Following the ‘Health Advice’: what do the courts think?
Marco Rizzi1, Meredith Blake1, Aidan Ricciardo1, Murray Wesson1, University Of Western Australia Crawley 1University Of Western Australia, Crawley, WA, Australia
Abstract
The Australian response to the COVID-19 pandemic entailed legal measures affecting several individual liberties, including restrictions on freedom of movement and mandatory health interventions. Such constraints have been largely implemented through the exercise of emergency executive powers at both state and federal level with limited parliamentary involvement. As public authorities’ decision-making was punctuated by reference to ‘health advice’ as a justification, we seek to interrogate the nature and meaning of such advice.
In this paper, we focus on the logical end point in the lifecycle of the ‘health advice’: its use and relevance to court cases assessing the legality of restrictive policies adopted by government. We investigate how the judiciary uses and scrutinises the health advice adduced in court hearings. To achieve this goal, we undertake a comprehensive review of case law involving alleged breaches or challenges to COVID-19 related restrictions. We broadly classify each case according to three criteria: area of law, level of engagement with, and level of deference to the health advice.
Our findings suggest that judicial engagement with health advice follows neither a conceptual or procedural framework but is reactive in nature and driven by the specific questions put to the courts in individual cases. This represents a conceptual gap in legal reasoning and demonstrates the need for the judiciary to develop clearer criteria to guide decision-making in this area. Given the centrality of executive reliance upon health advice to the broader public health response, this study provides the groundwork for future normative and policy adjustments.
Biography
Dr Marco Rizzi is Associate Professor at UWA Law School where he teaches and researches in the areas of tort law, health law & policy, risk regulation, and law & technology. He holds a PhD from the European University Institute and is currently CI in two major MRFF projects.
Meredith Blake is an Associate Professor at UWA Law School where she teaches and researches in the areas of criminal law and health law, ethics and policy. She has a particular interest in criminal responsibility, end-of-life decision-making and public health regulation.
Aidan Ricciardo is a Lecturer at the UWA Law School, where he teaches into the Juris Doctor degree. Aidan’s academic interests primarily relate to bodily autonomy, particularly for trans and intersex young people. More broadly, Aidan’s research covers health and medical law, evidence law, and diversity in law.