COVID-19 and Law: Australian and International Law – Associate Professor Hossein Esmaeili

At the time of a pandemic, lives, jobs, and positions are at risk. Governments respond and attempt to protect their people and the economies with policies and laws. Existing laws may be amended, and additional provisions may be introduced. Both international law, which regulates the relationship between States and international organisations, and Australian law have responded to the COVID-19 Health Pandemic since early this year. In Australia, all levels of government have responded to the international health pandemic by introducing new laws, amending existing legislation, and introducing new policy directions and instruments. The COVID-19 pandemic, in Australia, is subject to both international law and the national laws of Australia.

In terms of international law, there are provisions in relation to the obligations of States to combat health pandemics and cooperate with the World Health Organisation (WHO). The principal international law treaty regulating the obligations of States and international organisations during health pandemics, such as COVID-19, is the International Health Regulations (2005) [IHR). The IHR has 196 State parties and is the only binding international treaty addressing the prevention and control of international health pandemics. The IHR puts obligations on State parties in relation to surveillance[i][1], risk assessment, and effective public health responses[2] to a health pandemic in their territories. The parties must cooperate with the World Health Organisation (WHO) in good faith. A significant legal principle of the IHR is that the Director-General of WHO shall declare a ‘public health emergency of international concern’ and recommend urgent measures to contain the outbreak, particularly its international outbreak. In relation to COVID-19, the Director-General of the WHO declared COVID-19 a public health emergency of international concern on the 30th of January. Both the Government of China and the WHO have been criticised for the delay in making this announcement.[3]

In terms of international trade and commercial transactions, various Countries including Australia, China, the UK, and Singapore have issued legal and policy instruments in relation to commercial contracts (both domestic and international contracts) to excuse and justify the possible delay and non-performance of obligations under contracts due to COVID-19. The Government of China has particularly enacted force majeure provisions from the 30th of January 2020 where companies may obtain a ‘force majeure certificate’ which enables them to justify their delay or performance obligations including with Australian companies. The concept of force majeure may justify, under international law and domestic laws, non-performance of commercial contracts. Clearly, the COVID-19 Health Pandemic is a reason to enact force majeure provisions both in national and international law. Nevertheless, it is expected that after containing COVID-19 Pandemic internationally, there will be significant litigation both nationally and internationally with respect to performance and non-performance of international contracts.

The Australian Legal System has responded to COVID-19. Legal issues arising are concerned with constitutional law, commonwealth legislation, and state and territories law. One constitutional issue implication of the COVID-19 is border closure. On the 5th of April 2020, the Western Australian Government closed its border by the Quarantine (Closing the Border) Directions. This was challenged by Clive Palmer, who was rejected entry in Western Australia on the 25th of May 2020. To enter Western Australia a person needed to meet a certain criterion to meet the ‘exempt traveller’ exception listed in paragraph 27 of the direction, which Mr Palmer did not meet. He has now launched a proceeding in the High Court of Australia claiming the Direction is inconsistent with Section 92 of the Australian Constitution. The case has been officially listed to be heard.[4] Section 92 of the Constitution declares guarantees that provide that trade and commerce shall be absolutely free. Western Australian law is challenged based on two grounds relating to Section 92: (1) that it burdens the freedom of interstate trade and commerce; and (2) burdens the freedom of interstate intercourse. The latter relates specifically to the movement of people.

If the pandemic is not contained, other possible constitutional issues may arise around section 92 and possibly section 51 of the Constitution, where the power of the Commonwealth to make law is specified.

Given that an international health pandemic requires increased communications between countries, international organisations, and interstate relations within Australia, Commonwealth law has an important role. Since the start of the COVID-19 Pandemic, the Federal Government and the Commonwealth Parliament has adopted significant amendments to existing legislation and has issued Orders, directions, regulations concerning COVID-19. An extensive list of these legal and policy instruments can be located on the website of the Federal Court of Australia.[5]

According to the Australian Constitution, Section 51, health issues are within the power of the States and hence the States have responded to the COVID-19 Pandemic by enacting amendments to various legislation. States have amended their public health and emergency legislation in order to properly respond to the effects of a health pandemic. Almost all areas of law including commercial law, family law, criminal law, industrial law, property law, cybersecurity law, court and tribunal structure and operation have been influenced by new COVID-19 legal and policy responses by States and Territories. For example, a list of relevant legislation, amendments to legislation and other legal and policy instruments by the State of South Australia can be found on the South Australian Legislation Page.[6] Further, the Law Society of South Australia has provided resources, information, and updates impacting the South Australian law and legal profession in relation to the COVID-19 Pandemic.[7]

The COVID-19 Health Pandemic has changed the world and many areas of international and domestic laws including Australian law. It is expected that when the dust of the health pandemic is settled, significant litigation may arise both internationally and in Australia.

1] International Health Regulations (2005) Art 5.
2) International Health Regulations (2005) Art 13.
4) For further commentary on this case see: Shipra Chordia ‘Border Closures, COVID-19 and s 92 of the Constitution – what role for proportionality (if any)? On AUSPLUBLAW (05 June 2020)

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