In the interests of public health, governmental responses to COVID-19 have seen extensions of the powers of police and other regulators and everyday activities effectively made illegal.
With changes being made at high speed, many regulators are finding themselves in a very different world. Issues of how rules are to be enforced, whether police have the capacity to manage the delicate task of applying blanket measures in a flexible way, and who is best placed to communicate the new rules to the public are in flux.
An ANZSOG/ National Regulators Community of Practice (NRCoP) webinar on 7 April explored the legal basis for regulations imposed to deal with pandemics and other emergencies, and how regulators on the ground can meet the policy goals of the new normal.
A panel made up of ANU College of Law Adjunct Professor Dr Michael Eburn and Pro-Dean of the University of Sydney’s Law School Professor Cameron Stewart, was facilitated by Pauline Ireland, the former Human Services Regulator at Victoria’s Department of Health and Human Services.In keeping with “social distancing”, it was the first online-only event in the history of the NRCoP, and attracted almost 200 virtual attendees, who were able to contribute by putting questions online to the panel.
Ms Ireland said that recent weeks had seen the introduction of measures which affected basic rights such as the freedom of movement and raised questions of how regulators should operate in an unprecedented emergency.
Dr Eburn began by outlining the emergency powers already possessed by police and fire services to cope with natural disasters, such as their ability to set up roadblocks and issue evacuation or stay in place orders.
“The current situation is much broader. No matter how serious fire or flood is, it is a localised emergency, not one that affects the entire population,” he said.
“In addition, in an emergency, your actions really only affect you, and that is not the case in an infectious disease pandemic.”
Watch: Regulating the population: Is COVID-19 making enforcers of us all?
Professor Stewart said there was a range of legal approaches to regulating infectious diseases that posed a risk to the community – in Australia these dated back centuries to the control of leprosy but really came to the fore during the Spanish Flu pandemic in 1918. The laws can place a range of restrictions on people based on an assessment of risk – including compulsory treatment and quarantine in some cases.
“But in recent years these laws have only been applied to a handful of people, so it is very hard to draw lessons for a pandemic,” he said.
The need for better communications and flexible policing
Dr Eburn said that the key lessons for regulators from previous emergencies had been flexibility and encouraging community resilience.
“Enforcement really has not been an issue in previous emergencies. When we have been talking about roadblocks, there has always been a level of flexibility. Police have had to come to grips with letting residents or homeowners go through because they have a legitimate interest in doing so.”
He said that in the case of the current pandemic, the best approach for police would be “to show the stick, but not use it” because it would only take one bad event to shift public opinion, and community trust and compliance are absolutely critical.
A member of the webinar audience asked Dr Eburn and Professor Stewart, how governments would ensure that “listening goes both ways, and that regulators can adapt” to community needs.
“In the end, we rely on the professionalism of regulators. There are issues with this for the police, who are pretty good at telling people what to do and expecting them to do it, but not necessarily as good at listening to people’s feedback,” Dr Eburn said.
Professor Stewart agreed, saying a “heavy-handed approach” risked undermining support and that police and other regulators needed to be sensitive to the circumstances of individuals trying to deal with changes to their lives.
While there has been a politically bi-partisan approach to laws and communication, both panelists raised concerns about conflicting messages and the prominence of the police.
Professor Stewart said that while he did not want to be too critical of officials undertaking a difficult communications task, it would have been more effective if there was an agreed pandemic plan ready to go in an emergency, outlining possible actions.
“We are at the mercy of the federal system we have, but there has been too much churn at the communications level,” he said.
He said that communications around regulation and restrictions on behaviours should, as much as possible, be handled by chief medical officers, rather than have police ”leading the charge”.
Dr Eburn agreed, saying he was concerned that in NSW, the Police Commissioner had emerged as the key spokesperson, rather than supporting health experts and the Premier.
Upcoming ANZSOG/NRCoP webinars
Regulating at the border
21 April 2020
With issues of federalism in the fore, what can we learn for our current circumstances from the way practicing regulators have long been innovating to smooth out inconsistencies between different regulatory regimes?
Learning to be better regulators – the G-Reg journey
5 May 2020
This webinar will give an outline of New Zealand’s groundbreaking and comprehensive approach to regulatory leadership, culture, practice and workforce capability. Tony McKenna from Skills NZ will take participants through New Zealand’s journey to ‘regulatory stewardship’.