Times of Pestilence: Would a Bill of Rights Assist Australian Citizens Who Are Quarantined in the Event of an Avian Influenza (Bird Flu) Pandemic?

Ethics and Health Security in the Australian COVID-19 Context: A Critical Interpretive Literature Review

“…This kind of approach is central in the early stages of pandemics, when vital information such as the precise nature of the disease, its replication rate, and its precise effects is unknown (Blakely et al 2020 ; Boyd, Baker, and Wilson 2020 ; Rang et al 2020 ; Smith 2020 ; Buck 2020 ). As to how responses are organized, state and federal public health systems are tasked with setting up several risk management mechanisms, while the Federal Government is tasked with both organizing and taking decisive action at borders to prevent the spread of disease (Bashford 2003 ; Bennett 2009 ; Department of the Prime Minister and Cabinet 2006 ; Waller, Davis, and Stephenson 2016 ; Bennett, Carney, and Bailey 2012 ; Bashford and Howard 2004 ; Guy and Hocking 2006 ; Ly, Selgelid, and Kerridge 2007 ; Chen 2018 ; Brew and Burton 2004 ; Department of Health and Ageing 2006 ; Department of the Prime Minister and Cabinet 2019 ; Halton et al 2021 ).…”

“…Quarantine (here distinguished from isolation, as the latter can be understood to refer to segregating only the infected, while the former includes those who were, or could be, exposed) was standardly conceptualized as a necessary measure to prevent the spread of communicable disease by government and health authorities, as the alternative—allowing the unchecked spread of a communicable disease—would lead to a predictable “increase in collective morbidity and mortality” (Bennett 2009 ; Blakely et al 2020 ; Guy and Hocking 2006 ; Chen 2018 ; Letts 2006 , 131; Pelkas 2010 ; Moloney and Moloney 2020 ; Victorian Government Board of Inquiry into the COVID-19 Hotel Quarantine Program 2020 ; Czeisler et al 2021 ; MacIntyre 2020a ; Jefferies, McAdam, and Pillai 2021 ). This is not without cost, however, as quarantine and related measures limit freedom of movement (amongst other freedoms) as a means of ensuring the safety of the broader population (Department of Health 2020 ; Carter 2020 ; Parliamentary Joint Committee on Human Rights 2020a , 2020b ; Dehm, Loughnan, and Steele 2021 ; Guy and Hocking 2006 ; Pelkas 2010 ; Department of the Prime Minister and Cabinet 2019 ; Dzankic and Piccoli 2020 ; Schwarz 2020 ; House of Representatives 2021 ).…”

“…Whatever measures are used to increase safety within a pandemic will likely impinge upon some freedoms (Parliamentary Joint Committee on Human Rights 2020a , 2020b ; Letts 2006 , 131). Sources noted that quarantine measures thus require the exercise of caution to ensure they do not impinge unduly and excessively upon freedoms and rights, an exercise in striking the right balance (Bennett 2009 ; Fotheringham et al 2021 ; Davis, Stephenson, and Flowers 2011; Parliamentary Joint Committee on Human Rights 2020b ; Guy and Hocking 2006 ; Parliamentary Joint Committee on Human Rights 2020a ; Pelkas 2010 ; Gussen 2021 ; Dehm, Loughnan, and Steele 2021 ; Jefferies, McAdam, and Pillai 2021 ; Tomkins 2020 ; Higgins 2022 ). In terms of identified rights, these ranged from rights to life, health, and security (Legislative Assembly of the Northern Territory 2020 ; Parliamentary Joint Committee on Human Rights 2020a , 2020b ; Dept.…”

“…of the Prime Minister and Cabinet 2019 ; House of Representatives 2021 ; Babones 2020b ; Andrews 2021 ; Victorian Government Board of Inquiry into the COVID-19 Hotel Quarantine Program 2020 ; Bowen 2020 ; Morrison 2020 ; Hunt and Kelly 2020 ; House of Representatives 2008b ; Department of Health and Ageing 2006 ; Hunt and Murphy 2020 ; Kelly 2021 ; Legislative Assembly of Western Australia 2020a ; Legislative Assembly of Western Australia 2020b ); freedom and liberty, especially freedom of movement (Parliamentary Joint Committee on Human Rights 2020b ; Jamrozik and Heriot 2020 ; Parliamentary Joint Committee on Human Rights 2020a ; Pelkas 2010 ; Boucher et al 2021 ; Hicks 2021 ; Lelliott, Schloenhardt, and Ioannou 2021 ; Bennett 2021 ); and economic rights (Bennett 2009 ; Boyd, Baker, and Wilson 2020 ; Bashford and Howard 2004 ; Ly, Selgelid, and Kerridge 2007 ; Department of the Prime Minister and Cabinet 2019 ; House of Representatives 2008a ; MacIntyre 2020a ; Bennett 2021 ). Some sources noted that Australia has no federal bill of rights, which means that there are no guaranteed procedural (or substantive) protections from incursions from the state (Bennett 2009 ; Guy and Hocking 2006 ; Hicks 2021 ; Babie and Russo 2020 ). As the powers exercisable at the federal level are largely discretionary and wide-ranging in their scope, sources identified a danger that incursions against individual rights will go largely unchallenged (Guy and Hocking 2006 ; Chen 2018 ; Pelkas 2010 ; Carter 2020 ; Dehm, Loughnan, and Steele 2021; Dzankic and Piccoli 2020 ; Schwarz 2020 ; Gray 2021 ; Murphy and Arban 2021 ).…”

Legal rights during pandemics: Federalism, rights and public health laws – a view from Australia

“…While Australian state and territory governments have begun enacting human rights legislation, 52 there is no comprehensive inclusion of human rights safeguards in the federal Quarantine Act, which raises issues about the mechanisms for ensuring procedural safeguards in the event of a pandemic. 53 Public health measures directed at implementing social distancing, quarantine or travel restrictions will not only infringe on individual liberties that are often taken for granted in Western societies, but are also likely to have a profound economic impact. As outlined above, estimates indicate that pandemic influenza will have a significant impact on the global economy.…”