Why is public health law controversial?
Roger Magnusson1, Sydney Law School, University of Sydney 1Sydney Law School, University of Sydney NSW, Australia
Abstract
A healthy population provides a foundation for a productive economy as well as the conditions for individuals to live healthy lives and to pursue their goals and desires. Since everyone benefits from a healthy population, why is public health law so frequently marked by controversy, rather than consensus and harmony?
Discussions about the definition of public health (and law) suggest that controversy is intrinsic to both fields. Many factors influence the health of the population. Public health regulation requires policy-makers and law-makers to identify and mediate between economic, political and social priorities. This invites debate, and reflects ideological perspectives.
This paper seeks to identify some underlying forms of controversy in Australian public health law. For example, concerns about the over-reach of Covid-19 emergency measures reflect a lack of consensus over the relative value of public health protection, when balanced against competing public and private interests including economic freedom, religious liberty and freedom of association and movement.
Secondly, an important stream of literature explores the commercial determinants of health, including the political activity of harmful industries and their supporters. For example, political activity by the alcohol industry hovers over alcohol regulation, reflecting ongoing strategic efforts to preserve a regulatory environment that prioritises economic freedom and profit-taking over injury prevention.
Thirdly, disputes over public health law can reflect disagreement about the goals that regulation should pursue, and the moral values that regulation should prioritise. Debate over regulation of e-cigarettes reflect these forms of disagreement. Not surprisingly, debates about public health laws can reflect multiple forms of controversy.
Biography
Roger Magnusson is Professor of Health Law and Governance at Sydney Law School. His research interests are in health law, public health law and governance, and law and health development. Roger co-directs Sydney Health Law, the Law’s Schools health law centre, and its Master of Health Law program. Since 2011 he has been an Adjunct Professor of Health Law at Georgetown University Law Center. He is also a member of the Public Health Scientific & Technical Expert Group (STEG) that advises Public Health Division of the Pacific Community (SPC).