to address human-induced climate change and related issues such as the mass extinction of species and land clearing. Some environmental protest groups such as Extinction Rebellion (XR) have attracted significant political, media and popular commentary for their sometimes theatrical and disruptive forms of nonviolent protest and civil disobedience. Drawing on green and cultural criminology, this article constitutes an autoethnographic account of environmental protest during the final stages of the initial COVID-19 lockdown in NSW, Australia. It takes as a case study a small protest by an XR subgroup called the Pedal Rebels. The article explores the policing of environmental protest from an activist standpoint, highlighting the extraordinary police resources and powers mobilised to regulate a small peaceful group of ‘socially distanced’ protesters operating within the existing public health orders. It places an autoethnographic description of this protest in the context of policing practice and green and cultural criminology. Additionally, it outlines the way in which such policing is emboldened by changes to laws affecting environmental protest, making activism an increasingly risky activity.
Legg, Michael, ‘Court Judgments “on the Papers”’ (2022) 10(4) Journal of Civil Litigation and Practice 167–168 Abstract: The COVID-19 pandemic required alterations to court procedures to comply with health orders. By the end of March 2020, few Australian courts were hearing many matters face-to-face. Hearings were conducted via audio visual link (AVL) or, in some instances, over the telephone or ‘on the papers’. However, many of these alternatives to a face-to-face hearing existed pre-pandemic, including resolving matters on the papers as a way to promote the efficient resolution of the court’s business. The source and scope of the courts’ power to determine a matter on the papers was the subject of two Victorian Court of Appeal decisions: ‘Coffey v O’Halloran’ and ‘Carroll v Goff’. Resolving matters on the papers is an established way in which a court may proceed, provided it is in-keeping with procedural fairness. The above Victorian Court of Appeal decisions provide helpful guidance for trial courts needing to navigate this area – both during pandemic times, and in seeking to promote justice in an efficient manner in normal times.
Legg, Michael et al, ‘Open Justice during a Pandemic: The Role and Risks of Remote Hearings’ (2022) 33(2) Public Law Review 143–162 Abstract: Open justice is a fundamental principle of the Australian justice system. The public administering of justice allows members of the community to be present and personally observe hearings. However, with the advent of the COVID-19 pandemic, stay-at-home orders, social distancing, and closure of court houses meant that judges could not sit in public as they traditionally had. To continue operating, courts turned to technology to conduct hearings remotely. This article examines this experience and considers the consequences of remote hearing technology as a substitute for traditional in-person attendance, including an analysis of both the role and risks that remote hearings can have for open justice.
Legg, Michael and Anthony Song, 'Commercial Litigation and COVID-19: The role and limits of technology' (2020) 2(48) Australian Business Law Review 159-168 Abstract: The COVID-19 pandemic has changed the way society functions. As social distancing measures were enforced across the world, courtrooms and registries, among other public services, were forced to shut their doors to the public to ensure the safety of staff, practitioners and the wider community. However, Australian courts have been able to use technology to deliver the essential service of justice to society remotely, including fully shifting to electronic filing systems and conducting entire hearings online through various audio-visual link platforms. This article examines the experiences of Australian commercial courts using readily available technologies to respond to the crisis. This in turn raises essential questions, such as how can open justice and procedural fairness be maintained when courtrooms close and trials move online? How do we ensure public trust and confidence in the court system and guarantee the essential human element of judicial institutions is not degraded? And how do we address delay and ensure technology is accessible to all? The answers to these questions will be essential to the future of commercial litigation.
Lelliott, Joseph, Andreas Schloenhardt and Ruby Ioannou, 'Pandemics, Punishment, and Public Health: COVID-19 and Criminal Law in Australia' (2021) 1(44) UNSW Law Journal 167-196 Abstract: This article examines the scope, application, and implications of criminal offences relating to the containment of COVID-19 in Australia. Drawing in part on existing research concerning criminalisation of HIV transmission, the article highlights actual and potential discriminatory consequences of the criminal justice approach to COVID-19, as well as consequences for persons’ right to health. The article concludes that criminal offences relating to the spread of the virus must be precisely and narrowly circumscribed to be both fair and meaningful. Criminal prosecution and punishment can only be justified in a very small number of situations. Broad use of coercive and punitive powers, together with stigmatising rhetoric, may well be counterproductive to public health goals.
Leonard, Peter, 'Novel Coronavirus Spawns Novel Law-Making in Australia' (2020) June() Computers and Law 46-48 Abstract: Discusses the lessons that can be learnt from Australia’s approach to drafting the Privacy Amendment (Public Health Contact Information) Bill 2020 to regulate its COVID-19 tracing applications software and aims to nurture its citizens’ digital trust.
Levin, Anthony and Trish Kashyap, 'Law enforcement and police powers in NSW during COVID-19' (2020) 4(32) Judicial Officers Bulletin 29-33 Abstract: With the onset of the COVID-19 pandemic in March, the Commonwealth and NSW Parliaments have introduced temporary laws1 to enable the management of public health and safety and prevent the spread of the novel coronavirus. This article provides an overview of these laws with a focus on the exercise of discretion under novel or temporary police powers.
Lim, Darren J. and Nathan Attrill, 'Australian debate of the China question: the COVID-19 case' (2021) () Australian Journal of International Affairs (pre-published article, published 8 June 2021) Abstract: Debate within Australia regarding the bilateral relationship with China is complex, contentious and often lacks clarity. Informed by basic international relations theory, we identify two dividing lines within this debate. First, whether understanding China’s behaviour is most effectively done through a unitary actor framework, or whether it is essential to look inside the ‘black box’ of the Chinese party-state. Second, whether one is more concerned about the ‘Thucydides trap’ or ‘Munich’—that is, are the consequences of an overreaction or an underreaction more concerning when interpreting China’s intentions and responding to perceived threats. These dividing lines generate four ideal-type policy viewpoints that we label Balancers, Hedgers, Engagers and Reformers, and apply in the Australian context. We then overlay our framework onto the public debate in Australia, selecting a specific bounded case study: commentary and analysis concerning China’s behaviour throughout the COVID-19 pandemic of 2020, in particular responding to Australia’s call for an international inquiry. Our objective is to progress an often circular debate by offering an accessible frame that clarifies and synthesises fundamental disagreements.
Lodders, Adam and Jeannie Marie Paterson,, 'Scrutinising COVIDSafe: Frameworks for evaluating digital contact tracing technologies' (2020) 3(45) Alternative Law Journal 153-161 Abstract: Digital technologies are being used to combat the coronavirus disease 2019 (COVID-19) pandemic through a variety of methods, including monitoring compliance with quarantine and contact tracing. These uses of technology are said to promote public health outcomes but risk undermining rights to privacy. In this article we focus on the use of digital technologies for contact tracing, such as the COVIDSafe app used in Australia. We explore the kind of framework that might be used for evaluating the design, deployment and governance of such technologies to ensure they operate in a manner that is proportionate to the ends to be achieved. We conclude that, in addition to issues of privacy, any use of contact tracing technology should address important considerations of efficacy, equity and accountability.
Longley, Nick, 'COVID-19 and the concept of damage for construction insurance claims' (2020) 1(36) Australian Insurance Law Bulletin 11-14 Abstract: This article considers to what extent an outbreak of COVID-19 on a construction site will impact on any construction insurance contracts. It will specifically consider to what extent the presence of COVID-19 on site can be considered damage for the purposes of the material damage section of a contract works insurance contract.
Longman, Craig, 'Criminal law: Could the 'great writ' lie to release prisoners at risk from COVID-19?' (2020) (66) LSJ: Law Society of NSW Journal 74-75 Abstract: There is an imminent human disaster threatening Australian prisons, and the disproportionately high number of First Nation prisoners who are incarcerated within. Across the world, governments are recognising the risk to prisoners from the COVID-19 virus. Commentators have noted the 'notorious' status of prisons as incubators for infections, and the World Health Organization foresees the possibility that 'every prisoner' will be contaminated with COVID-19 'very quickly' (Thalia Anthony, 'Coronavirus is a ticking time bomb for the Australian Prison System', 'The Guardian Australia Edition' (online), 26 March 2020); Hannah Summers, '"Everyone will be contaminated": prisons face strict coronavirus controls', 'The Guardian Australia Edition' (online), 24 March 2020).
Marcus, David, 'Digital resilience in the age of a global pandemic: How can privacy assist in risk mitigation?' (2020) 1/2(17) Privacy Law Bulletin 2-5 Abstract: The global Coronavirus disease 2019 (COVID-19) pandemic is creating unprecedented disruption to all industries globally through its direct and indirect impact on health and wellbeing, the needs of citizens, the way we work, and the needs of our clients. It is estimated that over the course of a year, the pandemic could impact the Australian economy alone by a reduction of AUD34.2 billion or an approximately 1.3% decrease in Gross Domestic Product (GDP). The challenges we face in addressing the risks of the pandemic are well-documented. Perhaps less documented however are the role of privacy frameworks in assisting with such statutory and day-to-day risk mitigation efforts, as well as the fact that we cannot avoid compliance with the 'Privacy Act 1988' (Cth) and other similar privacy frameworks including the 'General Data Protection Regulation' (GDPR).
Marcus, Kate, ‘Risk Watch: Social Distancing: Not Just for COVID: Contact between the Bench and the Legal Profession’ (2022) 44(2) Bulletin (Law Society of South Australia) 36–37 Abstract: The South Australian legal fraternity is fortunate to maintain close-knit professional relationships. However, how those relationships are perceived by clients must always be considered. Even more important is the relationship between members of the independent Bar and the judiciary, particularly as it is quite common for the judiciary to be appointed from senior counsel. All judicial officers, including many registrars, tribunal members, senior judges etc were all once part of the profession at large with many having professional ties spanning decades. Bias, whether apprehended or actual, has the potential to lead to client dissatisfaction at best and costs orders or disciplinary redress at worst. Accordingly, professional relationships should remain as such or be disclosed either with consent or the parties recusing themselves.
Markey, Ray, 'The impact of the COVID-19 virus on industrial relations' (2020) (85) Journal of Australian Political Economy 147 Abstract: The social and economic impact of COVID-19 has extended to industrial relations as a result of major changes to work and the labour market. Immediately after the lockdown began, 15% of the Australian workforce was laid off. Job losses have been unevenly spread, with hospitality experiencing a 33.4% reduction, and arts and recreation services 27% (ABS 2020a). Those aged under 30 lost jobs at a particularly high rate. However, the official unemployment rate understates loss of work, because of the JobKeeper wage subsidy, reduced labour force participation and the restrictive ABS definition of unemployment: actively looking for work and less than one hour's work per week. The Reserve Bank estimates that total hours worked fell by 20%, while Treasury estimated unemployment at close to 15% by late May, 2020 (Black 2020a).
Markham, Francis and Diane Smith, 'Indigenous Australians and the COVID 19 crisis: Perspectives on public policy' (ANU Centre for Aboriginal Economic Policy Research, CAEPR Topical Issue No 1/2020, 20 2020) Abstract: First Nations people are being, and will continue to be, affected by this crisis in ways that differ from the effects on other Australians. The pandemic risks exacerbating deep-seated health, social and economic inequities in Australian society, especially the long-standing inequalities between First Nations people and other Australians. The pandemic has also made plain the shortcomings of the relationships between Indigenous people and Australian governments, revealing a governance gap that is difficult to ignore. But despite these inimical conditions, the disruption of the COVID-19 crisis is opening up new opportunities for public policy change. And many First Nation organisations and communities are leading the way. Unprecedented new government expenditure creates space for policy innovation, as the boundaries of what is possible become blurred. The pandemic is a time of stark risks, but it is also a time when informed policy bravery could create new foundations for a better future. Contributions to this Topical Issue focus on employment impacts, social security reforms, Indigenous governance, violence against women, the Indigenous health workforce, school closures, energy security in remote communities, and a proposal for an Indigenous reconstruction agency.
Martin, Chris, 'A brief history of Australian Residential Tenancies Law Reform: From the Nineteenth Century to Covid-19' (2020) 5(33) Parity 4-6 Abstract: Australia is currently going through a period of unusual activity in residential tenancies law reform. New South Wales, Victoria and the Australian Capital Territory (ACT) have recently concluded reviews and amended their legislation, and Queensland, Western Australia and the Northern Territory are currently in the midst of reviews. South Australia and Tasmania reviewed and amended their respective Acts a little before the current wave of reform, both in 2013. The federal government has also indicated its interest, nominating 'tenancy reform that encourages security of tenure in the private rental market' as a 'national housing priority area' under the current 'National Housing and Homelessness Agreement' (Schedule A2). And breaking over the current wave of law reform are the Covid-19 emergency amendments, implementing eviction moratoriums and temporary regulations around rents.
Martin, Chris, 'Australia’s incipient eviction crisis: No going back' (2021) 2(46) Alternative Law Journal 134-140 Abstract: Before the COVID-19 pandemic, Australia was facing an incipient eviction crisis, the gravity of which had been obscured by inadequate data and the gradual mounting of systemic problems of unaffordability and insecurity. This article reviews the legal framework around tenancies and evictions and the sparse data it produces. Tribunal data obtained by the author shows that Australia’s two largest jurisdictions had, prior to the pandemic, a termination application rate somewhat more than half that of the US ‘crisis’ rate. The article concludes with directions for further research and reforms to address evictions in an enduring way, beyond the COVID-19 pandemic.
Martin, Chris, 'Australian Residential Tenancies Law in the COVID-19 Pandemic: Considerations of Housing and Property Rights' (2021) 1(44) UNSW Law Journal 197 Abstract: In response to the COVID-19 pandemic, Australian states and territories implemented eviction moratoriums and measures to vary rent obligations – a remarkable response for jurisdictions that have, for decades, regulated residential landlord-tenant relations on a model of mild consumer protection, market rents and ready termination. This article examines the COVID-19 emergency measures and their implications for tenants’ housing rights, and landlords’ property rights. After reviewing the Australian rental housing system’s structure and legislative framework, the article examines in detail the COVID-19 emergency measures regarding evictions and rents in each state and territory. These vary in form and content, mostly on a pattern of additional protection from eviction for a core ‘hardship’ group, and variation of rents by individual negotiation. The article considers problems in the emergency measures, and points on which enduring reforms may be built, as well as critically appraising the argument that property rights protections limit the scope for reform.
Martin, Greg, ‘A Law unto Themselves: On the Relatively Autonomous Operation of Protest Policing during the COVID-19 Pandemic’ (2022) 5(1–2) Justice, Power and Resistance 28–45 Abstract: A central argument of this article is that the exercise of police power in respect of protests is relatively autonomous of judicial pronouncements affirming or upholding rights of free speech and peaceful public assembly. Using mostly Australian examples, but also drawing on UK material and some American references, the article shows how protests have gone ahead regardless of prohibitions on mass gatherings during the COVID-19 pandemic. In New South Wales, courts have sometimes allowed protests to proceed when public health experts have assessed the risk to community transmission of coronavirus to be sufficiently low. Notwithstanding that, as they did prior to the pandemic, police have moved to prevent protests and repress protestors. Accordingly, the article takes issue with the ‘negotiated management’ model of protest policing, which perpetuates a fiction of police-protestor cooperation. Indeed, protest policing has often been conflictual and heavy-handed, even militaristic, which, paradoxically, has sometimes led to potential breaches of COVID-19-safe protocols. The article concludes by highlighting analogies between the COVID-19 crisis and the ‘war on terror’ following 9/11, including the role played by courts in attempting to limit the concentration of executive power, government overreach, and intensification of police powers under a paradigm of security.
Martin, Greg, 'Protest, Policing and Law During COVID-19: On the Legality of Mass Gatherings in a Health Crisis' (2021) 4(46) Alternative Law Journal 275-281 Abstract: This article considers the legal status of protest rights in Australia during the COVID-19 public health crisis. It discusses jurisprudence of the New South Wales Supreme Court regarding the legality of mass gatherings for the purpose of protest during the COVID pandemic. Balancing protest rights with risks to community safety posed by possible coronavirus transmission at public assemblies, the Court has sometimes allowed and sometimes prohibited protests. The article critically examines the policing of protest during the pandemic and explores some of the implications of comparing emergency measures introduced during the COVID crisis with similar measures introduced in the wake of the 9/11 terror attacks.
Matheson, Sarah and Artemis Kirkinis, 'Compulsory licence and Crown use provisions in the Covid-19 pandemic—the Australian perspective' (2021) 6(16) Journal of Intellectual Property Law & Practice 484-497 Abstract: In the global COVID-19 pandemic, there has been considerable speculation that global pressures facing governments, including the need to guarantee the supply of a vaccine or treatments (when available) and medical equipment, could lead to the compulsory licence or Crown use (otherwise known as government authorization) provisions being invoked.However, to date, collaborative approaches have prevailed; there have been some unconventional approaches to intellectual property rights, and considerable efforts to repurpose existing technology that shows any promise of application in the present context.Despite a pandemic being the very type of emergency that could trigger the use of these coercive powers, it may be that patented technology can be accessed without the need to invoke them. Instead, the mere fact of their existence may encourage an otherwise reluctant patentee to reach a timely arrangement for access to patented technology or products. In this way, compulsory licence and Crown use provisions serve an important role as safeguards to ensure the appropriate balance between a patentee’s reward for its investment, and the need for access to patented technology during a public health crisis.
Mazerolle, Lorraine and Janet Ransley, 'Policing health regulations in democratic societies: A focus on COVID-19 challenges and opportunities in Australia' (2021) 3(45) International Journal of Comparative and Applied Criminal Justice 315-327 Abstract: Bayley stated just four short years ago that “… policing has become dramatically more complex in six ways: its tasks, public demands, strategies, technology, accountability and resources” (p. 164). The COVID-19 pandemic has clearly escalated these policing complexities creating a range of new responsibilities, tasks and strategies for police as well as raising new accountability questions. In this paper, we examine a number of new health regulations that are now commonplace for police to enforce including: restrictions on the number of people visiting private homes, maintaining physical distancing between people in public space, and mandated wearing of masks. We explore what these new tasks, public demands, and strategies mean for the future of policing in democratic societies. We conclude that the pandemic has created unprecedented access for police into the private lives of citizens creating what David H. Bayley would have seen as both as an opportunity and threat to civil society.
McAdam, Jane and Frances Voon, 'Submission 39: Inquiry into the Implications of the COVID-19 Pandemic for Australia’s Foreign Affairs, Defence and Trade' (UNSW Law Research Paper No 21-18, 29 January 2020) Abstract: As members of the Kaldor Centre for International Refugee Law at UNSW Sydney, Jane McAdam and Frances Voon provided this submission to the Inquiry into the implications of the COVID-19 pandemic for Australia’s foreign affairs, defence and trade. Their submission considers two issues relevant to the Inquiry’s terms of reference and the Centre’s expertise. The first is how States’ responses to refugees and people seeking asylum in the context of COVID-19 pose challenges to the international rules-based order, in Australia’s region and beyond. The second is the implications of COVID-19 for the Pacific, particularly the need to promote longer-term resilience through measures to address the impacts of climate change, such as enhancing mobility.
McBride, Nicholas, 'Ill Fares the Land: Has COVID-19 Killed the Principle of Legality?' (SSRN Scholarly Paper No ID 4023242, 01 January 2022) Abstract: This paper is part of a larger project, arguing that the COVID-19 pandemic has exposed public law as being unprincipled and ineffectual in virtually all common law jurisdictions. This paper focuses on the treatment of the 'principle of legality' in judicial review proceedings in England, Australia and New Zealand, seeking to challenge the lawfulness of various governmental actions to tackle the pandemic. While up until 2020, the principle of legality was employed to declare unlawful governmental actions in a number of very important cases - most notably, the UK Supreme Court's decision in Miller 2 - in cases involving challenges to the lawfulness of government attempts to deal with COVID-19, the principle of legality has been consistently sidelined and ignored, using various techniques described in this paper.
McCormick, Hamish, 'AFSA: Personal insolvency and the response to the COVID-19 crisis' (2020) 2(32) Australian Restructuring Insolvency & Turnaround Association Journal 45 Abstract: My last contribution to the ARITA Journal came just weeks after the devastating bushfires tore through large parts of the country. Thousands of Australians were affected, and the economic impacts of the disaster will likely linger for many years.
McCosker, Alexandra, 'Family law: parenting during a pandemic: Best interests of the child remain paramount' (2020) (66) LSJ: Law Society of NSW Journal 78-79 Abstract: Family law disputes have traditionally run the gauntlet of not only legal issues, but also the emotional and human elements that so often accompany such disputes. The COVID-19 pandemic has added an extra complication to the lives of many Australian families dealing with family law disputes. How are families to approach their family law issues during this time? The situation pertaining to the COVID-19 pandemic is constantly changing, and everyone living in Australia needs to ensure they are up-to-date with such changes as they arise. Given the evolving nature of the situation in New South Wales and the potential for significant or abrupt changes, this article is confined to providing an overview of the issues that may arise in family law matters during the COVID-19 pandemic and does not constitute legal advice.
McFarlane, Katherine, ‘Danger, Keep out! Trade Union Rights of Entry during the COVID-19 Pandemic’ (2023) 33(1) Labour and Industry 86–101 Abstract: The closures and restrictions imposed at workplaces around Australia in response to the COVID-19 pandemic have raised unprecedented issues for trade unions seeking to exercise rights of entry in accordance with Part 3–4 of the Fair Work Act 2009 (Cth). Section 491 requires that union officials seeking to exercise a statutory right of entry comply with any ‘reasonable request’ by an occupier about an occupational health and safety (OHS) requirement that applies to the premises. This had led to disputes about the appropriateness of requirements imposed by employers to mitigate the risk of COVID-19 infection and transmission. This paper will discuss three recent Fair Work Commission (FWC) decisions which consider the reasonableness of requests limiting entry to premises in this context. Although the cases had different outcomes, the FWC’s findings demonstrate how an employer’s OHS obligations relating to COVID-19 will be weighed against the objects of Part 3–4. Overall the FWC has taken a practical and nuanced approach to such disputes, and expected some cooperation between employers and unions. The limited scope of these decisions does, however, leave some questions relating to rights of entry during the pandemic unanswered.
McGaughey, Fiona, 'Australia’s Modern Slavery Act and COVID-19: a get out of jail free card?' (2021) 2(6) Journal of Modern Slavery 216-230 Abstract: The COVID-19 pandemic increased modern slavery risk around the world, including in the operations and supply chains of Australian businesses. This article thematically analyses a sample of available business statements under Australia’s Modern Slavery Act to assess how they engaged with modern slavery risks due to COVID-19. Overall, the statements acknowledged that COVID-19 had increased risks through rapidly altered supply chain profiles, urgent demand for items such as PPE, and yet there were widespread reports of reduced capacity to fully execute planned modern slavery risk assessment, training, and audit activities.
McHattan, Natasha, ''COVID-19' update: Government response to COVID-19 pandemic' (2020) 2(32) Australian Restructuring Insolvency & Turnaround Association Journal 6-12 Abstract: A summary of the key Government measures introduced in response to the economic and related impacts of coronavirus.
McHattan, Natasha, ''Obstacles, not roadblocks'' (2020) 2(32) Australian Restructuring Insolvency & Turnaround Association Journal 13-15 Abstract: The Australian court system, like other institutions, businesses, and organisations, has had to rapidly adapt to the challenges posed by the COVID-19 pandemic and the related social distancing measures which were imposed in Australia from March 2020.
McIntyre, Joe, Anna Olijnyk and Kieran Pender, 'Civil Courts and COVID-19: Challenges and Opportunities in Australia' (2020) 3(45) Alternative Law Journal 195-201 Abstract: This article provides an overview of the response of Australian courts to the COVID-19 crisis, and critically examines a number of structures and systemic issues that arise from the shift to the online deliver of justice. It places the current responses in the context of the emerging literature regarding online dispute resolution, and draws upon that literature to consider issues including open justice, symbolism and ‘court architecture’ in the digital space, technological limitations, access to justice and issues of systemic bias. It argues that by examining these issues, the present crisis will help map opportunities for future reform.
Mckeith, Sam, 'Corporate governance and COVID-19' (2021) 82() LSJ: Law Society of NSW Journal 36-39 Abstract: The COVID-19 pandemic has had an unprecedented impact on how life and work is done across Australia. It's also shaken up corporate governance, writes Sam McKeith.
McLaren, Helen Jaqueline et al, 'Covid-19 and Women’s Triple Burden: Vignettes from Sri Lanka, Malaysia, Vietnam and Australia' (2020) 5(9) Social Sciences 87 Abstract: During disease outbreaks, women endure additional burdens associated with paid and unpaid work, often without consideration or the alleviation of other life responsibilities. This paper draws on the concept of the triple burden in theorizing the gender divisions in productive and reproductive work and community activities in the context of disaster. Events that include famine, war, natural disaster or disease outbreak are all well documented as increasing women's vulnerability to a worsening of gendered burdens. In the case of the Covid-19 coronavirus pandemic, this is no different. Focussing on Sri Lanka, Malaysia, Vietnam and Australia, the four vignettes in this paper serve to highlight the intersections between Covid-19 and gendered burdens, particularly in frontline work, unpaid care work and community activities. While pre-disaster gender burdens are well established as strong, our analysis during the early months of the pandemic indicates that women’s burdens are escalating. We estimate that women will endure a worsening of their burdens until the pandemic is well under control, and for a long time after. Public policy and health efforts have not sufficiently acknowledged the issues concerned with the associations between gender and disease outbreaks.
McLeod, Glen, Chelsea White and Lea Hiltenkamp, 'COVID-19 and its impact on town planning law' (2020) 4(47) Brief 10-11 Abstract: The outbreak of coronavirus, or COVID-19, has significantly disrupted every facet of life. Planning law has not been immune. Landowners and developers may find themselves hard-pressed to meet deadlines for the substantial commencement of a development approval within the statutory two years1 or the implementation of a subdivision approval within the statutory period of three or four years2 (depending on the numbers of lots in the subdivision) and meet deadlines associated with construction and development. Are there options for parties to retain their approval when circumstances make it difficult to comply with the time limits? Since the submission of this article, further important changes were made to the planning law regime. Some of those changes build on the comments made in the below article. We have prepared a summary of those changes, which can be found.
McLeod, Matthew, 'Distancing From Accountability? Governments’ Use of Soft Law in the COVID-19 Pandemic' (2022) () Federal Law Review (advance article, published 22 February 2022) Abstract: This article analyses how governments across Australia and the world have employed ‘soft law’ in their responses to the COVID-19 pandemic. Rather than simply directing the public to the text of voluminous, complex and everchanging public health orders, executive officials have utilised a variety of non-legal soft law instruments to inform the community of their rights and obligations. These instruments are beneficial—especially in a public health crisis—as they are comprehensible, adaptable and effective. However, their non-legal nature also presents significant accountability issues which challenge the Australian conception of the separation of powers. Soft law exists independent of any parliamentary authorisation or oversight. Subsequently, those affected by soft law lack almost any ability to challenge its use in court. To remedy such issues, this article recommends a greater role for administrative complaint mechanisms (such as Ombudsman recommendations and discretionary payment schemes) in combatting abuses of soft law. It further suggests that the limited adoption of two foreign doctrines—substantive legitimate expectations and epistemic deference—into Australian judicial review could aid in addressing this dilemma.
McLeod, Matthew, 'Distancing From Accountability? Governments' Use of Soft Law in the COVID-19 Pandemic' (2022) 1(50) Federal Law Review 3-19 Abstract: This article analyses how governments across Australia and the world have employed 'soft law' in their responses to the COVID-19 pandemic. Rather than simply directing the public to the text of voluminous, complex and everchanging public health orders, executive officials have utilised a variety of non-legal soft law instruments to inform the community of their rights and obligations. These instruments are beneficial — especially in a public health crisis — as they are comprehensible, adaptable and effective. However, their non-legal nature also presents significant accountability issues which challenge the Australian conception of the separation of powers. Soft law exists independent of any parliamentary authorisation or oversight. Subsequently, those affected by soft law lack almost any ability to challenge its use in court. To remedy such issues, this article recommends a greater role for administrative complaint mechanisms (such as Ombudsman recommendations and discretionary payment schemes) in combatting abuses of soft law. It further suggests that the limited adoption of two foreign doctrines — substantive legitimate expectations and epistemic deference — into Australian judicial review could aid in addressing this dilemma.
McNab, Paul, 'ATO wins legal professional privilege dispute and sets new COVID-19 PE risk guidance' (2021) () _International Tax Review_ Abstract: On February 2 2021, Moshinski J of the Federal Court of Australia handed down judgment in CUB Australia Holding Pty Ltd v FC of T [2021] FCA 43. This was a dispute involving a formal statutory notice from the Australian Taxation Office (ATO) demanding certain information, and the application of legal professional privilege.
Miller, Antonia, 'Lawcodes report: New criminal penalties for COVID-19 related offences' (2020) 4(32) Judicial Officers Bulletin 33-34 Abstract: The Lawcodes database provides unique codes, called Law Part Codes, for all NSW offences and Commonwealth offences dealt with in NSW. These law part codes are intended to improve the operation of the criminal justice system in NSW through the exchange, between major criminal justice agencies, of standardised electronic information regarding offences.
Miller, Katie, 'Finding law in a time of emergency: COVID-19' (2020) () Australian Journal of Administrative Law 66 Abstract: The outbreak of the novel coronavirus and the urgent need to contain it has changed dramatically our society and the ways we live and work in a matter of weeks. The outbreak has crossed state and international borders and has touched nearly every aspect of our lives. The government response has required co-operation and co-ordination across the federation and heads of legislative power. The proliferation of new legislation and legislative instruments, as well as the interpretation of such documents, presents a challenge in citizens and lawyers alike in understanding what the rules are and the source of such rules at any given moment. The instruments which have had the most profound effect on our lives have been the biosecurity and health emergency declarations made under state and federal laws. At Commonwealth level, the Governor- General has declared a human biosecurity emergency under section 475 of the 'Biosecurity Act 2015' (Cth). In addition to amendments to facilitate the making of directions and declarations about the COVID- 19 emergency, emergency legislation has also been passed by various jurisdictions to facilitate the emergency response. Given the number of declarations, directions and amendments being made to facilitate the response to COVID-19, knowing what the law is at a given point in time and how it will be implemented has become a daily challenge.
Minson, Shona and Catherine Flynn, 'Symbiotic Harms of Imprisonment and the Effect on Children's Right to Family Life: Comparing the Impact of covid-19 Prison Visiting Restrictions in the UK and Australia.' (2021) 2(29) International Journal of Children's Rights 305-325 Abstract: Measures taken by governments to address COVID-19 in prisons, have impacted significantly on the lives and rights of children. There has been consequential interference with children's rights to family life and to contact with a parent from whom they have been separated. Since the onset of the pandemic, prisoners in many jurisdictions have lived under restricted regimes with almost universal bans on family visits. Children have not had face-to-face contact with their imprisoned parents, and alternate forms of contact have not always been available to them. Using survey and interview data collected during lockdowns in the UK and Australia, we consider the implications of the interference with the rights of children with an imprisoned parent. Focusing on their relationships, health and wellbeing and using the concept of symbiotic harms, we note how children's experiences of the cessation of contact interacted with parents' and caregivers' experiences, amplifying the harms to children.
Moloney, Kim and Susan Moloney, 'Australian Quarantine Policy: From Centralization to Coordination with Mid-Pandemic COVID-19 Shifts' (2020) 4(80) Public Administration Review 671-682 Abstract: Combining a historical institutionalism approach with institutional isomorphism and punctuated equilibrium, this article analyzes quarantine policy change across 120 years of Australian quarantine history. By anchoring its analysis within specific time periods (the years before the Spanish flu, seven decades of inaction, and multiple post-1997 pandemic updates and responses), the authors highlight when and why policies did or did not change and how the constant push-and-pull between state and Commonwealth institutional ownership altered policy possibilities. The heart of the analysis showcases how Australia's successful COVID-19 response is a unique output of prior quarantine policies, institutional evolution, and mid-pandemic alterations of key national pandemic response plans.
Morris, Narelle and Anna Bunn, ‘When Trust Fails Purpose: Legislative Lessons From Police Access to the SafeWA Covid 19 Contact Tracing Data’ (2023) 50(2) University of Western Australia Law Review 162–192 Abstract: In response to the ongoing COVID-19 pandemic, Western Australia (WA) introduced in November 2020 a mandatory contact tracing registration system and rolled out an online mobile application (the SafeWA app) which allowed users to easily check-in to venues at which they were required to register their attendance. The WA public was assured that their check-in data, including data logged through the SafeWA app, would only be used for contact tracing purposes. Despite this, it later came to light that WA Police had sought and gained access to data collected by the SafeWA app in connection with criminal investigations. Following that revelation, and to address its potential to undermine public confidence in the SafeWA app (and the contact tracing system in general), the WA Government introduced the Protection of Information (Entry Registration Information Relating to COVID-19 and Other Infectious Diseases) Act 2021 (WA). That Act, which came into force in June 2021, provides that entry registration information can be used only for contact tracing and some other specified purposes and cannot be used for general criminal investigations or law enforcement. This article examines the legislative basis of WA’s mandatory contact tracing registration system and highlights some of the implications for law-making, parliamentary oversight and the rule of law which result from the use of subsidiary legislation to effect significant controls over the public.
Morrison, David and Patrick Quirk, 'An Australian Conundrum: Genomic Technology, Data, and the COVIDSafe App' (2020) 1(33) Pace International Law Review 43 Abstract: This paper examines the difficulties that have arisen in Australia in the use of its contact-tracing app. We examine the privacy implications around the use of the app, the wider economic imperative, and the balancing of those concerns against the health threat of the COVID-19 pandemic. We posit that default options are superior in times of emergency and rather than begging for the adoption of lifesaving technology, we suggest that the evidence gathered by behavioral economists provides an apposite and powerful alternative worthy of consideration.
Morrissey, Philip, 'COVID-19 Pandemic: The Circus is Over, for the Moment' (2020) 4(17) Journal of Bioethical Inquiry 591-593 Abstract: This critical essay responds to the COVID-19 pandemic and subsequent lockdown in Victoria from the perspective of a retired Aboriginal academic and reflects on personal responsibility, Indigenous history, and resilience.
Morton, Sophie, 'Competition, co-operation and COVID-19' (2020) 1(24) Inhouse Counsel 6-8 Abstract: The public health response and the economic response to the impact of the COVID-19 pandemic are inextricably linked. In order to support businesses in implementing social distancing measures, with the effects of supply chain disruption and other consequences of the outbreak, the Government has developed numerous policy measures aimed at lessening the economic impact. The Australian Competition and Consumer Commission (ACCC) has also identified several regulatory priorities arising from the outbreak, establishing a COVID-19 Taskforce. As a result of the pandemic, the ACCC has granted permission for organisations in several sectors to behave in a way which would ordinarily be prohibited, so that businesses can work together to co-ordinate and strengthen Australia's response to COVID-19. ACCC Chair Rod Sims told the 'Australian Financial Review' Banking & Wealth Summit Crisis Briefing that
Mostyn, Ben and Niamh Kinchin, 'Can I Leave the House? A Coded Analysis of the Interpretation of the Reasonable Excuse Provision by NSW Police During the COVID-19 Lockdown' (2021) 3(49) Federal Law Review 465-495 Abstract: This article looks at the recent Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, which was in force in New South Wales from 31 March 2020 to 14 May 2020. The order allowed police to fine people who left their houses without a 'reasonable excuse'. This article considers the confusion around the order in the community and upper levels of the government. Publicly available information about the fines issued by the police is analysed and it is argued that an overly narrow application of the order by police meant that its application was not reasonably proportionate to the authorising legislation, the Public Health Act 2010 (NSW). It is concluded that if future lockdowns are required, care will need to be taken to ensure that Ministerial orders are crafted in line with the legislation and that police officers clearly understand their operation.
Moulds, Sarah, 'Scrutinising COVID-19 laws: An early glimpse into the scrutiny work of federal parliamentary committees' (2020) 3(45) Alternative Law Journal 180–187 Abstract: Australia’s parliamentary model of rights protection depends in large part on the capacity of the federal Parliament to scrutinise the law-making activities of the Executive government. Emergency law-making undertaken in response to the COVID-19 pandemic has challenged the Australian Parliament’s capacity to provide meaningful scrutiny of proposed laws, particularly identifying and addressing the impact of emergency powers on the rights of individuals. In this context, the work of parliamentary committees has become increasingly important. Special committees, such as the Senate Select Committee on COVID-19, have been set up to provide oversight and review of Australia’s response to the pandemic. This article gives an early glimpse into the key features of the COVID-19 Committee and the way it may interact with other committees within the federal system to scrutinise the government's legislative response to the pandemic. It also offers some preliminary thoughts on the capacity of these committees to deliver meaningful rights scrutiny.
Moulds, Sarah et al, 'Stopping the Spread? Enhancing Legal Frameworks for the Protection of Personal Information in the Context of COVID-19 Contact Tracing' (2021) 3(37) Law in Context. A Socio-legal Journal (advance article, published online 24 January 2022) Abstract: Personal privacy versus public safety is a rights trade-off that has been brought into sharp focus by the COVID-19 pandemic, with flow-on implications for the success of contract tracing regimes implemented across Australia. These contact tracing regimes depend upon the supply of accurate information by individuals, which in turn depends upon the trust that is placed in health authorities and other government officials to handle personal information with care. A range of different laws govern the collection and use of personal information by health authorities at the federal level and in each Australian state or territory. Understanding these rules might help us to work out ways to ensure that everyone in our community feels like they can tell the truth when it matters most. Using a case study from South Australia, this article reviews existing legislative, regulatory and policy frameworks that currently apply to the col-lection and use of personal information in health care and highlights the tension between creating incentives to share personal information and policing compliance with COVID-19 laws and ensuring robust legal protection for sensitive personal information. Relevant lessons from the South Australian experience are then extrapolated for considera-tion by other Australian jurisdictions, with a view to identifying what safeguards and protections could be included in current legal frameworks governing the use, sharing and disclosure of personal information in health care settings to help resolve the current tension between protecting individual privacy and promoting public health.
Murphy, Brendon, 'Case and Comment: RE BROES [2020] VSC 128' (2020) 3(44) Criminal Law Journal 189-195 Abstract: The COVID-19 pandemic has had a disruptive effect in Australian criminal law, primarily because the processes involved in criminal prosecution are distinctly social in their character. Trials have been delayed, judge-only trials have replaced jury trials, and incarceration has become more onerous as correction facilities and prisons have gone into lockdown. For those who are in custody awaiting trial, this issue creates a specific problem linked to bail, as the courts strive to find a balance between ordering a person to extended detention in the absence of a conviction, and allowing the accused to return to the community where future re-offending may take place. This issue is neatly illustrated by a decision of Justice Lasry in the Victorian Supreme Court to grant bail in a case involving serious drug offences, which has rapidly become a beacon for bail decisions in that jurisdiction.
Murphy, Brendon and Tahlia Ferrari, 'Bail in the Time of COVID-19' (2021) 4(44) Criminal Law Journal 247-263 Abstract: One of the numerous and unexpected ways that the COVID-19 pandemic has affected Australian law and judicial practice, has been the impact on bail applications. In a very short space of time, a new body of jurisprudence has emerged in which the COVID virus has become a relevant factor in the determination of bail. This article considers the extent to which COVID has influenced bail decisions in New South Wales and Victoria, by analysing how COVID-19 has changed bail applications, and the impact this has on bail jurisprudence. In conclusion, we suggest that while COVID has been integrated into Australian law rapidly, it has done so with respect to existing categories including concerns centred around trial delay, potential exposure to the virus while incarcerated, increased health risks due to a compromised immune system, hardship on remand, and limits on access to legal representatives. While COVID has affected decision-making, it is one of many factors considered.
Murphy, Julian R., 'Pandemic sentence remissions: a model for executive decarceration during and following COVID-19' (2021) 1(33) Current Issues in Criminal Justice 47-53 Abstract: During the COVID-19 pandemic, prisoners around the world have been released from custody as a result of generally applicable government policies or individualised administrative decisions. This has brought to light the ways in which the Executive may, consistently with historical practice and contemporary exigencies, alter the effect of sentences imposed by the judiciary. In this comment, the author argues that this phenomenon also has implications for those prisoners who have not been released during the pandemic. Taking Australia as the immediate site for his intervention, Murphy argues that – under existing legislation – thousands of prisoners may now be eligible for sentence remissions to account for the especially onerous conditions of imprisonment during the pandemic. Many aspects of this proposal are modest, especially its framing within current doctrine. Yet the modesty of the proposal serves to uncover a middle ground for the meeting of criminal justice traditionalists and advocates of decarceration. Meaningful, if provisional, compromise on decarceration may be closer than we think.
Murphy, Kristina et al, 'Why people comply with covid-19 social distancing restrictions: Self-interest or duty?' (2020) 4(53) Australian and New Zealand Journal of Criminology 477-496 Abstract: On 11 March 2020 the World Health Organization declared the novel coronavirus outbreak (COVID-19) a global pandemic. At the time of writing, over 16 million cases of COVID-19 had been confirmed worldwide, and more than 650,000 people had died from the virus. A priority amongst governments globally is limiting the spread of the virus. In Australia, this response included mandatory 'lockdown' restrictions which limited citizens' freedom of movement. This article uses survey data from 1595 Australians to examine compliance with COVID-19 lockdown restrictions in the early stages of the pandemic. Results revealed that a substantial number of Australians did not comply fully with the measures. Further, while self-interest and health concerns motivated compliance, normative concerns regarding duty to support the authorities dominated compliance decisions. The findings' implications for both compliance research and for authorities wanting to nurture voluntary compliance with public health orders are discussed.
Nabben, Kelsie, 'Trustless Approaches to Digital Infrastructure in the Crisis of COVID-19 Australia's Newest COVID App. Home-Grown Surveillance Technologies and What to Do About it' (SSRN Scholarly Paper No ID 3579220, 14 January 2020) Abstract: This week, the Australian Government proposed a mobile phone-based tracking application to address the spread of coronavirus. The COVID-19 pandemic has demonstrated an acceleration of government-led surveillance technology around with the world. At present, the significant uptick in digital tools as a policy response to address the public health crisis are not being matched by suitable policy clauses or technology design to serve the interests of Australian citizens. This article presents the global contact-tracing phone app responses to COVID-19, outlines the key privacy concerns and presents alternative policy pathways and technical approaches towards privacy preservation and trustless (trust minimising) digital infrastructure to improve Australia’s digital-political response to COVID-19.
Narayan, Maya, ‘A Force of Last Resort?: A Critical Evaluation of the Use of the Australian Defence Force in the Context of Bushfires and Pandemics’ (2022) 33(3) Public Law Review 246 Abstract: In the last three years, Australia has experienced an unprecedented coalescence of threats posed to the health and safety of its population: the catastrophic 2019/2020 bushfire season; and the COVID-19 pandemic. In both contexts, the States and Territories have, consistently with the distribution of authority for emergency management within Australia's federal system, taken primary responsibility for responding to the relevant crisis. Forced to play a supporting role, the Commonwealth has increasingly relied on deployment of the Australian Defence Force (ADF) to provide assistance. The position advanced in this article is that the key justifications for use of the ADF in responding to domestic emergencies – particularly those constituted by threats of a not directly anthropogenic nature – do not adequately explain the value of the ADF and that significant functional and legal constraints on defence personnel in this context may, in fact, hinder state and territory emergency responses.
Nash, Meredith and Brendan Churchill, 'Caring during COVID-19: A gendered analysis of Australian university responses to managing remote working and caring responsibilities' (2020) 5(27) Gender, Work & Organization 833-846 Abstract: COVID-19 is dramatically reconfiguring paid work and care. Emerging evidence in the global media suggests that academic women with caring responsibilities are being disproportionately impacted. This article fills a key knowledge gap by examining how Australian universities are supporting academics to manage remote work and caring during the COVID-19 pandemic. We conducted a desktop analysis of public information about remote working and care from 41 Australian universities and compared them to the world’s top ten ranked universities. Findings suggest that during the pandemic, the Australian higher education sector positions decisions about caring leave and participation in the paid labour force as ‘private’ matters in which employees (mainly women) design their own ‘solutions’ when compared with international institutional counterparts. We argue that COVID-19 provides another context in which universities have evaded their responsibility to ensure women’s full participation in the labour force.
Nasrun, Mastika et al, 'Legal Challenges of the Covid-19 Vaccination Program: A Comparative Discourse between Malaysia and Australia' (2021) 10(6) Malaysian Journal of Social Sciences and Humanities (MJSSH) 319-333 Abstract: During the spread of the COVID-19 pandemic, many health-related industries were alarmed and pressured to innovate solutional vaccines to reduce the effect of the COVID-19 pandemic. Extra effort and lab activities had taken place in several jurisdictions to respond to the increased demand for the COVID-19 vaccine. With these attempts, various vaccines were created and entered the market. All countries designed their own COVID-19 programme in the route to combat the viruses. These countries showed their willingness to invest to secure access to vaccines. In parallel to this development, the vaccination program is bombarded with several issues such as safety assurance, equal access to the vaccine, and protests by the anti-vaccine group. The inability to address these issues will jeopardise the success of building herd immunity which is the core in eradicating COVID-19 cases. Thus, this study explored and analysed the issues and challenges to have an effective vaccination program in a battle against the spread of the COVID-19 virus. It is a comparative study between Malaysia and Australia that includes safety measures, anti-vaccine groups and access to vaccines. This study adopts a qualitative method utilising the doctrinal study on the legal framework that describes the scope and limitation of power accorded to the Drug Control Authority of the selected jurisdictions. The research activities also include semi-structured interviews with relevant authorities using online interviews. The data are analysed using content and thematic analysis. Findings to this study may assist in identifying the loopholes within the administrative control on the vaccination program adopted by Malaysia.
Ng, Yee-Fui and Stephen Gray, 'Wars, Pandemics and Emergencies: What Can History Tell Us about Executive Power and Surveillance in Times of Crisis?' (2021) 1(44) UNSW Law Journal 227-266 Abstract: In the fight against coronavirus, the Australian government has enacted a series of measures that represent an expansion of executive powers. These include the use of smartphone contact-tracing technology, mandatory isolation arrangements, and the closure of businesses. Critics have expressed concerns about the long-term implications of these measures upon individual rights. This article will analyse the validity of such concerns in the context of other historical uses of executive power in Australia in times of crisis: during the Spanish Flu pandemic of 1918, the First and Second World Wars, and the ‘War on Terror’ post-September 2001. Drawing its conclusions from these historical precedents, the article argues that clear legislative safeguards are a minimum necessary step both to prevent police and governmental abuse of privacy, and to foster and maintain trust in the government’s ability to manage their ‘emergency’ powers in a manner consistent with human rights.
Nicol, Dianne et al, 'Australian Perspectives on the Ethical and Regulatory Considerations for Responsible Data Sharing in Response to the COVID-19 Pandemic' (2020) 4(27) Journal of Law and Medicine 829 Abstract: As the rush to understand and find solutions to the coronavirus disease 2019 pandemic continues, it is timely to re-examine the legal, social and ethical drivers for sharing health-related data from individuals around the globe. International collaboration and data sharing will be essential to the research effort. This raises the question of whether the urgent imperative to find therapies and vaccines may justify some temporary rebalancing of existing ethical and regulatory standards. The Global Alliance for Genomic Health is playing a leading role in collecting information about national approaches to these challenging questions. In this section, we examine some of the initiatives being taken in Australia against this global backdrop.
Nigam, Mudit and Shreya Chandhok, 'COVID-19 crisis and CCI's response: Lessons to be learned from Australian and British Regulators' (2020) 8(41) European Competition Law Review 419-421 Abstract: Reviews the approach of the Competition Commission of India (CCI) towards co-operation and concerted actions between competitors in response to the coronavirus pandemic. Considers whether the CCI has tended to penalise or exempt such conduct, compares the approaches adopted by the Australian Competition and Consumer Commission and the UK Competition and Markets Authority, and suggests lessons they could offer India.
Nottage, Luke R and Makoto Ibusuki, ‘Comparing Online Legal Education World-Wide: An Overview Before and after the Pandemic’ in Luke R Nottage and Makoto Ibusuki (eds), Comparing Online Legal Education: Past, Present and Future (Intersentia, 2023) [draft chapter] Abstract: This draft General Report for the October 2022 IACL conference (and for introductory and concluding chapters in a related Intersentia series co-edited book) compares the global development of online legal education before and after the COVID-19 pandemic, particularly in universities but also through professional bodies. As significant background factors, it posits the nature of each jurisdiction’s legal system and profession, resourcing of universities, ICT infrastructure, and evolving pandemic impact. It then compares highlights and lowlights from 13 diverse jurisdictions: eight in the Asia-Pacific region and four elsewhere. The General Report concludes with a discussion of common trends and issues, as well as some intriguing divergences and contingencies, and an overall prognosis given the pros and cons revealed by the pandemic-induced shift towards more online legal education.
Nottage, Luke R and Makoto Ibusuki (eds), Comparing Online Legal Education (Intersentia, 2023) Link to book page on publisher website
Book summary: This pioneering work by leading comparative lawyers examines developments in online legal education, particularly in universities but also in professional associations, before and especially after the COVID-19 pandemic. The book posits and largely confirms that transformations are linked to the extent and scope of respective legal professions (often, but not always, correlating to common versus civil law traditions), funding and other aspects of university-level education, and information and communications technology infrastructure in each jurisdiction. It charts the dramatic shift to online legal education in almost all jurisdictions even with different levels of COVID-19 infections and deaths, or mobility restrictions imposed by law and/or social norms. It also details how law teachers and students adapted to the challenges and opportunities of new technologies and practices, sometimes benefitting from serendipitous earlier events supporting online legal education, and a considerable ‘reversion to the mean’ as the pandemic has abated. The special reports incorporate extensive empirical data, including surveys on online legal education experiences. They cover 13 jurisdictions across the Asia-Pacific region (Australia, Canada, Brunei, Malaysia, Singapore, Hong Kong, Macao, Japan and Pakistan), Europe and beyond (Croatia, Cyprus, Italy and Seychelles), ranging from micro-states to very large economies, at various stages of economic development and from different legal traditions. Comparing Online Legal Education provides rich resources and lessons for legal academics and professionals, as well as those involved in education policy.
Ogg, Kate and Olivera Simic, 'Becoming an Internally Displaced Person in Australia: State Border Closures during the COVID-19 Pandemic and the Role of International Law on Internal Displacement' (2022) () Australian Journal of Human Rights (forthcoming) Abstract: In response to COVID-19, Australian states and territories have, at various times, restricted entry to returning residents. Consequently, many people have been unable to return to their homes, some for significant periods. While there have been discussions of the human rights implications of COVID-19 international travel bans and lockdowns, there has been little consideration of the application of international human rights law to those stranded by internal border closures. In this paper, we contend that these ‘stranded’ people are internally displaced persons (‘IDPs’) within the meaning of international law and examine how international law on internal displacement can inform domestic human rights law and processes. In doing so, this paper contributes to scarce scholarship on IDPs in higher-income nation-states and internal displacement associated with pandemics. We argue that while internal border closures were implemented to reduce the spread of COVID-19, the nature of the restrictions and the manner in which they were implemented were a disproportionate interference with rights to freedom of movement, family unity, education, healthcare and culture. Our analysis has lessons for responses to disaster displacement (a phenomenon likely to increase with acceleration of climate change), future pandemics and central themes in international scholarship on IDP protection.
Osborne, Sarah, ‘Smart Contracts, the Legal Profession and COVID-19: Highlighting the Need to Embrace Technology’ [2024] Accounting & Finance (advance article, published online 4 April 2024) Abstract: It has been claimed that technology would replace the legal profession with artificial intelligence and codification of documents replacing the twenty-first century lawyer. With this premise in mind, this paper discusses smart legal contract formation in the context of Australian contract law, the perceived replacement of lawyers through blockchain technology and how the COVID-19 pandemic has set the trajectory for smart legal contract convention. We consider whether the legal profession can ever truly be replaced by technological advances and whether COVID-19 has pivoted the way the legal profession performs business transactions towards modernisation. Although prior literature has considered how the legal profession may benefit from increased technology use, the expected timeframe for occurrence was dependant on a strong reluctance by the profession to change the status quo. Analysis of the impact of COVID-19 on the legal profession including the execution of legal documents, provides insight into areas for improvement going forward and whether a regulatory overhaul is required. This research shows that, although there are a number of advantages to the implementation of smart legal contracts using blockchain technology, there still remains numerous implementation and regulatory concerns that need resolution if smart legal contracts are to be widely used.
Pesutto, John, ‘New Strategy, New Voices: Time to Change Victoria’s Crisis Approach’ (Governing during crises No Policy Brief No 5, Melbourne School of Government, University of Melbourne, 10 August 2020) Key Points: This Policy Brief makes the following central points: (a) Daily appearances by a single political leader, with or without senior officials by that leader’s side, may be viewed as serving one of the cardinal principles of crisis management. However, we might consider whether the Victorian Premier’s strategy of appearing daily is working. (b) There is a risk that any head of government, who is always going to be understandably political, may not be able to sustain the unusually high levels of public faith – that we see at the beginning of many crises – for any extended period of time. (c) Ballooning COVID-19 cases raise issues about whether the Government is hearing internally from all the voices it should be heeding and whether other people need to be brought into the room.
Pulungan, Rheny and Kay Tucker, ‘Open for Business: Reinventing Monash University Law Library for a Post-COVID World’ (2022) 30(3) Australian Law Librarian 115–121 Abstract: Our libraries are open for business, and while we are not in a post-COVID world yet, we are starting to reinvent ourselves in response to the pandemic. Change is everywhere, much of it out of our control. Reinvention, or producing something new or different from something that exists, can help us to emerge stronger from a crisis. We will discuss some of the changes and challenges Monash Library staff and users experienced while working through the pandemic, particularly during the lockdown restrictions. We will look at how our library is moving forward to reinvent itself, acknowledging that while some aspects of university life have returned to how they were, others have not.
Purser, Kelly, Tina Cockburn and Bridget J Crawford, 'Wills Formalities beyond COVID-19: An Australian–United States Perspective' (2020) 5 UNSW Law Journal Forum 1-14 Abstract: COVID-19 has brought a new focus to human mortality and a person’s need to prepare for the transmission of their property at death. However, stay-at-home orders and social distancing requirements have made safely executing wills practically difficult. Using a comparative Australian-United States perspective, Dr Kelly Purser, Associate Professor Tina Cockburn and Professor Bridget J Crawford investigate the purposes of traditional wills formalities, suggest their continued vitality in the context of remotely witnessed or electronic wills, and critically discuss the emergency measures adopted in both countries and the arguments for and against making these measures permanent.
Queensland Law Society Ethics and Practice Centre, 'COVID-19 has not altered the law of capacity or a practitioner's obligation to assess client capacity' (2020) 4(40) Proctor 32 Abstract: It is recommended that you abandon a video conference if you are unable to clearly see and confirm your client’s identity, the documents being signed, or if you are unable to hear your client (or your client is unable to hear you clearly) due to technical difficulties.
Rajaretnam, Thillagavathy and Angus Young, 'Social media, its use at work and more: an Australian perspective' (2020) 6(26) Computer and Telecommunications Law Review 145-150 Note: See in particular the section entitled ‘The Future of Work, Covid-19 and Social Media’. Abstract: The internet and social media are powerful instruments for mobilisation of people across the world and there is little doubt that the digital technology and social media have a significant impact on many aspects of social life and beyond. What started as a new tool for person-to-person communication has become something more, including a marketing tool for businesses. Corporations are catching up with the use of social media. They have begun to embrace the social media revolution by harnessing the benefits of social media as a communication, engagement and marketing tool. On the other end of the scale, many organisations are sceptical about the benefits of social media and perceive it as an inefficient use of time. The use of social media is either strongly discouraged at work or banned entirely. Besides, social media is increasingly more important for businesses that could post unknown risks as well as opportunities with the advent of the fourth industrial revolution. Consequently, the use of social media platforms at the workplace deserves more attention.
Raponi, Kathleen et al, 'Academics Embrace Disruption: Lessons Learned Teaching First Year Law During a Pandemic' (2021) 1(31) Legal Education Review 27-40 Abstract: This study reports on the teaching practices adopted by a cohort of higher education academics for online and remote delivery of first year law units (subjects) as a result of the COVID-19 pandemic. Six academic staff who taught nine units face-to-face in intensive Block mode shifted their teaching online almost overnight, including conducting synchronous face-to-face teaching online. Their interview comments are initially categorised using a SWOT (strengths-weaknesses-opportunities-threats) analysis approach, then further analysed according to the elements in Moore’s transactional distance theory - dialogue, structure and learner autonomy. The study identified that while the unit space on the learning management system with links to resources and readings, scaffolded learning activities, structured interactions with clear instructions and assessments was the greatest asset, it also offered opportunities that were both practical and unexpected. While it gave academics a strong footing to commence their remote teaching, the key weakness was the loss of face-to-face contact, now replaced by Zoom. This posed threats related to learning. The findings offer suggestions and pedagogical interventions that can be applied to modify teaching practices in remote Block delivery in a post-COVID future in teaching first-year law. The research is equally applicable to teaching any discipline online.
Rašević, Živorad, ‘Australian Government against Djokovic: Foreigners Beware!’ (SSRN Scholarly Paper No 4456098, 22 May 2023) Abstract: The cancellation of Novak Djokovic`s visa to compete in the tennis tournament in January 2022 has spurred a global debate on the legitimacy of the COVID-19 anti-pandemic measures which interfere with individual freedom not to follow the recommendations of the epidemiological profession and governments. To investigate the limits of the executive`s discretion to take emergency measures for the protection of public health, this example analyzes the procedural and substantive aspects of decisions that have struck this famous tennis player. Utilising universally accepted theoretical stances on the rule of law and the application of international human rights standards, this paper investigates the legal basis, argumentation and legal consequences of the decisions of the Australian government and the Federal Court. The results of the research indicate that the decisions may be justified by the public interest. However, the unfavourable treatment of foreigners cannot be justified. They cannot rely upon guarantees of human rights and the rule of law, because of judicial non-application of relevant international standards, vague immigration laws, a broad interpretation of executive powers and narrow judicial review.
Reardon, Elizabeth, ‘Best Interests: Family Law Disputes about COVID-19 Vaccination’ [2022] (264) Ethos: Official Publication of the ACT Law Society 46–51 Abstract: Among the many additional challenges for separated families during the COVID-19 pandemic was whether or not to vaccinate their children. Elizabeth Reardon discusses several cases where parents sought a judicial determination to settle their disagreement.
Ridgway, Phillip, 'Family law and evidence: Covert recordings in family law' (2020) (72) LSJ: Law Society of NSW Journal 82-83 Abstract: COVID-19 has forced families into close confines for extended periods of time, not only during lockdowns, but also as a result of the work-from-home and home-schooling arrangements which have become commonplace as we navigate life during the pandemic .In March and April 2020, the Family Court recorded a 39 per cent increase in urgent applications filed. The rate of domestic violence has also spiked, with one survey by the Australian Institute of Criminology reporting a 53 per cent increase in the frequency and severity of family violence during the pandemic.Thanks to smartphones, most Australians now have a device at their fingertips which can make audio and video recordings at the click of a button. While the use of audio and video recordings in Family Court proceedings is not new, it seems almost inevitable that family law practitioners will soon face an increase in parents seeking to rely upon recordings taken surreptitiously during COVID lockdowns. It is therefore timely to consider whether such recordings are legal, whether they may have any use in Family Court proceedings, and the various matters to consider if a client presents you with such a recording.
Rimmer, Matthew, ‘Australia’s COVID-19 Response: Intellectual Property and Public Health’ (SSRN Scholarly Paper No 4665395, 15 December 2023) Abstract: The purpose of the Commonwealth Government COVID-19 Response Inquiry (the Inquiry) is to identify lessons learned to improve Australia’s preparedness for future pandemics. There has been a growing literature on COVID-19 law and policy – looking at the responses of international institutions, national governments, and judicial systems to the public health crisis. This submission focuses upon the role of intellectual property in terms of Australia’s COVID-19 response. The Federal Government has responsibility for intellectual property law and policy – both under the intellectual property power and the external affairs power of the Australian Constitution. So this submission does concern the ‘role of the Commonwealth Government’ in terms of ‘key health response measures’ and ‘international policies to support Australians at home and abroad.’ This submission focuses on the intellectual property dimensions of Australia’s response to the COVID-19 crisis – which both has national and international dimensions. Part 1 of the submission considers Australia’s position in debates over international intellectual property and access to essential medicines. Part 2 addresses questions in respect of patent law and access to essential medicines in the COVID-19 public health emergency. Part 3 explores the diverse role of other forms of intellectual property during the COVID-19 crisis.
Rimmer, Matthew, ‘Australia’s Framework for Access to Essential Medicines: Patent Law, Public Health and Pandemics’ in Belinda Bennett and Ian Freckelton (eds), Australian Public Health Law: Contemporary Issues and Challenges (Federation Press, 2023) ch 10
Rizzi, Marco and Tamara Tulich, ‘All Bets on the Executive(s)! The Australian Response to COVID-19’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 457 Abstract: This chapter examines the response of the Australian Federal and State governments to the COVID-19 pandemic. While successful in limiting the spread of the virus, the response caused significant challenges from a rule of law perspective. Executive powers were exercised after the declaration of states of emergency in a quasi-vacuum of checks and balances, with little parliamentary or judicial scrutiny and no clear end date. The prolonged international isolation, coupled with the uneven distribution of consequences attached to intermittent restrictions, put the institutional and legal framework of Australia to the test. The picture emerging is one where all bets are on the executives to exercise their significant emergency powers effectively and as reasonably as possible. But few substantive accountability mechanisms are in place while the pandemic (at the time of writing in July 2021) is still ongoing and so are the states of emergency.
Rossner, Meredith, David Tait, and Martha McCurdy, 'Justice reimagined: challenges and opportunities with implementing virtual courts' (2021) 1(33) Current Issues in Criminal Justice 94-110 Abstract: While video technology has long been a feature of courtrooms, during the pandemic, courts underwent a seismic shift towards virtual hearings. Physical courtrooms shut their doors and hearings were moved to a virtual space. This transformation was fast, radical, and likely to permanently alter the landscape of justice. In this article, we review the strategies courts in Australia and the United Kingdom (UK) adopted in response to the pandemic and discuss the implications for the practice of justice. We provide a close examination of the design, framing, and ritual elements of a virtual hearing that can reveal the challenges that participants face when interacting within a virtual court, and point us towards ways of reimagining a more respectful and inclusive practice.
Rozell, Mark J. Clyde Wilcox, 'Federalism in a Time of Plague: How Federal Systems Cope With Pandemic' (2020) 6-7(50) The American Review of Public Administration 519-525 Abstract: This article compares and contrasts the responses of Australia, Canada, Germany, and the United States to the COVID-19 outbreak and spread. The pandemic has posed special challenges to these federal systems. Although federal systems typically have many advantages—they can adapt policies to local conditions, for example, and experiment with different solutions to problems—pandemics and people cross regional borders, and controlling contagion requires a great deal of national coordination and intergovernmental cooperation., The four federal systems vary in their relative distribution of powers between regional and national governments, in the way that health care is administered, and in the variation in policies across regions. We focus on the early responses to COVID-19, from January through early May 2020. Three of these countries—Australia, Canada, and Germany—have done well in the crisis. They have acted quickly, done extensive testing and contact tracing, and had a relatively uniform set of policies across the country. The United States, in contrast, has had a disastrous response, wasting months at the start of the virus outbreak, with limited testing, poor intergovernmental cooperation, and widely divergent policies across the states and even within some states. The article seeks to explain both the relative uniform responses of these three very different federal systems, and the sharply divergent response of the United States.
Rundle, Kristen, 'Reassessing contracting-out: Lessons from the Victorian hotel quaratine inquiry' (Governing During Crises Policy Brief No 7, 21 September 2020) Key Points: This Policy Brief makes the following central points: (a) The role of private security contractors in Victoria’s hotel quarantine system has been the subject of intense public interest ever since the connection between actions of the guards and Victoria’s ‘second wave’ of COVID-19 infections became apparent. (b) Despite extensive efforts to ascertain who made the decision to contract-out responsibility for maintaining the quarantine system to private security guards, and why, both points remain unclear as the COVID-19 Hotel Quarantine Inquiry progresses to its conclusion. (c) This Policy Brief sets out the sequence of events that led to this Inquiry and seeks to clarify the questions raised. It argues that we need to look beyond standard mechanisms of political accountability in order to address the structural problems posed by contracting-out highstakes government functions. (d) Specifically, we need to analyse more deeply the appropriateness of contracting-out in cases that carry serious consequences for public safety and security, and develop frameworks to achieve better decision-making on when, and whether, to contract out complex government functions. The failures in this case underscore that choices about who delivers such government functions, and how, matter to those directly affected by them.
Rychert, Marta, Kate Diesfeld and Ian Freckelton, ‘Professional Discipline for Vaccine Misinformation Posts on Social Media: Issues and Controversies for the Legal Profession’ (2022) 29(3) Journal of Law and Medicine 895–903 Abstract: Misinformation has challenged the rollout of COVID-19 vaccination around the world. In 2021, professional bodies for several regulated occupations (including doctors and lawyers) initiated investigations into the conduct of members who engaged in vaccine misinformation, including on social media. This commentary discusses key controversies surrounding this novel disciplinary issue, with the focus on the legal profession in New Zealand and Australia. We consider the difficulties of defining ‘vaccine misinformation’, differentiating between public and private social media use, giving proper scope to rights of free speech, and challenges in identifying financial conflicts of interest and unethical client solicitation practices (eg, profiting from spreading vaccine misinformation). The chilling effect upon freedom of expression when lawyers are disciplined for their social media posts that are deemed unscientific is discussed.
Sabhlok, Sanjeev, The Great Hysteria and The Broken State (Connor Court Publishing, 2020) link to book page on publisher website
Abstract: This pandemic is not a once in 100 year event but closer to a once in 30 year event. The hysteria is grossly overdone. There were WHO guidelines in 2019 about flu-type pandemics and none involved lockdowns. Australian governments including Victoria’s had clear plans for all kinds of pandemics. None involved 5-km lockdowns, 23-hour curfews and mandatory masks even in the open air. These lockdowns are causing huge collateral damage while the governments remain in denial. The governments must lift the lockdowns and focus on the at-risk population. We also need constitutional and legal reforms to ensure that this doesn’t occur again.
Saladino, Rosa and Suzanne Christie, 'Family law: The limits of the 'Hague Convention' in child abduction cases' (2020) (67) LSJ: Law Society of NSW Journal 84 Abstract: In the recent decision of 'Walpole' [2020] FamCAFC 65, the Full Court of the Family Court allowed an appeal against orders requiring two children aged three and two to return to New Zealand. The case was brought under the 'Family Law (Child Abduction) Regulations 1986' which give effect in Australia to the 'Hague Convention on the Civil Aspects of International Child Abduction'. The case is one of the first to provide guidance as to how the Family Court might handle cases in the time of COVID 19.
Saunders, Cheryl, 'A new federalism? The role and future of the National Cabinet' (Governing during crises No Policy Brief No 2, 01 January 2020) Abstract: Key Points: The Policy Brief makes the following central points: (a) The National Cabinet deserves considerable credit for the (so far) very effective response to the pandemic in Australia. The COVID-19 public health crisis could not have been effectively met without drawing on the powers, knowledge and capacities of both the Commonwealth and the States, achieving a balance between collective action and tailored responses. (b) On 29 May, the Prime Minister announced that the National Cabinet would be transformed into a permanent body, replacing the existing intergovernmental architecture under the Council of Australian Governments (COAG). (c) The published outline for the structure of the new arrangements, presenting the National Cabinet and the Council on Federal Financial Relations (CFFR) as the two principal components of a National Federation Reform Council, supported by two task forces, seven National Cabinet Reform Committees and a series of intergovernmental expert advisory groups, potentially presents a major shake-up of Australia’s intergovernmental machinery.
Selby, John, 'The Efficacy, Equity and Externalities of Australia’s COVIDSafe App as a Policy Intervention during the COVID-19 Pandemic: Was It Sunscreen or Tanning Lotion?' (2021) 4(44) UNSW Law Journal 1584-1618 Abstract: Digital contact tracing apps, such as the COVIDSafe App in Australia, have been rapidly implemented by many governments as a public policy solution to increase the efficiency of health screening testing during the COVID-19 viral pandemic. This article analyses how the COVIDSafe App’s unresolved efficacy and equity issues and the cybersecurity and privacy externalities it imposes onto Australians have prevented the App from making a significant positive contribution towards reducing the impact of the pandemic in Australia. It attributes some of the failure of Bluetooth-based digital contract tracing apps to their mis-characterisation as a Lessigean ‘code as law’ policy response, arguing instead that such apps are more complex and fragile cyber-physical systems requiring more analysis prior to implementation.
Sharmin, Tanjina and Emmanuel Laryea, ‘Australian COVID-19 Measures and Its International Investment Obligations’ (2022) 21(2) Journal of International Trade Law and Policy 182–214 Abstract: This paper aims to examine the prospect for international investment disputes in the aftermath of the COVID-19 pandemic due to measures implemented by the Australian government to tackle the pandemic. This paper finds that claims based on the protections in the International Investment Agreements (IIAs) signed by Australia are unlikely to succeed and that Australia’s COVID-19 measures can be justified as necessary measures under the general and security exception clauses included in more recent IIAs and under customary international law. Originality/value In the context of the COVID-19 pandemic, scholars have written papers apprehending possible claims by international investors against emergency measures adopted by host countries to face the pandemic which might also have damaged the interest of the foreign investors. The existing literature is too vague and general. To the best of the authors’ knowledge, this is the first paper that draws some specific conclusions in this regard applicable to the COVID-19 regulatory measures taken by Australia. While the existing literature projects the possibility of such investor claims, this paper argues that at least no such claim would succeed against the COVID-19 measures taken by Australia.
Sifris, Ronli and Karinne Ludlow, 'The Impact of COVID-19 on Fertility Treatment in Australia' (2021) Journal of Law and Medicine (forthcoming) Abstract: On 25 March 2020, as part of the Australian response to the coronavirus pandemic, all non-essential elective surgery was indefinitely suspended. This had immediate impact on the provision of fertility treatment because the vast majority of fertility treatments were classified as non-essential. The suspension ended on 27 April 2020, although other restrictions continued. Between June and August 2020, we conducted semi-structured interviews to determine the impact of these initial regulatory responses to the pandemic on the provision of fertility treatment in Australia during two key periods: the suspension of non-essential surgery and the reopening. Changes to the practice of fertility treatment demonstrate the importance of planning for prioritisation and other matters to be addressed in preparation for possible future pandemics.
Simic, Olivera and Kim Rubenstein, ‘The Challenge of “COVID-19 Free” Australia: International Travel Restrictions and Stranded Citizens’ (2023) 27(5) The International Journal of Human Rights 830–843 Abstract: This paper uses Australia as a case study to analyse restrictions on international movement during the COVID-19 pandemic. Restrictions on inbound and outbound travel have been a key tool deployed by governments across the globe to suppress the COVID-19 pandemic. We use ‘COVID zero’ Australia as a case study to assess an extreme response to restricting international movement. We look at the recent complaint launched before the United Nations Human Rights Council in Geneva. The action was raised with the support of a group of Australian citizens stranded abroad with the assistance of the expert in Australian constitutional law who is the second author of this paper. We argue that the measures implemented by Australian governments to effectively eliminate COVID-19 domestically have provided insufficient consideration of, and alternatives to, the current system’s failure to facilitate essential international travel. For this reason, Australia’s framework for restricting international movement lacks proportionality and necessity from the perspective of human rights and freedoms.
Sims, Rod, 'Competition law in times of crisis: tackling the COVID-19 challenge: Australian Competition and Consumer Commission' (2020) 2(8) Journal of Antitrust Enforcement 264-266 Abstract: The COVID-19 pandemic has completely changed the economic landscape in Australia and the focus of the Australian Competition and Consumer Commission (ACCC). In recent weeks, I have often been asked ‘will competition survive the current crisis’? I have stated that it must and it will, as it is fundamental for the recovery phase of the crisis. An open, well-functioning economy is essential to the prosperity of all Australians, and such an economy depends completely for its success on robust competition.This short note explores the ACCC’s response to the challenges posed by COVID-19, which have led to many ‘crisis collaborations’ across sectors in the Australian economy.
Small, Andrew, 'Peer to peer: Covid-19 and transforming jury trials in Australia' (2021) 4(92) AQ - Australian Quarterly 36-43 Abstract: Along with concerts and cruise ship holidays, jury trials were an early casualty of Covid-19. When the pandemic reached Australia, governments realised that squeezing panels of 12 strangers shoulder-to-shoulder inside a jury box was no longer viable. One announcement followed another: on 16 March 2020, courts in NSW, Queensland, Victoria, and Western Australia suspended all jury trials; Tasmania did the same two days later.
Smyth, Bruce M. et al, 'COVID-19 in Australia: Impacts on Separated Families, Family Law Professionals, and Family Courts' (2020) 4(58) Family Court Review 1022-1039 Abstract: Around the globe, many families are experiencing significant anxieties linked to COVID-19. These include health concerns and economic pressures, both of which are frequently taking place against a backdrop of various levels of social isolation. In addition, many parents have been juggling home schooling requirements in the face of radically different work arrangements including the loss of employment altogether. Unsurprisingly, additional challenges and stresses are emerging for separated families, family law professionals, and family courts. In this article – written at a point-in-time in a rapidly evolving COVID-19 context – we reflect on key challenges for separated families in Australia, and some of the emerging professional responses.
Smyth, Christine, 'What's new in succession law: COVID conundrums: Consideration needed on the question of 'presence'' (2020) 4(40) Proctor 44-45 Abstract: It seems that no matter how fast I type, I can't match the speed with which things are changing as a result of COVID-19. At the time of writing, succession lawyers are grappling with how we might address the issues thrown up where there is a legislative requirement for witnessing and for it to occur 'in the presence of', particularly with respect to affidavits, wills, powers of attorney, advance health directives and superannuation binding death benefit nominations.
Song, Anthony and Michael Legg, 'Technology: The courts and the pandemic: The role and limits of technology' (2020) (66) LSJ: Law Society of NSW Journal 65-67 Abstract: COVID-19 was declared a pandemic by the World Health Organization on 12 March 2020. The Australian and state governments took various steps to try to slow the transmission of COVID-19, including closing businesses and outdoor areas, restricting group gatherings, encouraging people to work from home and follow ‘social distancing’ - reducing the number of close physical and social contacts a person has.
Spies-Butcher, Ben, 'The temporary welfare state: The political economy of job keeper, job seeker and 'snap back'' (2020) (85) Journal of Australian Political Economy 155-163 Abstract: The Coalition Government's response to the COVID crisis appears, at least temporarily, to have upended political economic certainties. Having only recently won an election fighting for lowers taxes and less spending, the Government announced the unemployment benefit would (temporarily) be doubled through a new JobSeeker payment. In amidst a renewed attempt to pass anti-union legislation, Coalition Ministers now lined up to praise ACTU Secretary Sally MacManus, who in turn praised the Government for implementing JobKeeper, a version of the union's call for a wage subsidy.
Spohr, Thomas, 'Criminal law' (2020) 66() LSJ: Law Society of NSW Journal 97-98 Abstract: In 'Kennedy v R' [2020] NSWCCA 49 the Court of Criminal Appeal examined the sentencing range for ongoing supply - which is due to become a Table 1 offence soon - and held that at least in the circumstances of this case, no penalty other than a conviction was necessary. Some practitioners likely have health concerns which place them at particular risk if they contract COVID-19. Those practitioners may also feel compromised by the lengthy history of some matters, so that they don't feel they can withdraw, especially if there is no other representation available (for example in regional areas). 'Kahil v R' [2020] NSWCCA 56 provides at least a little guidance.
Spohr, Thomas, 'Criminal practice during a pandemic: A defence lawyer's experience' () 8(32) Judicial Officers Bulletin 85-86 Abstract: For one criminal lawyer, the experience of remote working had immediate advantages such as reducing delays in waiting for court mentions. However, the author cautions that the lure of efficiency should not outweigh a loss to the perception of justice.
Stephenson, Peta, ‘Constitutional Issues Arising from Restrictions on Freedom of Movement During the COVID-19 Public Health Emergency’ in Belinda Bennett and Ian Freckelton (eds), Australian Public Health Law: Contemporary Issues and Challenges (Federation Press, 2023) ch 4
Stephenson, Scott, 'The Relationship between Federalism and Rights during COVID-19' (2021) 3(32) Public Law Review 222 Abstract: During the early stages of the COVID-19 pandemic, a number of difficult issues involving rights arose for consideration, including with respect to freedom of movement, return to one's country of citizenship, health care and education. Many of those issues had a federal dimension in Australia, with, for instance, different States adopting different responses to the issue or the Commonwealth and States sharing responsibility for taking action on the issue. This article argues that the response to COVID-19 implicated three aspects of the relationship between federalism and rights, with each yielding a different conclusion. First, federalism affected the protection of rights in a decidedly mixed manner. Second, federalism affected deliberations on rights in a broadly positive manner. Third, the federal-based protection of freedom of movement in the Constitution proved not to be a substitute for a rights-based protection of freedom of movement.
Stevenson, Rob, 'COVID-19 : Creating your new normal: Employment during the COVID-19 crisis - the 'new normal' for law firms' (2020) 4(40) Proctor 20-25 Abstract: Just like that our world changed. And while we weren't ready for it, we do need to be ready for the new normal by refining and adapting our practice and procedures. This month 'Proctor' provides some perspectives, guidance and information to assist you personally and professionally in this pandemic world we find ourselves in. The immediate crisis and panic of those last weeks in March may have passed, but the 'new normal' is likely to be here for some months to come.
Stewart, Andrew, ‘COVID-19 and the Future of Labour Research, Policy and Regulation’ (2021) 32(1) Labour and Industry 10–27 Abstract: This article reflects on the profound impact of COVID-19 on labour research and those who undertake it, on both global and local labour markets, and on labour policy and regulation in Australia. It briefly discusses the many existing challenges the pandemic has highlighted for the supply, organisation and compensation of labour in one particular sector, aged care, before going on to examine the state of the Australian system of labour regulation and policy-making prior to the current crisis. It then discusses how that system has responded to the pandemic, and critically analyses the Morrison Government’s embrace and then abandonment of the idea of consultation and cooperation with the union movement, as it seeks to set an agenda for Australia’s recovery. There seems little chance that the government’s package of changes to the Fair Work Act 2009 will do anything to address deep-seated problems such as wage stagnation, insecurity, inequality and adversarialism. Indeed it may exacerbate them.
Stewart, Cameron, Scott Brunero and Scott Lamont, 'COVID-19: Restrictive practices and the law during a global pandemic – an Australian perspective' (2020) 5(29) International Journal of Mental Health Nursing 753-755 Abstract: The COVID-19 pandemic has created a heightened state of anxiety and fear in many communities (Usher, Durkin, & Bhullar, 2020), particularly within vulnerable populations (such as the elderly, people with disability and people with mental illness; prisoners and asylum seekers). These vulnerable populations are already sensitive to the use of restrictive practices, namely, the use of interventions that restrict the rights or freedom of movement of patients via restraint (chemical, mechanical, social or physical) and seclusion. These concerns are exacerbated in a time of pandemic (World Health Organization, 2020). The laws in all Australian jurisdictions require consideration of the principle that the freedom of people in care is restricted as little as possible. It is therefore essential that restrictive practices are undertaken lawfully and with careful consideration (Chandler, White, & Wilmott, 2016). Two recent decisions of tribunals illustrate these concerns (See Box 1).
Strong, S. I., 'Procedural Law in a Time of Pandemic: Australian Courts’ Response to COVID-19' (Legal Studies Research Paper Series No No 20/38, 07 January 2020) Abstract: This chapter considers how Australian courts have responded to the coronavirus pandemic as a matter of criminal and civil procedure. Although the diverse natur
Swift, Leigh, Peter Gardiakos and Tessa Cartledge, 'Access to justice: Closing or widening the gap?: The impact of COVID-19 on access to legal services' (2020) 7(42) Bulletin (Law Society of South Australia) 18 Abstract: The authors, who have been providing free legal advice to the community at the Magistrates Court Legal Advice Service, explore the impacts of the COVID-19 pandemic on the wider community legal sector, and the particular challenges on access to justice for those in need within the community.
Tao, Frank, 'Remote court hearings in a COVID-19 world what we can learn from the case law to date' (2020) 9/10(22) Internet Law Bulletin 134-136 Abstract: The COVID-19 pandemic has caused courts to almost entirely stop conducting face-to-face hearings. With no clear end to the pandemic in sight, practitioners and their clients have been required to conduct video and telephone hearings. Some litigants have applied to vacate hearings on the basis that the proposed video or telephone substitute is unjust, unfair or unworkable. This article overviews the courts' approach to resolving such applications and identifies the types of difficulties which may cause a civil hearing to be vacated. In doing so, this article offers some practical guidance for current and future litigants in overcoming the challenges associated with remote hearings.
Tarr, J, A Tarr and K Paynter, 'Transport, Drones and Regulatory Challenges: Risk Accountability Meets COVID Fast Tracking of a Critical Industry' (2020) 2(48) Australian Business Law Review 202-211 Abstract: Drone use in commercial contexts has increased exponentially over the last several years. In the context of COVID-19 contagion and isolation restrictions, use and deployment technology has benefitted multiple users and operators as well as the wider community. While bringing new horizons in efficiency, the rapid upswing in use hastens the need for well thought out and properly integrated regulation. This article provides an overview of fast-tracked legislation in the form of the Civil Aviation Safety Amendment (Remotely Piloted Aircraft and Model Aircraft – Registration and Accreditation) Regulations 2019 (Cth). Promulgated in July 2019, in response to recommendations from the 2018 Senate Inquiry into drone operations, the legislation responds in limited ways to drone registration and training requirements. The article outlines the current landscape, proposed changes and additional essential steps to achieve optimal outcomes both in terms of safety and cost for drone operators and the wider community.
Taylor, Mark J., '"Personal information" and group data under the 'Privacy Act 1988' (Cth)' (2020) 10(94) Australian Law Journal 730-740 Abstract: The 'Privacy Act 1988' (Cth) is focused on information that relates to identified or identifiable persons. If understood narrowly, this approach risks failure to acknowledge the importance of data relating to multiple persons (group data) and its appropriate control within the framework of data governance. There is an increasingly urgent need to address this risk. Indeed, the COVID-19 pandemic has already demonstrated how group data might have tangible impact: by shifting an understanding of priority and what constitutes a reasonable trade-off between individual and public interests. This article considers the extent to which governance mechanisms could, through the vehicle of existing privacy law, protect persons from potentially harmful uses of group data in a modern information economy.
Tham, Joo-Cheong, 'The COVID-19 Crisis, Labour Rights and the Role of the State' (2020) (85) Journal of Australian Political Economy 71-83 Abstract: This article assesses the impact of the COVID-19 crisis on labour rights in Australia. It considers this impact according to three labour rights (the right to work; the right to social protection; the right to safe and healthy working conditions) and three cross currents (the forces of inequality; the increase in employer power; social dialogue).Threading through this analysis are the relevant international labour standards, particularly the standards set by International Labour Organisation (ILO). These standards are normative standards – they point to what is morally significant.They also assist in considering how the COVID-19 crisis has altered the role of the state in relation to labour rights. Before the crisis, this role corresponded with neoliberal understandings of a market-friendly and minimal state. By comparison, international labour standards offer a different understanding of the role of the state - a social democratic understanding where the state performs an active role in regulating the market in the interest of promoting decent work. What seems to be emerging from the crisis is, however, a state that is neither fully neoliberal nor social democratic – a ‘JobMaker’ state.
Thiagarajah, Lydia and Amanda Darshini Selvarajah, 'COVID-19 and Childcare Expense Deductions: Revisiting the Decision in Lodge' (2021) (50) Australian Tax Review 51-80 Abstract: The critical importance of childcare services was emphasised during COVID-19 where it was recognised as an essential service. The events of COVID-19 have fostered a newfound appreciation for the central role of childcare, without which many parents cannot gain or produce income. It is therefore timely to revisit the decision in Lodge v Federal Commissioner of Taxation (Cth) [1972] HCA 49; (1972) 128 CLR 171 (“Lodge”) that formed the precedent for denying tax deductions for childcare expenses. The article finds the single High Court judgment on this important issue inadequate, and reliance incorrectly placed on a British case. The article demonstrates how a statutory and contextual interpretation would support a different outcome. The article also calls upon Parliament to act should the courts not do so and addresses past criticisms on such calls by proposing clear deductibility parameters.
Thiagarajah, Lydia and Amanda Darshini Selvarajah, ‘COVID-19 and the FBT Child Care Exemption: Examining the Restrictive Taxation Ruling Defining “Business Premises”’ (2023) 37 Australian Tax Forum 521 [pre-published version of article available on SSRN] Abstract: Taxation Ruling (TR) 2000/4 titled ‘Fringe benefits tax: meaning of “business premises” focuses on the conditions needed to satisfy the exemption in s 47(2) for the provision of child care on employers’ business premises. By examining the only tax case on the provision and applying statutory interpretation principles, the authors challenge the restrictive interpretation in TR 2000/4 that has imposed a narrow and confusing standard as to which child care arrangements will qualify for the exemption. The authors instead submit that the Australia Taxation Office’s (ATO’s) initial interpretation when the provision was first introduced, that effectively exempted all forms of employer-sponsored child care, is the accurate interpretation. During this Covid-19 adjustment period, when employers are exploring incentives to retain and attract talent back to the workplace and stave off the potential adverse impacts of the ‘Great Reshuffle’, child care offerings by employers will be a valuable incentive. This is therefore the perfect time to shine a light on TR 2000/4 and question its legal accuracy. In the process, other directly related governance issues are illuminated such as the need for an impartial body to issue taxation rulings on exemption provisions.
Thornton, Margaret, ‘Coronavirus and the Colonisation of Private Life’ (2022) 1(1) Legalities 44-67 (pre-print) Abstract: The idea of a distinction between public and private life has a long history in political thought, but the boundary between them has become increasingly blurred as a result of temporal flexibility. Technological change lies at the heart of the ability to choose when and where work is performed, including ‘working at home’. This refers only to productive work so that the unpaid domestic and caring work that women disproportionately undertake is excluded. It continues to ‘count for nothing’ in the computation of the Gross National Product. With particular regard to the gender ramifications, this article considers the responses to an on-line survey conducted in Australia when ‘working at home’ was a key prong of the government response to COVID-19 in 2020. As unpaid work is integrated with productive work, it is suggested that the rationale for discounting it in national accounts no longer holds, especially as the sphere of intimacy is insidiously being colonised by capitalism.
Thornton, Margaret, 'Legal Professionalism in a Context of Uberisation' (2021) 3(28) International Journal of the Legal Profession 243-263 Abstract: From around the millennial turn, Australia was to the fore among common law countries in the liberalisation of legal practice with a range of radical reforms, such as the ownership of firms by non-lawyers and listing on the stock exchange. Albeit not peculiar to Australia, technological innovations, including remote working, digitalised platforms and artificial intelligence (AI), are also dramatically changing the way law is practised. Invariably motivated by profit maximisation, the impact of these reforms poses discomfiting questions for the underlying values of legal professionalism. This article will overview the reforms that have occurred, drawing on a small study of NewLaw firms in Australia and the UK, to illustrate how the “Uberisation” of contemporary legal practice is contributing to a new incarnation of postprofessionalism. The article will also show how the injunction to work at home in response to COVID-19 has given “Uberisation” an adrenalin shot in the arm.
Thornton, Margaret, ‘What Is the Law School for in a Post-Pandemic World?’ in Rachel Dunn, Maharg Paul and Roper Victoria (eds), What Is Legal Education For?: Re-Assessing the Purposes of Early Twenty-First Century Learning and Law Schools (Routledge, 2022) Abstract: University law schools have been beset with a sense of schizophrenia ever since first established in the nineteenth century. They have been unsure as to whether they are free to teach and research like the humanities and the social sciences or whether they are perpetually constrained by the presuppositions of legal practice. More recently, this uncertainty has been overshadowed by the impact of neoliberalism and disinvestment by the state in higher education. As a result of reliance on a proliferation of fee-paying students, academic capitalism has arguably become the raison d’être of the law school. Drawing on the literature of neoliberalism, this chapter shows how the Law degree has become not only a source of capital accumulation for the state but also a source of human capital for law students. Consumer power has enabled them to influence both the curriculum and pedagogy to prepare to be job-ready new knowledge workers. The chapter draws on the Australian experience, which was in the vanguard in neoliberalising higher education, although it shares similarities with other parts of the world. The impact of COVID-19 is also addressed to show how the number of job-ready graduates has been increased to reduce the cost to the state.
Timoshanko, Aaron et al, ‘An Empirical Study of Lawyers’ Capability to Adapt to Disruption in Queensland, Australia’ (2024) 31(1) International Journal of the Legal Profession 83–110 Abstract: An online survey of 261 Queensland legal practitioners working in sole, micro, small or medium-sized law firms provides valuable insights into their capability to successfully navigate disruption like that experienced during COVID-19. Our results indicated that respondent lawyers demonstrated progressiveness, openness and willingness to engage with innovative approaches, including technology, to build greater capacity within their firms. However, the results from the research identified several overlapping challenges faced by respondents that reduced their capability to adapt to disruption, including being time-poor and difficulty obtaining impartial and trustworthy information and training about emerging forms of disruption.
Tomkins, David, 'The constitutional challenge to end the COVID border closures' (2020) (71) LSJ: Law Society of NSW Journal 72-74 Abstract: On 25 May 2020, Clive Palmer and Mineralogy Pty Ltd commenced proceedings in the original jurisdiction of the High Court alleging that Western Australia's ('WA') border restrictions are in breach of s 92 of the 'Constitution'. On 16 June, Kiefel CJ remitted part of those proceedings - essentially the determination of contested questions of fact - to the Federal Court. On 25 August, Rangiah J issued a number of findings of fact and the case is now set to return to the High Court for further argument - most likely over two days before a Full Court in November 2020. Not only is the constitutionality of state border restrictions a matter of significant public interest and practical importance, in the words of the Western Australian Solicitor- General this case may also be 'one of the most significant cases on s 92 for some time'.
Trauer, James, ‘Australia’s U-Turn: The Past and Future of Australia’s COVID-19 Response’ (2022) 93(4) AQ - Australian Quarterly 10–16 Abstract: Hospitals have been straining and health care workers are still at breaking point, as we recover from a winter wave of Covid transmission. Through the first two years of the pandemic Australia’s response was lauded overseas, particularly when death rates soared in dozens of countries that had been unable, or unwilling, to pursue a ‘Covid-zero’ approach. Now the contrast is stark as we, and a sequence of countries that had previously eliminated local transmission, come to terms with our future of ‘living with the virus’. Yet questions remain: Was our success good luck or good management? Was it the best approach? Was it all worth it? Where to next?
Tucker, Kay and Becky Batagol, 'Pandemic Pressures in Universities and their Libraries: A View from Australia' (2021) 3-4(21) Legal Information Management 129-145 Abstract: The COVID-19 pandemic has heavily impacted Australian universities and their libraries but has been felt most strongly by students and staff who are already marginalised. This article draws upon both published literature and the authors’ own experiences as a librarian and academic employed at Monash University, Australia’s largest university. Important lessons from the pandemic for universities and university libraries at times of crisis and disaster include: actively recognising and responding to structural inequalities amongst students and staff; organising services so that all can participate to their fullest ability; providing students with opportunities for social connection, enhanced digital capabilities, safe and inclusive spaces and accessible materials; as well as flexible employment practices.
Ussher, Blair, 'Foreseeability and the COVID-19 pandemic' (2022) March() LIJ (Law Institute Journal) 20-23 Abstract: The foreseeability of frustrated contracts has particular relevance with the COVID-19 pandemic as the party seeking to rely on this doctrine will be confronted by the fact that, al least from early 2020, the pandemic's impact on commercial activity was foreseeable.
Vella, Marcus, ‘Travel Insurance Claims during Covid-19: An Insurance Lawyer’s Guide’ (2022) 44(5) Bulletin (Law Society of South Australia) 6–7 Abstract: So the world is opening up again. After months of late nights working from home, dialling into court hearings at the breakfast table, and swearing affidavits over Zoom, perhaps, like me, you are now finally daring enough to swap your top-half-only suit and curated video-call background for a comfy pair of travel pants, to jet off far and wide across Australia or further abroad.
Vines, Katherine, Scott Watson and Steve Swan, 'Lock down your rights: Practical tips for administering construction contracts during COVID-19' (2020) 4(31) Australian Construction Law Bulletin 45-47 Abstract: Australia is presently grappling with some unprecedented changes brought by the COVID-19 outbreak: personnel in quarantine, borders closing and worksites at a daily risk of lockdown. In this article, we summarise how this risk may be allocated under construction contracts and provide some practical tips on the administration of those construction contracts in light of the impact of COVID-19.
Visuasam, Srithar, 'Policing during COVID: An international perspective' (2021) 5(94) Police Association (Victoria) Journal 21 Abstract: Policing in Australia has evolved significantly in recent times and TPAV Delegates got to listen to an international perspective of policing during the COVID pandemic at their September conference from Calum Steele, General Secretary of the Scottish Police Federation.
Waight, Nerita et al, 'COVID-19: a missed opportunity to reimagine the justice system for our people' (2021) 1(33) Current Issues in Criminal Justice 19-26 Abstract: At a critical juncture in carceral politics globally and in Australia, the rapid responses to the COVID-19 pandemic reveal the capacity for timely, systemic change in the justice system. Despite international best practice and the Black Lives Matter movement, this comment considers how the pandemic was a missed opportunity for governments to re-imagine the justice system to end the over-incarceration and deaths in custody of Aboriginal and Torres Strait Islander people. Australian governments’ carceral, punitive policing and prison COVID-19 responses have disproportionately caused harm to, discriminated against and breached the rights of Aboriginal and Torres Strait Islander people; the full consequences of which are yet to be realised.
Wallace, Anne and Kathy Laster, 'Courts in Victoria, Australia, During COVID: Will Digital Innovation Stick?' (2021) 2(12) International Journal for Court Administration Article 9 Abstract: We present a case-study of the swift digital response to COVID-19 restrictions by the courts in the State of Victoria, Australia’s second-largest jurisdiction. We analyse the extent to which the management of this crisis (Step 1 in John Kotter’s model of innovation) can serve as the catalyst for digital innovation in these courts. We contend that the history of innovation in Australia is of quick, pragmatic fixes which do not translate into systematic change. For example, although Australian courts are often credited with being pioneers in court technology, recourse to apparent ‘virtual courts’ before and during COVID is probably not truly innovative. Applying Boschma’s theory about the 5 ‘proximities’ which promote innovation — geographical, social, cognitive, institutional and organisational — we maintain that for these courts, those factors have, paradoxically, worked in the opposite direction to undermine technological innovation. However COVID has seen critical changes in a number of these elements, supported by ideological and practical concerns for courts. Taken together, we are cautiously optimistic that post-COVID, Kotter’s final stage of “Making it Stick” through a technologically friendly legal culture which supports systematic and sustained court innovation, might just be possible if government is willing to fund a grander innovation agenda and has confidence in the courts’ ability to carry it through.
Walpole, Samuel and William Isdale, 'Business Interruption Insurance and the COVID-19 Pandemic' (2020) 1(49) Australian Business Law Review 73-77 Abstract: The extent to which business interruption insurance policies respond to the disruption wrought by the COVID-19 pandemic has emerged as a significant legal issue in Australia and overseas. In the first Australian test case – HDI Global Specialty SE v Wonkana No. 3 Pty Ltd [2020] NSWCA 296 – a five-judge bench of the New South Wales Court of Appeal addressed the fact that many Australian policies contain exclusions from cover framed around reference to the now-repealed Quarantine Act 1908 (Cth), which has been replaced by the Biosecurity Act 2015 (Cth). This note highlights key aspects of the reasoning of the members of the Court of Appeal and considers the lessons that emerge from the decision.
Walpole, Samuel and William Isdale, 'COVID-19, the Principle of Legality and the 'Legislative Bulldozer' of the Biosecurity Act 2015 (Cth)' (2021) (32) Public Law Review 287-290 Abstract: The COVID-19 pandemic has prompted wide-reaching and stringent public health measures, many of which draw their legal authority from the framework provided under the Biosecurity Act 2015 (Cth). Perhaps the most controversial measure has been the determination made by the Minister for Health and Aged Care (the Minister) under s 477 of the Biosecurity Act on 30 April 2021 that, for a period of two weeks, it would be prohibited for a person to enter Australian territory by aircraft without an exemption if that person had been in India within 14 days of the aircraft’s scheduled date of departure. Following the making of the determination, the applicant, Mr Newman, brought proceedings in the Federal Court challenging the validity of the determination and the statutory provision under which it was made. Mr Newman’s application raised a number of arguments, including that there existed in the Commonwealth Constitution an implied freedom of all citizens to enter Australia. Owing to the time limited nature of the determination, the Federal Court ordered that the hearing of grounds that did not involve a constitutional question be expedited.On 10 May 2021, in Newman v Minister for Health and Ageing (Newman), Thawley J dismissed the challenges to the validity of the determination based on administrative law grounds, giving extempore reasons. This note focuses on one of these grounds, which contended that – in accordance with the principle of legality – the Biosecurity Act had not abrogated the fundamental common law right of citizens to re-enter their country of citizenship with clarity sufficient so as to render the determination valid.
Walters, Robert, 'Close out Netting Provisions: Their Current Value in a Time of International Uncertainty!' (2020) 10(31) International Company and Commercial Law Review 564-595 Abstract: The world is facing significant geopolitical and economic challenges. This article explores the current value of close-out netting provisions as a result of the recent coronavirus outbreak. It examines the netting provisions of Australia, European Union, United Kingdom and the United States. The article makes the argument that as states increasingly turn inward, upholding the current international legal framework will be more important.
Watts, David, 'COVIDSafe, Australia’s Digital Contact Tracing App: The Legal Issues' (SSRN Scholarly Paper No ID 3591622, 02 January 2020) Abstract: The Australian government has developed a digital contact tracing app, COVIDsafe, accompanied by a temporary legal framework that is designed to support its deployment until a legislative framework is developed.This preliminary analysis argues that the temporary legal framework does a creditable job in addressing privacy concerns. Despite this, there are a variety of legal risks that remain. These centre on the ability of the courts to issue orders to obtain and inspect the data produced by or through the app; police warrant powers; metadata retention and its availability to local law enforcement agencies; the vulnerability of data to US law enforcement agencies through the US CLOUD Act; inaccurate assurances about proximity restrictions and more general concerns that users’ consent to the use of their app data for contact tracing may not be valid.These are issues that must be addressed by government when it develops its permanent legislative framework for COVIDSafe. A failure to do so will erode the community’s trust in COVIDSafe and thus undermine its efficacy as a means by which COVID-19 risks can be managed until a vaccine or an effective treatment become available.
Watts, Kim and Tina Popa, 'Injecting Fairness into COVID-19 Vaccine Injury Compensation: No-Fault Solutions.' (2021) 1(12) Journal of European Tort Law 1-39 Abstract: The devastating impact of the COVID-19 global pandemic has fast-tracked the development of vaccines against the SARS-CoV-2 virus, with global vaccination efforts already underway. While the introduction of large-scale or even mandatory vaccination will facilitate resumed social interaction, work and travel, such action is not without risks. Vaccination exposes recipients to the risk of rare but serious effects, leading to pertinent questions about liability and compensation for harm caused by vaccination. There have already been rare blood clotting reactions associated with two COVID-19 vaccines, some of which have been fatal. Traditional means of accessing compensation, such as liability-based litigation, product liability regimes and existing statutory schemes may be inadequate avenues of accessing compensation for individuals who sustain vaccine-related harm. Despite a significant number of countries worldwide introducing vaccine injury compensation schemes, many European countries and Australia have been hesitant to develop a no-fault scheme to respond to potential vaccine-related injuries. This article critically analyses whether existing compensation mechanisms, including liability-based tort claims, operating in common law and civil jurisdictions, are adequate avenues of accessing compensation by injured individuals. Australia and Europe are compared because of the close similarities in their existing liability-exemption approach to vaccine injury compensation, rather than no-fault. This stands in stark contrast to the use of no-fault schemes in other major jurisdictions, and the COVAX vaccine injury compensation scheme available in 92 low- and medium-income countries. The authors conclude that the introduction of a no-fault vaccine injury compensation scheme is a desirable mechanism to compensate vaccine-related injuries, by offering a more efficient and easily accessible method of accessing compensation when compared with liability-based causes of action. With the commencement of vaccination, urgent introduction of no-fault vaccination injury compensation schemes ought to be at the forefront of lawmakers' reform agenda. [ABSTRACT FROM AUTHOR]
Webber, Katie, ‘The Precautionary Principle and Judicial Decision Making in the COVID-19 Pandemic: I. Introduction’ (2022) 29(1) Australian Journal of Administrative Law 43 Abstract: The precautionary principle prescribes that, in situations involving serious risk of harm, scientific uncertainty should not preclude responsive government action. This article examines the role of the precautionary principle in judicial decision-making in Australia and Canada during the COVID-19 pandemic. The principle has, in some cases, supplanted more rigorous legal standards of review of government action and justified a stance of judicial non-intervention. In this respect, reliance on the precautionary principle risks subverting the critical role of an independent judiciary in upholding the rule of law in times of emergency. The article offers guidance for developing a cautious approach to the precautionary principle in these contexts.
Wen, Wei, ‘Statutory Unconscionable Conduct under the “Australian Consumer Law”: A Remedy to Combat Non-Refundable Expired Gift Cards Post COVID-19’ (2022) 29(1) Competition and Consumer Law Journal 78–89 Abstract: Consumers cannot obtain refunds for the monetary value of expired gift cards. The ’Treasury Laws Amendment (Gift Cards) Act 2018 ’requires that gift cards sold on or after 1 November 2019 must be valid for at least 3 years, but it does not mandate expired gift cards to be refundable. The article argues that statutory unconscionable conduct (sections 21 and 22(1)) under the ‘Australian Consumer Law’ can solve the no refund problem. This powerful statutory relief is more necessary during the COVID-19 outbreak.
Whittaker, Alison, 'No news is no news: COVID-19 and the opacity of Australian prisons' (2021) 1(33) Current Issues in Criminal Justice 111-119 Abstract: The abysmal conditions facing people inside Australian prisons are often difficult to draw public interest on. During COVID-19, when these conditions pose an even greater danger to the dignity, wellbeing and lives of people inside, why has mainstream media reporting on conditions – including personal protective equipment (PPE) and soap provision, lockdown, health resources and communication – been so sparse? This article will explore the tightening regulatory and legal net of communications and media coming from inside prisons to families, community, and media during COVID-19, and in the years preceding it. It will then outline the significance of these communications, access, and publication restrictions to the media and policy advocacy for COVID-19 decarceration in Australian prisons and the Australian abolition conversation generally.
Williamson, Sue, Linda Colley and Sally Hanna-Osborne, 'Will working from home become the 'new normal' in the public sector?' (2020) 4(79) Australian Journal of Public Administration 601-607 Abstract: The COVID-19 pandemic compelled large sections of the workforce out of their workplaces and into their homes to work. Many commentators suggest this has forever changed how and where we work. This article analyses how Australia's biggest employers - state and federal governments - approached the transitions to working from home, and back into regular workplaces. It considers the timing of policy responses to the pandemic as one indicator of resistance to, or acceptance of, widespread working from home. The article also demonstrates previous resistance to working from home for public servants, and questions widespread conjecture that it will become the 'new normal'.
Williamson, Sue, Helen Taylor and Vindhya Weeratunga, ‘Working from Home during COVID-19: What Does This Mean for the Ideal Worker Norm?’ (2024) 31(2) Gender, Work & Organization 456–471 Abstract: The ideal worker norm is associated with specific ways of working. The ideal worker is a man who works long hours, is constantly available, and highly productive. Emerging research suggests that the shock of COVID-19, which forced millions of employees to work from home, may have been powerful enough to disrupt the ideal worker norm. We therefore ask: how did working from home during the pandemic impact the ideal worker norm? We apply Acker’s ideal worker norm to determine whether different groups of women employees who worked from home during the pandemic worked in ways which aligned to the norm. We conduct this analysis through the lens of two modalities of time: being clock time and (feminine) process time. Our examination of how employees experienced time extends existing, yet limited, research focused on time use during the pandemic. We used a mixed-method design to analyze survey data from almost 5000 Australian employees to show that significant proportions of women, women carers, and disabled women worked in a manner aligned more to the ideal worker norm, compared with pre-COVID times. We therefore conclude that a multidimensional ideal worker is emerging and one which works to both clock time and process time. This is an important finding as we seek to better understand how employees can work in a hybrid environment and what this means for organizations and employees.
Wilson, Kay, 'The COVID-19 pandemic and the human rights of persons with mental and cognitive impairments subject to coercive powers in Australia' (2020) November–December(73) International Journal of Law and Psychiatry: Special Issue on Mental health, Mental Capacity, Ethics and the Law in the Context of Covid-19 (Coronavirus) Articlw 101605 Abstract: The purpose of this paper is to explore the effect of the COVID-19 pandemic on the human rights of persons with mental and cognitive impairments subject to coercive powers in Australia. It sets out the relevant human rights in the Convention on the Rights of Persons with Disabilities which have been engaged by the COVID-19 pandemic and the government's response to it. It examines the effect of emergency legislation on the relaxation of human rights safeguards in mental health laws, with a focus on mental health tribunals (although it is limited by a lack of published decisions and gaps in publicly available information). However, some of the issues created for persons with disabilities during the COVID-19 pandemic are evident in some decisions published by the New South Wales Guardianship Tribunal. The paper critically analyses two guardianship decisions UZX [2020] NSWCATGD 3 (3 April, 2020) and GZK [2020] NSWCATGD 5 (23 April, 2020) and some emergency South Australian legislation COVID-19 Emergency Response Act, 2020 (SA) Schedule 1 to demonstrate the ways in which the human rights of persons with mental and cognitive impairments can be more at risk than those of the general population, even when the general population is itself in “lockdown.”
Wilson, Shaun, 'Rising pressures, new scaffolding, uncertain futures: Australia's social policy response to the COVID-19 pandemic' (2020) (85) Journal of Australian Political Economy 183-192 Abstract: This article speculates about the future of Australia's welfare model given the severe disruption of the COVID-19 pandemic. First, it offers a brief description of the major features of Australia's political handling of the welfare state over the past decade or so, with a focus on the Newstart benefit and the tight policing of the benefit system.
Windholz, Eric, 'COVID-19, Professional Sport and Health and Safety: Australian Cricket – A Case Study' (2021) 1(14) Australian and New Zealand Sports Law Journal 1-35 Abstract: COVID-19 played havoc with professional sports. Events were postponed or cancelled; organisations were placed under enormous economic strain; and financial, commercial and governance tensions were exposed. The same organisations then faced the daunting task of having to reformulate competitions and events to be COVID-safe. These challenges raise complex legal and regulatory issues. This article examines one set of these legal and regulatory issues – namely those associated with managing the health and safety risks associated with resuming professional sport in a COVID-19 environment. While much has been written about managing these risks from a medical and scientific perspective, comparatively little has been written about them from a legal or regulatory perspective. This article contributes to filling this gap using Cricket Australia’s response to the pandemic as its case study. Cricket’s complexity of men’s and women’s international and domestic competitions, across different formats, and in every Australian State, provides an interesting and instructive case study from which valuable insights and lessons can be distilled to inform other professional sports faced with solving like problems in the future.
Witzleb, Normann and Moira Paterson, 'The Australian Covidsafe App and Privacy: Lessons for the Future of Privacy Regulation' in Bennett, Belinda; Freckelton, Ian (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law' (Federation Press, 2021) Abstract: This chapter provides a preliminary assessment of the Australian experience with privacy regulation during the pandemic. It examines the Australian legislation enabling the introduction of the COVIDSafe app, before exploring the interaction between high levels of privacy protection and the generation of public trust. We argue that the need for specific rules dealing with COVIDSafe contact data has highlighted weaknesses in the Australia’s existing data protection framework under the Privacy Act. The chapter also considers the privacy issues arising from digital visitor registration at public venues for contact tracing and analyses the effect of recent public debates about privacy for the future of privacy regulation in Australia. In our view, the public discourse about data protection during the pandemic demonstrates that Australians attribute high value to their privacy, even in a time of crisis. The example of the COVIDSafe app illustrates that robust privacy protections are critical to achieving a strong community uptake of new data-driven technologies. We submit that Australian society would therefore benefit if the government gave better recognition to privacy interests, and their protection, than it has done in the past.
Young, Alison, ‘“Stay Safe, Stay Home”: Spatial Justice in the Pandemic City’ (2021) 1(1) Legalities 19–43 Abstract: How does spatial justice take place within cities? To understand spatial justice within a city under lockdown, this article considers both the ‘corporeal emplacements’ within spaces identified by Philippopoulos-Mihalopoulos (2015) and the ‘material geographies’ ( Soja 2010) essential to understanding spatial justice in everyday life in contemporary cities. Several of the material localities arising during the ‘stay home’ orders of the State of Emergency in Victoria are considered; namely, first, the shared spaces of the street visited by individuals on their permitted forays from home; second, the domestic space of the home; third, the spaces occupied by or allocated to those who lack stable housing; and, finally, hotel rooms, used during the pandemic to house people experiencing homelessness, returned travellers in quarantine, and evacuated detainees. Close examination of such places reveals fault lines of social stratification, linguistic and representational boundary lines regulating their governance, and the stakes of seeking to achieve spatial justice in the pandemic city.
Zetzsche, Dirk A. et al, 'The COVID-19-Crisis and Company Law: Towards Virtual Shareholder Meetings' (University of Luxembourg Faculty of Law, Economics & Finance No WPS 2020-007, 15 January 2020) Abstract: Legislation responding to COVID-19 allows us to examine how, and to what effect, the corporate governance framework can be amended in times of crisis. Almost all leading industrialized nations have already enacted crisis legislation in the field of company law. Here, given the difficulties or indeed the impossibility of conducting in-person meetings currently, the overall trajectory of company law reforms has been to allow for digitalization.We note five fields in which legislators have been particularly active. First, the extension of filing periods for annual and quarterly reports to reflect the practical difficulties regarding the collection of numbers and the auditing of financial statements. Second, company law requires shareholders to take decisions in meetings – and these meetings were for the most part in-person gatherings. However, since the gathering of individuals in one location is now at odds with the measures being implemented to contain the virus, legislators have generally allowed for virtualonly meetings, online-only proxy voting and voting-by-mail, and granted relief to various formalities aimed at protecting shareholders (including fixed meeting and notice periods). Third, provisions requiring physical attendance of board members, including provisions on signing corporate documents, have been temporarily lifted for board matters. Fourth, parliaments have enacted changes to allow for more flexible and speedy capital measures, including the disbursement of dividends and the recapitalization of firms, having accepted that the crisis impairs a company’s equity. Fifth and finally, some countries have implemented temporary changes to insolvency law to delay companies’ petitioning for insolvency as a result of the liquidity shock prompted by the imposition of overnight lockdowns.This working paper seeks to (1) document the respective crisis legislation; (2) assist countries looking for solutions to respond rapidly and efficiently to the crisis; (3) exchange experiences of crisis measures; and (4) spur academic discussion on the extent to which the crisis legislation can function as a blueprint for general corporate governance reform. Countries considered in full or in part include Australia, Austria, Belgium, Canada, China, France, Germany, Hong Kong, India, Italy, Luxembourg, the Netherlands, Norway, Portugal, Singapore, South Korea, Spain, Switzerland, Thailand, the United Kingdom, and the United States. Readers are encouraged to highlight any inaccuracies on the part of the authors in their presentation of the respective laws, and to bring further crisis-related legislation not considered in this working draft to the attention of the authors. Moreover, readers are invited to indicate where there is room for improvement therein, and/or to signal the need for policy reform.
New Zealand
Ahdar, Rex, ‘Reflecting Upon the Costs of Lockdown’ in Augusto Zimmermann and Joshua Forrester (eds), Fundamental Rights in the Age of COVID-19 (Connorcourt Publishing, 2020) Abstract: This paper endeavours to show that the indirect, downstream and long-term costs of a mandated lockdown in response to severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) producing coronavirus disease 2019 (COVID-19) are too often ignored. The New Zealand Government did not much talk about them at the time it implemented a strict lockdown based upon its elimination strategy. Yet rational public policy requires these costs need to be taken into account and weighed against the benefits of the strict lockdown approach that New Zealand adopted. Furthermore, the costs and benefits of a milder mitigation strategy (of the kind Sweden adopted) also need to be estimated and compared to the strict lockdown approach. I argue the mitigation strategy was and is a preferable one once the indirect and long-term costs and benefits are taken into account.
Anson-Holland, James, ‘Locked down but Not Detained’ [2020] New Zealand Law Journal 166 Abstract: It may not be news to anyone that New Zealand has been in the midst of a global pandemic due to a novel coronavirus disease, COVID-19. In response to this pandemic, the New Zealand Government severely restricted travel and required members of the public to self-isolate at home except as permitted for essential personal movement.
Beck, Andrew, ‘Litigation: COVID and the Courts’ [2020] (June) New Zealand Law Journal 177–180 Abstract: The COVID-19 virus has caused substantial disruption to the normal operation of the world’s business. The pre-emptive action taken by the New Zealand Government following the issue of a pandemic notice under the Epidemic Preparedness Act 2006 effectively curtailed all but essential business for a period of 5 weeks.
Catalano, Michael and Aaron Chan, ‘Common Law Systems and COVID-19 Policy Response: Protective Public Health Policy in the United States, Canada, New Zealand, and Australia’ (Conference Paper, 2022 APSA Annual Meeting: Rethink, Restructure, and Reconnect) Abstract: The Covid-19 pandemic affected the United States, Canada, New Zealand, and Australia in 2020 all pretty similarly. Knowing that that these four countries produce similar types of policies, and all follow the common law judicial system, it was necessary to analyze how the highest court of each land influenced political actors when responding to the first Covid-19 outbreak. More specifically, we determine the party affiliation of each Justice/judge, calculated the composition of the Courts and proceeded with determining how each of the four Courts ruled on protective public health policy responses. While this is new data during the beginning of the pandemic, we see similarities between 2020 Court opinions and come to conclude that more research on years following 2020 is significant to finding stronger correlations.
Charters, Claire, ‘The Relevance of Te Tiriti o Waitangi in the COVID-19 Era’ (2020) 9(4) MAI Journal: A New Zealand Journal of Indigenous Scholarship 17–19 Abstract: In this situation report I highlight how Te Tiriti o Waitangi is relevant to state and Māori regulation related to the COVID-19 pandemic, suggesting also that it was somewhat ignored by Aotearoa New Zealand’s state institutions during the country’s initial response. Focusing on the te reo text of Te Tiriti as the constitutionally and legally primary text of the Treaty of Waitangi, I argue, first, that Te Tiriti requires joint Māori and state regulation over the territories and peoples of Aotearoa New Zealand, including with respect to the COVID-19 pandemic. Second, Te Tiriti requires state government to regulate equitably and, third, it requires state government not to interfere unreasonably with taonga Māori and our culture. The government needs to do more in its COVID-19 regulatory response to comply with Te Tiriti, and therefore to act constitutionally and with legitimacy.
Chen, Bruce, ‘COVID-19 Stay at Home Restrictions and the Interpretation of Emergency Powers: A Comparative Analysis’ (2023) 44(1) Statute Law Review Article hmac012 Abstract: The COVID-19 pandemic has created immense challenges for governments in their management of the public health response and tested the limits of public law. This article undertakes a comparative analysis of the common law jurisdictions of the United Kingdom, New Zealand, and Australia. It discusses the imposition of ‘stay at home’ restrictions pursuant to public health legislative frameworks, focusing on judicial scrutiny in the context of statutory interpretation. It examines the appellate cases of R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605; [2021] 1 WLR 2326, Borrowdale v Director-General of Health [2021] NZCA 520; [2022] 2 NZLR 356, and Kassam v Hazzard [2021] NSWCA 299; (2021) 106 NSWLR 520.Using these case studies, this article seeks to reveal key themes and implications for public law. What approaches have the courts adopted to construe public health emergency powers? How have the courts treated ‘rights-based’ principles of statutory interpretation? Have the courts approached interpretation in the usual manner or displayed an unorthodox level of deference to other branches of government? The article concludes on what implications the judicial approaches have for the interpretation of emergency powers in the future.
Cheng, Vivian, ‘Tax Update’ [2020] (June) New Zealand Law Journal 161–162 Abstract: As New Zealand moves closer to containing the COVID-19 outbreak, the focus of the Government will be shifting from battling the public health crisis to restarting the embattled economy. While the temporary tax loss carry back scheme announced by the Government on 15 April 2020 was intended to provide immediate cash flow relief to businesses suffering losses as a result of COVID-19, the permanent tax loss carry-back scheme and relaxation of the tax loss continuity rules announced at the same time are longer term reforms of broader application that will hopefully assist in that recovery.
Coglianese, Cary and Neysun A Mahboubi, ‘Administrative Law in a Time of Crisis: Comparing National Responses to COVID-19’ (2021) 73(1) Administrative Law Review 1 Abstract: Beginning in early 2020, countries around the world successively and then together faced the same rapidly emerging threats from the COVID-19 virus. The shared experience of this global pandemic affords scholars and policymakers a comparative lens through which to view how differences in countries’ governance structures and administrative responses affected their ability to manage the various crisis posed by the pandemic. This article introduces a special series of essays in the Administrative Law Review written by leading administrative law experts across the globe. Case studies focus on China, Chile, Germany, Italy, New Zealand, South Africa, and the United States, as well as the World Health Organization. Although the pandemic and its consequences remain ongoing problems, this issue seeks to elucidate the regulatory challenges that countries have faced in common, and to compare approaches and distill lessons that might be transferrable across jurisdictions. From the essays in this special issue emerge at least four key lessons. First, it is clear that a global pandemic demands effective national and local governance. Second, regulations must be adaptable and responsive in the face of fast-moving public health threats. Third, emergency executive powers must be limited and subject to oversight and sunsetting. Finally, as much as administrative law can affect countries’ ability to craft effective responses to public health emergencies, responsible public leadership undoubtedly matters most of all. These four lessons can help guide efforts by lawmakers and policy advisors to prepare more nimble and effective regulatory approaches to respond to viral outbreaks and other public health threats. Even when the current global pandemic eventually recedes, the Administrative Law Review’s special issue on national responses to the COVID-19 crisis can provide a basis for reflection and renewed momentum toward strengthening international public health institutions and regulatory cooperation around the world.
Daly, Tom, ‘Elections During Crisis: Global Lessons from the Asia-Pacific’ (Melbourne School of Government Policy Brief No 10, 17 March 2021) Abstract: This Policy Brief makes the following key points: (a) During 2020 states the world over learned just how challenging it can be to organise full, free, and fair elections in the middle of a pandemic. For many states facing important elections during 2021 (e.g. Japan, the UK, Israel) these challenges remain a pressing concern. (b) The pandemic has spurred electoral innovations and reform worldwide. While reforms in some states garner global attention – such as attempts at wholesale reforms in the US (e.g. early voting) – greater attention should be paid to the Asia-Pacific as a region. (c) A range of positive lessons can be drawn from the conduct of elections in South Korea, New Zealand, Mongolia, and Australia concerning safety measures, effective communication, use of digital technology, advance voting, and postal voting. Innovations across the Asia-Pacific region provide lessons for the world, not only on effectively running elections during a public health emergency, but also pointing to the future of election campaigns, in which early and remote voting becomes more common and online campaigning becomes more central. (d) Experiences elsewhere raise issues to watch out for in forthcoming elections in states and territories undergoing serious ‘pandemic backsliding’ in the protection of political freedoms. Analysis of Singapore and Indonesia indicates a rise in censorship under the pretext of addressing misinformation concerning COVID-19, and (in Indonesia) concerns about ‘votebuying’ through crisis relief funds. In Hong Kong the electoral and political system has been drastically reshaped in advance of the September elections.
Edgeler, Graeme and Andrew Geddis, ‘The Power(Lessness) of New Zealand’s House of Representatives to Summons the Crown’s Legal Advice’ (SSRN Scholarly Paper No ID 3619623, Social Science Research Network, 5 June 2020) Abstract: The extent of the New Zealand’s House of Representatives’ (‘the House’s’) general power to summons persons and documents recently came into question. A parliamentary committee, established to scrutinise the government’s response to the COVID-19 epidemic, required that various officials provide it with the Crown’s legal advice regarding the very extensive restrictions placed upon New Zealand society. When the Attorney-General objected on the basis that the documents sought were protected by legal professional privilege, the Speaker of the House determined that the House has no power to demand their production. Although this decision was based on precedent, it differs from the position in the United Kingdom’s House of Commons (‘the Commons’) from whence the House derives its privileges. It also is questionable whether it is a desirable outcome in terms of New Zealand’s constitution. :
Fenna, Alan and Shaun Goldfinch, ‘The Politics and Policy of COVID-19 in Australia and New Zealand’ in Anthony BL Cheung and Sandra Van Thiel (eds), Crisis Leadership and Public Governance during the COVID-19 Pandemic (World Scientific, 2022) 211–235
Fitzmaurice, Luke (Te Aupōuri/Pākehā), ‘What Can the Māori-Led COVID Roadblocks Tell Us about a Bicultural Future Legal System in Aotearoa New Zealand?’ (2021) 1(1) Legalities 7–12
Geiringer, Claudia, ‘The “COVID-19 Public Health Response Act 2020”’ [2020] New Zealand Law Journal 159 Abstract: It is not hard to grasp why the Covid-19 Public Health Response Act 2020 was greeted with such a wave of sound and fury. The unseemly haste with which the Act was shepherded through the House (all stages under urgency) gave human rights groups, and others, little opportunity to come to grips with the thrust of the legislation.
Germann, Stewart, ‘Force Majeure Provisions in Franchise Agreements in New Zealand’ (2021) 40(4) Franchise Law Journal 681–691 Abstract: Events of Force Majeure A force majeure clause must first define the ‘events of force majeure.’ I. Force Majeure Clauses in General A contract might specifically provide for and manage the legal effect of external events by the inclusion of a force majeure clause. Many franchise agreements contain a force majeure clause; that is, a clause governing events happening beyond one’s control like an act of God or a pandemic. Chitty on Contracts states that a ‘force majeure clause’ is normally used to describe a contractual term by which one (or both) of the parties is entitled to cancel the contract or is excused from performance of the contract, in whole or in part, or is entitled to suspend performance or to claim an extension of time for performance, upon a happening of a specified event or events beyond the party’s control.[1] Such clauses may assume a variety of forms, but, in New Zealand, the term the usual force majeure clauses to apply has been held void for uncertainty.[2] Force majeure clauses have been said not to be exemption clauses,[3] although it is difficult to draw any clear line of demarcation between the two types of clauses, since the effect of each may relieve a contracting party of an obligation or liability to which the party would otherwise be subject.
Gowing, Rachel, ‘New Zealand: COVID-19 Pandemic - Legislative Response’ (2020) 35(9) Journal of International Banking Law & Regulation N110–N112 Abstract: Summarises legislative reforms relevant to the banking and finance sectors which have been implemented by New Zealand in response to the coronavirus pandemic. Details key features of initiatives including the mortgage repayment deferral scheme, the business finance guarantee scheme, the removal of loan-to-value ratio restrictions, protections relating to credit contracts and changes to insolvency law relief.
Green, Nicola, David Tappin and Tim Bentley, ‘Working From Home Before, During and After the Covid-19 Pandemic: Implications for Workers and Organisations’ (2020) 45(2) New Zealand Journal of Employment Relations (advance article, published 28 October 2020) Abstract: The Covid-19 pandemic has resulted, to date, in an estimated 29 per cent of the New Zealand (NZ) workforce moving quickly from centralised work locations to full time working from home (WFH). The literature prior to these extraordinary events suggests WFH is beneficial for employee wellbeing and performance, and organisational outcomes, notably productivity, retention, and business continuity in times of disruption. Lack of organisational preparedness, technological limitations, managerial reluctance, and the potential drawbacks of social isolation have meant that the rates of regular, planned WFH as a flexible work option have traditionally been low. This paper summarises the knowledge base of benefits and limitations of WFH prior to COVID-19 and speculates how the experiences of WFH during the pandemic are likely to shape the future of WFH for workers, organisations, and employees.
Harvey, David, ‘Courts and COVID-19: Delivering the Rule of Law in a Time of Crisis’ (2020) 9(1) Journal of Civil Litigation and Practice 59–63 Abstract: This section considers the effects of the COVID-19 pandemic upon the operation of the courts and the delivery of justice services in New Zealand. It argues that COVID-19 has demonstrated the fragility and fallibility of the physical presence
Hunt, Paul and Sophie Bradwell-Pollak, ‘Access to Vaccines and New Zealand’s Distinctive Response to COVID-19’ (2022) 24(2) Health and Human Rights Journal 215–218 Abstract: When considering equitable access to vaccines, and New Zealand’s general response to the pandemic, it is important to recognize New Zealand’s foundation document, Te Tiriti o Waitangi, which was agreed in 1840 between the Crown and Māori, the Indigenous peoples of New Zealand. Crucially, article 3 of Te Tiriti sets out a commitment to equity. In this viewpoint, we consider how New Zealand’s vaccine rollout drew, to one degree or another, from the country’s distinctive approach to human rights.
Keyes, John Mark, ‘Judicial Review of COVID-19 Legislation: How Have the Courts Performed?’ (2023) 30(2) Australian Journal of Administrative Law 115 [pre-published version available on SSRN] Abstract: This paper considers judicial responses to challenges to legislative action taken to address the COVID-19 pandemic, how these responses were affected by emergency conditions and the implications for judicial review generally and its role in society. The paper begins by outlining the types of legislative measures taken and then considers in very general terms the rule of law and judicial review, including hurdles to judicial review arising in many of the challenges to COVID-19 legislation, which in turn go some distance towards explaining the failure of most challenges. The paper looks next at the principal grounds advanced for challenging COVID-19 legislation in terms of the matters it addressed and the bases for the challenges. The bases for challenge are grouped under three headings: 1. constitutional law limits on law-making authority, 2. administrative law limits on delegated authority, 3. fundamental human rights and rights of Indigenous peoples. This survey is by no means exhaustive. Its aim is to add to the growing body of commentary on emergency legislation by focusing on a limited number of cases, mainly from Canada with a few from the UK, New Zealand and Australia.
Knight, Dean R, ‘Accountability through Dialogue: New Zealand’s Experience during the COVID-19 Pandemic’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook on Law and the COVID-19 Pandemic (Routledge, 2022) Abstract: New Zealand successfully pursued an elimination strategy during the COVID-19 pandemic, managing to stamp out community transmission of the virus through lockdowns, border control, contact tracing and other public health measures. This chapter evaluates the accountability of government during the height of the pandemic, while emergency settings applied and aggressive measures were deployed. The analysis adopts a relational or dialogical conception of accountability – focusing on explanation, interrogation, judgement and consequences – and looks across the political, constitutional and learning (continuous improvement) dimensions of accountability. Overall, concerns about an accountability deficit during the pandemic generally did not arise in New Zealand because the government continued to render account for its actions – the ability of various forums to scrutinise and judge the government’s actions was maintained and, in some cases, was enhanced.
Knight, Dean R, ‘Government Expression and the COVID-19 Pandemic: Advising, Nudging, Urging, Commanding’ (2020) 31 Public Law Review 391 Abstract: Comment on Borrowdale v Director-General of Health [2020] NZHC 2090, especially the ruling that the government’s messages during the early days of COVID-19 lockdown urging people to stay at home were not prescribed by law and unlawful.
Knight, Dean R, ‘Lockdown’s Legality and the Rule of Law’ (SSRN Scholarly Paper No ID 3666613, Social Science Research Network, 4 August 2020) Abstract: This short note explains the context to, and the arguments made in, the judicial review proceedings challenging the legality of the lockdown in New Zealand (Borrowdale v Director-General of Health).
Knight, Dean R, ‘Stamping out COVID-19 in New Zealand: Legal Pragmatism and Democratic Legitimacy’ [2021] (2) PUBLIC LAW 241-251 (pre-print version avaiable on SSRN Abstract: New Zealand has so far proved pretty successful in stamping out COVID-19. ‘Go hard, go early’ was the Prime Minister’s mantra. An aggressive nationwide lockdown of seven weeks from late-March to mid-May 2020 broke the chain of community transmission-limiting diagnosed cases to just over 1,800 and deaths to only 25. Day-to-day life has since largely returned to normal, with restrictions lifting after community cases of the virus disappeared. The nationwide bubble is now protected by a heavily controlled border, where any cases are caught in state-managed quarantine on entry. A couple of small outbreaks in Auckland in mid-August were dampened down, combated by a short and sharp regional lockdown and temporary elevation of precautions elsewhere. Other occasional cases, attributed to border breaches, have been addressed by aggressive contact tracing and targeted isolation. New Zealand’s success so far in combating COVID-19 is no doubt attributable to a mix of factors: late onset of the virus, early and aggressive lockdown, favourable geographical settings, effective leadership, coherent communication and community cooperation-as well as a good sprinkling of luck. :
Knight, Dean R and Jane Calderwood Norton, ‘New Zealand's Pandemic Border Fortress: Community Health and Wellbeing versus Citizens' Right to Return’ (2022) 33(3) Public Law Review 186 Introduction: Aotearoa New Zealand's elimination strategy was one of the international successes of the first two years of the COVID-19 pandemic. The virus was, by-and-large, kept at bay for much of that time. A strict “stamp it out, keep it out” approach kept cases numbers and deaths at comparatively very low levels and allowed the country to enjoy extended periods without any virus in the community. Many factors contributed to these extraordinary health outcomes, including: a strict nation-wide lockdown of 7½ weeks in the early months; similar periodic regional lockdowns in later stages (including the largest city, Auckland, for over three months in one instance); careful ongoing surveillance and contact tracing; and aggressive tailored measures to isolate and stamp out any community cases that appeared. Generous public support for the government's actions and high levels of compliance with health measures were also crucial. Elimination within the country, however, was only made possible by a heavy border fortress. This created a nationwide bubble enabling the internal health measures to succeed. All those travelling to New Zealand were required to quarantine for a period on arrival in state-managed facilities until health officials were assured that those arriving did not have the virus. While this managed isolation and quarantine system, or MIQ as it came to be known, was integral to New Zealand's successful health outcomes, it came at a cost: many New Zealand citizens were unable to return home at the time of their choosing. In other words, the managed isolation and quarantine system operated as a limitation on citizens' much cherished right to return enshrined in s 18 of the New Zealand Bill of Rights Act 1990 (NZ) (Bill of Rights Act). The question – at law and in public discourse – was whether that border restriction was justified to protect the health and wellbeing of the community within New Zealand.
Kukutai, Tahu et al, ‘New Normal: Same Inequities or Engaged Te Tiriti Partnership?’ (2020) 9(4) MAI Journal: A New Zealand Journal of Indigenous Scholarship 12–16 Abstract: As the government shifts its focus from COVID-19 elimination to addressing the longer-term social and economic repercussions of the pandemic, it is critical that Māori are able to partner and lead in decision-making. In the new normal of a post-COVID Aotearoa, the transformational vision of just relationships set out by Matike Mai is more relevant than ever. Responses that do not locate Māori at their centre will maintain, or deepen, the inequities that existed prior to the pandemic. To meet the challenges ahead, we need to draw on Aotearoa’s dual knowledge systems and the richness of mātauranga Māori. Rather than a centralised, top-down approach, we need diverse sources of expertise, experience and leadership, with communities as the locus of decision-making, orientation and direction of recovery
Lynch, Nessa and Ursula Kilkelly, ‘“Zooming In” on Children’s Rights During a Pandemic: Technology, Child Justice and COVID-19.’ (2021) 29(2) International Journal of Children’s Rights 286–304 Abstract: The implementation of public health measures in response to the COVID-19 pandemic has impacted heavily on the operation of child justice systems and places of detention, creating new challenges in the safeguarding and implementation of children’s rights. Yet, it has also been a time of innovation, particularly in the use of technology. Using case studies from Ireland and Aotearoa New Zealand, we discuss how technology has been used to maintain the balance between restrictive yet necessary public health measures and the operation of the child justice system. Examples include remote participation in remand hearings and trial and the use of ‘virtual visits’ for children in detention.
Marr, Emma, ‘Tax in the Time of COVID-19’ [2020] (May) New Zealand Law Journal 122, 127 Abstract: As I write this, we are preparing to emerge blinking from lockdown, or Alert Level 4, into the sunlight of Alert Level 3. The first meaningful tax related announcement made in relation to COVID-19 happened early March 2020. That seems like a lifetime ago. Our tax laws change quickly and often, but the Government has outdone itself recently. Deadlines have been extended, promises to waive penalties have been made and, in the blink of an eye, the Government has decided to make wholesale reforms to the loss carry-forward rules, something businesses and tax practitioners have been requesting for years.
Masselot, Annick and Maria Hayes, ‘Exposing Gender Inequalities: Impacts of Covid-19 on Aotearoa’ (2020) 45(2) New Zealand Journal of Employment Relations (advance article, published 29 October 2020) Abstract: This article outlines how the Covid-19 pandemic exacerbates economic and social gender inequalities in Aotearoa ǀ New Zealand. While this crisis highlights the central part played by women in the economy, the gender impacts of the pandemic are visible in connection to a decrease in job security and financial safety for female workers; to a rise in the duplication of paid and unpaid work; to an increase violence in and outside of homes; a heightened risk exposure to the virus and worse health outcomes. Not all women are equally positioned in this crisis, women of Māori and Pacific descent are disproportionately feeling the effects of the pandemic. The two-prong, government’s recovery plan, which only partially ensures a fair and equal economic rebuild, is critically assessed. While the economic response fails to take a systematic gender approach, scope for challenging traditional gender assumptions is met head-on in relation to policy on violence against women. The article considers flexible working options and focuses on options for reframing employment law in a post-pandemic environment with a view to achieve and deliver equality between men and women through an intersectional lens.
Mazey, Sonia and Jeremy Richardson, ‘Lesson-Drawing from New Zealand and Covid-19: The Need for Anticipatory Policy Making’ (2020) 91(3) The Political Quarterly 561–570 Abstract: The Covid-19 pandemic has seen most governments worldwide having to think on their feet rather than implementing detailed and well-rehearsed plans. This is notwithstanding the fact that a pandemic was bound to happen, sooner or later (and will happen again). The effectiveness of national responses has varied enormously. Globally, New Zealand has been perceived as setting the gold standard in ‘curve crushing’, and for a short period achieved Covid-free status. For this achievement, much credit is due to the New Zealand government, especially to Prime Minister, Jacinda Ardern. However, post-lockdown the New Zealand government has encountered a number of Covid policy implementation problems (many of which could have been anticipated). Nevertheless, Covid-19 might still turn out to have been a seismic shock to existing policy processes and policy frames (such as austerity). If so, there are grounds for hope that in the future, governments and voters might be less short-term in their outlook. Perhaps anticipatory, rather than reactive policy making, might become more fashionable?
McBride, Nicholas, ‘Ill Fares the Land: Has COVID-19 Killed the Principle of Legality?’ (SSRN Scholarly Paper No ID 4023242, 1 February 2022) Abstract: This paper is part of a larger project, arguing that the COVID-19 pandemic has exposed public law as being unprincipled and ineffectual in virtually all common law jurisdictions. This paper focuses on the treatment of the ‘principle of legality’ in judicial review proceedings in England, Australia and New Zealand, seeking to challenge the lawfulness of various governmental actions to tackle the pandemic. While up until 2020, the principle of legality was employed to declare unlawful governmental actions in a number of very important cases - most notably, the UK Supreme Court’s decision in Miller 2 - in cases involving challenges to the lawfulness of government attempts to deal with COVID-19, the principle of legality has been consistently sidelined and ignored, using various techniques described in this paper.
McLay, Geoff, ‘New Zealand’s Legal Response to COVID-19: The Challenge of Executive Overreach, Continuity of Parliamentary Control?’ in Rose-Liza Eisma-Osorio et al (ed), Parliaments in the Covid-19 Pandemic: Between Crisis Management, Civil Rights and Proportionality: Observations from Asia and the Pacific (Konrad-Adenauer-Stiftung, 2021) 141-161 [OPEN ACCESS BOOK] Abstract: This paper addresses whether New Zealand’s legal response to COVID-19 changed the balance of the relationship between the Executive and Parliament (Knight 2021,) The basic answer is ‘probably not.’ It is too easy perhaps to say that New Zealand’s somewhat informal constitutional set-up has survived the Pandemic, in much the same way that New Zealand has been able to avoid the worst of the Pandemic: a reed in the wind, the way New Zealand governs itself has bent a bit but has not fundamentally altered. This conclusion is not without controversy or its critics. There remains a case on appeal in which the plaintiff argues that Parliament did not legally authorise March and April 2020 measures (Borrowdale v Director-General of Health 2020). Opposition political parties still say that the COVID-19 Public Health Response Act 2020 (COVID Act 2020) enabled ‘executive overreach’—this even though those same parties, along with all of Parliament, have consented to the actual orders made. Before examining the New Zealand response to the Pandemic, this introduction sets out some essential information about the New Zealand constitution and way of governing. It aims to set the legal response to the Pandemic into a broader debate about executive law-making in New Zealand.
Miller, Derek et al, ‘Overview of Legal Measures for Managing Workplace COVID-19 Infection Risk in Several Asia-Pacific Countries’ [2021] Safety and Health at Work (advance article, published 26 August 2021) Background: Despite the lack of official COVID-19 statistics, various workplaces and occupations have been at the centre of COVID-19 outbreaks. We aimed to compare legal measures and governance established for managing COVID-19 infection risks at workplaces in nine Asia and Pacific countries and to recommend key administrative measures. Methods We collected information on legal measures and governance both general citizens and workers regarding infection risks such as COVID-19 from industrial hygiene professionals in nine countries (Indonesia, India, Japan, Malaysia, New Zealand, Republic of the Philippines, Republic of Korea, Taiwan, and Thailand) using a structured questionnaire. Results A governmental body overseeing public health and welfare was in charge of containing the spread and occurrence of infectious diseases under an infectious disease control and prevention act or another special act, although the name of the pertinent organizations and legislation vary among countries. Unlike in the case of other traditional hazards, there have been no specific articles or clauses describing the means of mitigating virus risk in the workplace that are legally required of employers, making it difficult to define the responsibilities of the employer. Each country maintains own legal systems regarding access to the duration, administration, and financing of paid sick leave. Many workers may not have access to paid sick leave even if it is legally guaranteed. Conclusion Specific legal measures to manage infectious disease risks, such as providing proper personal protective equipment, education, engineering control measures, and paid sick leave are recommended to be stipulated in occupational safety and health related acts.
Newman, Annie and Irina Freilekhman, ‘A Case for Regulated Industrial Democracy Post-Covid-19’ (2020) 45(2) New Zealand Journal of Employment Relations (advance article, published 14 December 2020) Abstract: Covid-19 is reshaping the domestic workforce. Thousands have lost their jobs throughout this pandemic, and we are seeing a decline in private sector unionism that is unlikely to recover under the current regulatory settings. The implications for democracy are considerable. Using the aviation industry as an example, this article defines industrial democracy, provides an insight into industrial democracy in New Zealand, and argues the case for the regulation of industrial democracy post-Covid-19
‘Overcoming COVID-19: Critical Legal Pathways’ [2020] NZ Business + Management (Sp)12-(Sp)13 Abstract: Watch for liquidity or production roadblocks, emerging insolvency risk, and rating downgrades Trends to watch: • Willingness of overseas wholesale markets to fund NZ lenders • Difficulty of accessing overseas corporate bond markets • Continuing exchange rate hedging and counterparty risks • State liquidity measures focussing on domestic goals, rather than international liquidity and trade flows DISPUTES Insights: • Additional benefits (eg, flexibility, adaptability and enforceability) from international arbitration already in place in cross-border contracts • If commencing formal dispute, consider at outset whether final award or judgment will be enforceable against foreign assets Exporters & importers CROSS BORDER TRADE: Exporters & importers International goods + services contracts. [Extracted from the article]
Palmer, Geoffrey, ‘Peace, Order, and Demonstrations’ (Victoria University of Wellington Legal Research Paper No 39/2022, Social Science Research Network, 22 February 2022) Abstract: A journalistic piece originally published by Stuff on 22 February 2022. In the wake of the anti-mandate protests and occupation of New Zealand’s Parliament in early 2022, the article provides a guide to the key legal issues. It outlines the relevant legislative provisions governing the police response, explaining the importance of operational independence and the rule of law. It also touches on how the New Zealand Bill of Rights Act 1990 has been misunderstood throughout Covid-19 debates.
Parker, Richard W, ‘Why America’s Response to the COVID-19 Pandemic Failed: Lessons from New Zealand’s Success’ (2021) 73(1) Administrative Law Review 77–103 Abstract: COVID-19 is the ultimate test of administrative law and governance, as every country faces the common challenge of saving lives from a virulent pandemic at a manageable cost to the economy. Polls show that 48 percent of Americans think that COVID-19 posed an essentially impossible test and that the US has performed as well as most other countries in meeting the pandemic challenge. This Essay refutes that misperception. It shows that the U.S. COVID-19 mortality rate for 2020, adjusted for population, was more than twice as high as Canada’s and Germany’s; 40 times higher than Japan’s; 59 times higher than South Korea’s, and 207 times higher than New Zealand’s mortality rate despite over $2 trillion in U.S. deficit spending. In fact, U.S. performance at the level of South Korea, Australia, New Zealand, or Japan in containing the pandemic would have saved over 300,000 American lives in 2020 alone. This Essay then offers a detailed comparison of the COVID-19 response of the Trump Administration to that of New Zealand, which mounted a truly successful response. While some observers have dismissed New Zealand’s success as an artifact of good luck -- or of its geographic situation as a small, rural, island state -- this Essay offers evidence to suggest that these distinctions are of marginal importance compared to a more crucial contrast: New Zealand followed the pandemic containment ‘playbook’ to the letter while in the United States the Trump Administration departed from that playbook at every turn. Moreover, New Zealand’s response was centrally planned and tightly managed while the U.S. response was incoherent and de-centralized. The evidence thus strongly suggests that the tragic disparity between America’s COVID-19 performance and New Zealand’s is primarily due -- not to geography or happenstance -- but to a stark contrast in the pandemic response strategy adopted by New Zealand’s Prime Minister Jacinda Ardern compared to that of President Trump. Leadership matters.
Qiu, Diana, ‘Human Rights Protection under the ICCPR: When Can and Should States Derogate? A Critical Analysis in the Context of New Zealand’s COVID-19 Response’ (2023) 27(5) The International Journal of Human Rights 844–871 Abstract: Public emergencies like global pandemics subject human rights to extraordinary vulnerability. The International Covenant on Civil and Political Rights (ICCPR) permits States to restrict rights by enacting permissible limitations on them at any time and by derogating from their protection in emergencies. This article argues that States should rely on the ICCPR’s permissible limitations provisions rather than lodge formal derogations in times of crisis, unlike what many States have done during the COVID-19 pandemic. It draws upon New Zealand’s highly successful public health response to support this proposition. The article argues that the accountability machinery for compliance with States’ rights obligations is stronger when permissible limitations are enacted. Where States do rely on the right to derogate, the article suggests some improvements to existing international accountability mechanisms. These include enhancing the analysis to be contained in notices of derogation and advance capacity-building to enable States to better decide if derogation is necessary in the first place. Ultimately, the article argues that keeping States within the international human rights system is ideal. This can be achieved through reliance on the flexibility built into the ICCPR via its permissible limitations provisions rather than its right of derogation.
Quinn, Kelly, ‘Suspension of Construction Contracts in the Time of COVID-19’ [2020] (May) New Zealand Law Journal 144–147 Abstract: With apologies to Gabriel Garcia Marquez, the title sums up both the subject-matter of this article, and its goal. In short, my argument is that under NZS 3910:2013 (generally thought to be the most commonly used standard form contract for non-residential construction projects in New Zealand), the Engineer ought to have issued a notice of suspension in response to the COVID-19 lockdown.
Reilly, Amanda, ‘Good Faith in the Time of COVID-19’ (2023) 47(2) New Zealand Journal of Employment Relations 2022 (advance article, published online 4 January 2023) Abstract: This article discusses some key legal developments related to Covid-19 and employment law. It considers both those related to the economic impact of Covid-19 and those related to vaccination requirements. Some legal issues which arose were specific to the circumstances of the Covid19 pandemic while others raise more broadly applicable questions which are yet to be resolved. One very clear thread that emerges is that the need for employers to consult and engage with employees in good faith was not negated by the fact of a public health crisis and national state of emergency.
Rychert, Marta, Kate Diesfeld and Ian Freckelton, ‘Professional Discipline for Vaccine Misinformation Posts on Social Media: Issues and Controversies for the Legal Profession’ (2022) 29(3) Journal of Law and Medicine 895–903 Abstract: Misinformation has challenged the rollout of COVID-19 vaccination around the world. In 2021, professional bodies for several regulated occupations (including doctors and lawyers) initiated investigations into the conduct of members who engaged in vaccine misinformation, including on social media. This commentary discusses key controversies surrounding this novel disciplinary issue, with the focus on the legal profession in New Zealand and Australia. We consider the difficulties of defining ‘vaccine misinformation’, differentiating between public and private social media use, giving proper scope to rights of free speech, and challenges in identifying financial conflicts of interest and unethical client solicitation practices (eg, profiting from spreading vaccine misinformation). The chilling effect upon freedom of expression when lawyers are disciplined for their social media posts that are deemed unscientific is discussed.
Srinivasan, Raghavan, Anuj Kumar and Priyanka Chadha, ‘Comparison of Indian and New Zealand Leadership during COVID-19’ (2020) 12(4B) PIMT Journal of Research 20–23 Abstract: In this paper, the authors want to compare two different styles of leadership in different continents during COVID-19. In this article, the governance in the form of leadership of two leaders one from India and another from New Zealand have been compared to handle the situation of COVID-19. The authors are comparing two different governance based on leadership theories. This article suggests the even though the governance of New Zealand was in the hand of the female leader but she effectively controlled the COVID-19 pandemic. Indian government was facing too much of internal and border issues which diverted the attention to handle COVID-19.
Stanley, Elizabeth and Trevor Bradley, ‘Rethinking Policing in Aotearoa New Zealand: Decolonising Lessons from the Covid-19 Pandemic’ (2021) 33(1) Current Issues in Criminal Justice 131–137 Abstract: Notwithstanding the global praise directed to New Zealand’s approach to Covid-19, the pandemic has intensified harms and inequalities in many areas of national life. The racialised, classed and gendered inequities that percolate through this settler-state have intensified, especially within criminal justice settings. At the same time, the pandemic has illustrated other opportunities for protective and just measures – not least in terms of how Māori asserted self-determination by establishing checkpoints to prevent potential carriers of Covid-19 from reaching rural Māori communities. This article shows how these responses highlighted the fundamental limits of state protection for Māori on health or law and order grounds but they also offered pathways for greater policing autonomy for Māori. From here, and drawing on the examples of Watene Māori (Māori Wardens) and Te Pae Oranga (Iwi Community Panels), the article considers how self-policing within and among Māori communities might be more clearly determined and actioned in ways aligned to the principles of Te Tiriti o Waitangi (the Treaty of Waitangi).
Upperton, Theresa et al, ‘Lockdown by Press Conference? COVID-19 and the Rule of Law in New Zealand and Austria’ (2022) 82(3) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law 577–604 Abstract: In response to the COVID-19 pandemic, the New Zealand and Austrian governments both imposed lockdowns in early 2020.This paper compares how these two responses were effected, communicated, and challenged. In both New Zealand and Austria, government communications misrepresented the extent of the lockdown, communicating measures more stringent than those legally in place. This divide between law and communications raised concerns for the rule of law, as citizens struggled to understand their legal obligations. In New Zealand, government communications were subjected to effect-based judicial review. In Austria, where the judicial review system has a stronger focus on the form of state action, government communications were not reviewed. The paper finds that the Austrian courts could have provided a similar remedy to that in New Zealand,but only through a novel and contentious approach. Preferably, the legislator should expressly bring crisis (mis)communication into the scope of Austrian judicial review.
Wilberg, Hanna, ‘Pandemic Litigation Reaffirms Hansen Approach but Also Exposes Two Flaws in Its Formulation’ (2022) 30(1) New Zealand Universities Law Review 69–78 Abstract: Pandemic-related litigation has brought a sudden increase in judicial review applications raising issues about the approach to ss 5 and 6 of the New Zealand Bill of Rights Act 1990. Some of these cases have exposed two difficulties with the Hansen six-step approach. The purpose of that approach is to ensure that the s 6 interpretive direction is used to avoid only those limits on rights that cannot be justified in terms of s 5. For the approach to achieve that purpose in all different types of cases, two difficulties with that test need to be ironed out. The first difficulty concerns step one, ascertaining the ‘intended’ meaning. The approach adopted in some recent appellate decisions is to engage in a full statutory interpretation exercise at that point. This has the potential to undermine the respect for justified limits. An alternative approach risks obstructing the s 6 direction to prefer a rights-consistent meaning (one that avoids authorising unjustified limits). I will argue a better approach is to treat step one as a mere threshold enquiry. A second difficulty concerns the formulation of all steps of the Hansen approach as addressed to ‘meanings’ of the empowering legislation. I suggest this is part of the reason why some courts have taken the view that the Hansen approach is not appropriate when dealing with broad statutory powers. A better approach, I will argue, is to address steps two to four to the act, decision or rule that is the subject of challenge.
Williamson, Myra, ‘A Stress-Test for Democracy: Analysing the New Zealand Government’s Response to the COVID-19 Pandemic from a Constitutional Perspective’ (2020) 8(6) Kuwait International Law School Journal 55–105 Abstract: This article explores the New Zealand Government’s response to the COVID-19 coronavirus pandemic through a legal and constitutional lens. It adopts an essentially doctrinal analysis in describing the response but intertwines a comparative law thread, to draw selected comparisons with how other governments have responded. It offers some political, demographical and historical insights to provide background information for non-New Zealand readers. The article aims to provide a comprehensive view of New Zealand’s constitutional arrangements and how they have impacted on the Government’s response to COVID-19 as well as a critical analysis of that response by assessing the effectiveness of various measures adopted by the New Zealand Government. The article consists of six sections. Section one provides an introduction to New Zealand’s constitutional framework including some demographic information for non-New Zealand readers. Section two describes the New Zealand Government’s overall response to the COVID-19 pandemic. Section three discusses the declaration of a national state of emergency. Section four examines the Parliamentary oversight mechanism known as the ‘Epidemic Response Committee’. Section five explores the role of the media and the importance of upholding the right to freedom of expression when responding to the pandemic. Finally, section six draws out some overall recommendations for New Zealand and other countries to consider when moving forward and preparing for the next pandemic.
Winkelmann, Helen, ‘Challenge and Change: Judging in a Time of Pandemic’ in John Burrows and Jeremy Finn (eds), Challenge and Change: Judging in Aotearoa New Zealand (LexisNexis NZ, 2022) 199–218
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