Dr David J. Carter1
1Law | Health | Justice Research Centre, Faculty Of Law University Of Technology Sydney, Broadway , Australia
The powers available to the state in the name of advancing or protecting the public’s health or human biosecurity are extensive and highly elastic. These powers include disease surveillance; the power to compel provision of information; the monitoring, prohibiting or compelling of particular behaviours; involuntary social distancing measures including detention, isolation and quarantine; and, finally involuntary medical testing and treatment.
Drawing on the findings of an empirical project on the use of public health and human biosecurity law in Australia, this paper provides the first comprehensive account of the use of these coercive public health powers by Australian state and territory governments and their public health apparatus.
The overarching claim made by this article is that the use of coercive public health and biosecurity legal powers in Australia is active but not currently accompanied by sufficient transparency or public accountability for their use. Moreover, the research reported here reveals some serious concerns about the use of these powers. This includes, amongst other things, evidence of the indefinite detention of multiple individuals by public health authorities, public health orders made without time limits and never rescinded, and the practice of ‘pre-emptive’ warrants issued for the arrest and detention of individuals who had not yet failed to report for isolation and thus had not absconded.
This research reveal a pronounced resistance to disclosing the use of these powers by a number of jurisdictions and a failure to maintain adequate records of their use by others. This lack of publicly available information must be rebalanced in light of the strong public interest arguments for transparency and accountability.
David Carter is a lecturer in the Faculty of Law at the University of Technology Sydney where he focuses on the legal, regulatory and governance challenges involved in the delivery of safe, effective and sustainable healthcare services. At present, he teaches and writes on the regulatory practice of health law, public health law and criminal law, applying theoretical and empirical methods in aid of advancing legal and regulatory strategies for reducing the burden of healthcare-related harm and death.