Australia’s civil liberties under coronavirus: advocates warn laws must be temporary

Broad new powers given to the federal and state governments to limit the movement of Australians during the coronavirus pandemic are appropriate but should remain limited for the duration of the crisis, civil liberties advocates have said.

The biggest two changes to Australians’ rights are the states’ declarations of emergency, and the declaration of a human biosecurity emergency under the Biosecurity Act.

That empowers the health minister, Greg Hunt, to issue “any direction to any person” and “determine any requirement” necessary to prevent the spread of coronavirus in Australia, to another country, or to implement a World Health Organisation recommendation.

Related: Australian army calls on reservists to tackle coronavirus crisis

The limit on this power is that any direction to a state or territory official must be in agreement with the state or territory, and the declaration is limited to three months, although it can be extended.

Those who fail to comply with the direction can face up to $63,000 in fines or five years in jail.

The dean of the law faculty at the University of New South Wales, George Williams, said: “You can’t get much more extensive than that. I mean, it’s largely unchecked unfettered power that now resides in the federal health minister, and that shows the gravity of the situation.

“We’ve moved remarkably quickly from a restrained and quite cautious government response to one where all bets are off. And suddenly the gloves have been removed when it comes to the powers they’re exercising,”

Williams said what made both the state and federal declarations different from other rushed powers vested in the wake of the September 11 attacks was that the emergency powers were limited to the time deemed necessary.

“And in that way they’re akin to … during the war where extraordinary powers are vested but with a clear eye to the fact that they should last as is needed to deal with the emergency.”

More intrusive powers may be coming. The Ruby Princess debacle, which has resulted in more than 100 cases of coronavirus after passengers were allowed to disembark without being quarantined, led the Australian Health Protection Principal Committee to recommend this week the mobile phone tracking of any returned traveller.

It is unclear whether this would be through a direction to telecommunications companies under the health minister’s new powers, or using existing legislation such as the powers in the mandatory data retention legislation.

The use of metadata could allow police to find where people who have coronavirus have travelled.

Last week state and territory police and health officials said they had no plans to use metadata in combating the coronavirus pandemic,

However, South Australia has already admitted to using metadata for contact tracing in the early stages of the pandemic, while Victoria police told Guardian Australia they were empowered to assist the chief health officer if such a request was made, although it currently had no plans to use metadata.

Related: Border Force blames NSW Health for letting Ruby Princess dock without coronavirus checks

Victoria police have been using FaceTime as part of their 500-officer strong Operation Sentinel to ensure those who are required to self-isolate are actually at home.

The NSW police commissioner, Mick Fuller, said this week he would welcome tracking people who have coronavirus via phone apps if it was “opt in”.

NSW police commissioner Mick Fuller addresses media on Wednesday. Photograph: Dan Himbrechts/AAP

Alice Drury, a senior lawyer at the Human Rights Law Centre, told Guardian Australia that in a time of crisis, trust in government was vital, and for that there needed to be transparency and accountability for all new powers.

“It’s vital that we have assurance that any powers that infringe on our civil rights are time-bound, proportionate and don’t undermine the foundations of our democracy or exacerbate inequality for years to come,” she said.

Any powers that curtailed civil liberties in this time needed to be grounded in solid medical evidence as being absolutely necessary for protecting public health, she said.

“A government that is committed to democracy and protecting our civil liberties will put us in the best position to rebuild a strong, democratic Australia.”

Both Drury and Williams expressed concern that parliament would not be sitting for the next six months while these powers were in place.

“It’s outrageous to shut parliament in the face of so much uncertainty. It is vital that our parliament sit, in a way that is safe to do, so it can make decisions rapidly as this crisis unfolds,” Drury said.

“Millions of Australian workers are making the necessary arrangements to work remotely, our elected politicians should do the same. In these rapidly changing times our commitment to democracy must be steadfast.”

Williams said parliament could come up with innovative ways of maintaining scrutiny.

“Workplaces are doing so, so they should be looking at ways of providing ongoing transparency, ongoing room for questioning and debate, even if it’s using the available technologies. Even if it’s parliamentarians zooming in, there are ways these things could be done that I think are better than suspending parliament.”

In New Zealand, parliament has been suspended for five weeks, but a parliamentary committee, chaired by the opposition leader, Simon Bridges, will meet remotely to scrutinise the government’s response to the coronavirus pandemic.

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