Talking Point: ‘Tinpot premiers’ are ripping up the rules

The capricious nature of state and territory rulemaking in dealing with Covid is dangerous and undermines the nation’s rule of law, writes GREG BARNS.

RESPONSES by government and the community to the Covid pandemic have undermined liberal values and the rule of law.

It has been necessary, say the proponents of the governmental response and those in the community who argue that the right to life means that there should be a ‘whatever it takes approach’ to ridding us of the pandemic. But there are important voices, as opposed to populist extremists such as Clive Palmer and conspiracy theorists, questioning the illiberal approach as the pandemic rolls on.

One of the unfortunate impacts of Covid in Australia is that we have seen “tinpot premiers”, as an old and wise political hand termed them in a conversation with this columnist, ripping up rules when it suits, playing politics and causing enormous and tragic consequences for individuals and communities.

Dominic Perrottet, the new-ish New South Wales Premier put it best when, in an address to the National Press Club on December 7, he observed that there has been, in the response by government to Covid-19 a lack of clarity about who is responsible for what, “buck-passing, blame-shifting and, sometimes, hyper-parochialism”. “We’re all Australians and in times of crisis, we do best when every state works in the national interest,” Mr Perrottet argued.

NSW Premier Dominic Perrottet. Picture: NCA NEWSWIRE / FLAVIO BRANCALEONE

Watching one of his media conferences last week, one was impressed by Mr Perrottet’s calmness and determination to maximise freedoms as much as possible, despite increasing case numbers. As he rightly observed, a focus on case numbers – which is an obsession of some of his colleagues and many in the community – is the wrong approach to take to how policy should be made in this crisis. If only other state and territory leaders were as rational as Mr Perrottet.

Compare him to the conduct of Western Australia’s Mark McGowan who has pandered to that state’s default position of isolation. Or Queensland Premier Anastasia Palaszczuk who has never missed an opportunity to slam shut borders and enforce rigid rules that have caused serious mental health issues.

As The Australian observed in its editorial on December 13, while Ms Palaszczuk has recently boasted that “Queenslanders have been very fortunate in not experiencing the waves that we’ve seen in other states,” she “does not seem to have learned the lesson of the often erratic, sometimes cruel restrictions imposed on Queenslanders and others locked out. Remember the steady flow of cases involving the sick and the dying, and those who pleaded to come for a bedside visit? Requests for travel exemptions were denied or went unanswered until media exposure shamed Queensland Health into doing the right thing. Approval for visits by Hollywood stars and AFL luminaries, however, was a model of efficiency.”

Premier Peter Gutwein. Picture: Chris Kidd

In Tasmania, the rules set by Premier Peter Gutwein are sometimes unintelligible, confusing and lead to innocent people being criminalised. The Covid rules are not scrutinised by the Tasmanian Parliament, which has failed to hold the executive to account for its constant shifting of the regulatory goalposts.

The capricious nature of state and territory rulemaking in dealing with Covid is dangerous because it undermines the rule of law. In 1964, the great US legal philosopher Lon Fuller described the antithesis of a legal system. This occurs when there is a failure to make rules understandable, where rules are contradictory and when there is constant changes in rules. Fuller could have been describing the shambles that is Covid rule making by premiers and chief ministers over the past two years.

In addition to the danger to the rule of law posed by government responses to Covid there is also the disturbing shaming of those who are not vaccinated or who, exercising their right to bodily integrity, are refusing to be vaccinated. Writing last week on The Conversation, the Australian-born Oxford University philosopher Julian Savulescu and his colleague Alberto Giubilini observed: “We should remember why medical ethics has designated autonomy and consent as foundational ethical values. Even where there is a clear expected benefit, and only very rare side effects, these won’t be shared equally. Many will have their lives saved. But some people will be the ones who suffer the harms. This a strong reason for respecting people’s decision about what risks to take on themselves.”

Savulescu and Giubilini note that “[b]arring any public health issue, an individual should make the decisions about health risks, whether they are from the disease or vaccines. Shaming them disregards the complexities of the distribution of risks and benefits, of the way individual values affect individual risk assessment, and of personal circumstances shaping individuals’ views on vaccines.”

There is wisdom in these arguments and they are important because in a liberal society respect for the right of individuals to control their own lives should never be cast aside. Collectivism leads to oppression. If you value liberalism, we live in dangerous times.

Hobart barrister Greg Barns SC is a human rights lawyer who has advised federal and state Liberal governments