The development and widespread distribution of a COVID-19 vaccine was heralded through much of 2020 as the beacon of victory that would dispel the gloom of the virus, herald its imminent defeat, and deliver us from the perils of contagion. But soon enough, distribution became embroiled in a political stoush. A dose shortfall in Australia and a revolt from doctors over inoculation payments threatened to delay the immunisation program.
This review appears in the latest Quadrant.
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Alongside the already established practices of social distancing, mask wearing and hand sanitising, vaccination is clearly one more important weapon in the arsenal. However, due to very low rates of community transmission here, many may not regard vaccination as an essential measure for tackling the pandemic. Even so, without it, travel, commercial and other restrictions are likely to postpone resumption of anything like normal life.
Rollout of the vaccine in Australia has posed a series of moral questions about how best to achieve maximal levels of community protection. Some research suggests that vaccination might merely impede transmission of COVID-19 but not confer immunity. Some have mooted the possibility of imposing mandatory requirements for vaccination, but that would threaten the established common-law right to refuse medical treatment.
The thorny question of vaccination is the latest issue to add moral complexity to some of the controversial strategies adopted by governments for tackling COVID-19. With one hand, the state confers rights and freedoms; with the other it appears to withdraw them when, apparently, the greater public good demands it. “We’re all in this together,” we are told repeatedly by Prime Minister Scott Morrison and others.
This new collection of essays, Fundamental Rights in the Age of COVID-19, edited by Augusto Zimmermann and Joshua Forrester, calls into question this kind of sedative statement. From the start, it argues, government over-reacted and over-reached in its response to the virus, shutting down the economy, stifling the institutions of civil society, and forcing millions of healthy citizens into prolonged, dispiriting and lonely lockdowns.
The book assesses the impact that government measures introduced to combat Covid have had on rights that are defined more broadly than the legal conception of “human rights”. “Fundamental rights”—as argued by one of the contributors, Monica Nagel—are best thought of not as a legal construct but as “human needs essential for one’s own development, ranging from basic physiological needs to self-actualisation”.
Closures of schools, pubs, restaurants, gyms and places of worship, together with forced lockdowns, combined to deny people for extended periods the fundamental needs they have for social interaction, contact with family, self-esteem that comes from employment, and fostering the well-being of children through education. Human flourishing depends on free exercise of these fundamental rights. But government action eclipsed all of them. Each of the contributors to this collection—drawn widely from Australia, New Zealand, the United States, Poland, Hungary, Italy and Brazil—is unequivocal about the social and economic damage that this action has inflicted on society.
Many of the essays recount the initial emergence of the virus and the early responses of government; and because the authors share an indignation about the same issues, there is a certain amount of repetition. At the same time, this lends an important emphatic tone to the essays.
Whereas citizens in countries such as Australia (in particular) generally endorsed strict measures that helped ensure community transmission rates remained low, the authors of these essays express dismay at the readiness with which freedoms were relinquished. For the most part, it seemed, citizens wanted government to keep them “safe”, regardless of the price paid.
This collection performs a valuable service in reminding us just how dangerous coronavirus really is. Whereas those who are vulnerable tend to be the elderly and those with pre-existing cardiac or pulmonary conditions, younger, healthier people do not for the most part succumb. Assessed across thirty-two locations, Covid has a median infection fatality rate of around just 0.2 per cent. Yet for that, government shut down the economy and civil society.
The foolishness of the argument that such a view expresses nothing more than a heartless commitment to capitalism is dealt with swiftly by James Allan: “To care about the economy is to care about human life, since the economy is how life is sustained. It is a source of meaning, as well as sustenance, binding humans to each other in a web of voluntary exchange.” In other words, economic costs cannot be separated from social costs.
Yet such is our yearning for safety and the avoidance of any risk, that we fail to see how such attitudes stifle rather than foster a healthy civil society. Indeed, it is that very yearning to be kept safe by government—and by what Rocco Loiacono calls “the dictatorship of the health bureaucracy”—that has blinded us to the emergence of an oppressive authoritarianism. This has rendered us reckless as to the ensuing damage to liberty.
Restrictions on international arrivals remain controversial—especially when they frustrate attempts by Australian citizens to return to their own country. However, it was the closure of state and territory borders that represented the most egregious—and probably illegal—exercise of power by premiers and first ministers. Essays by David Flint and Anthony Gray examine key constitutional questions raised by these arbitrary and capricious closures.
Section 92 of the Australian Constitution was intended by the framers to forge a single nation from a loose collection of colonies. But neither the spirit nor the letter of the Constitution counted for much as fears of contagion were fanned and drawbridges around the nation were hauled up. A coherent national identity was suddenly seen to be illusory as the country formerly known as “Australia” fragmented into a group of dis-federated colonies.
So much for the framers’ vision of “a modern, integrated nation of one people”, mourns Anthony Gray in his detailed examination of Section 92. Indeed, when a Section 92 challenge to Western Australia’s border closures was mounted before the High Court in 2020, the justices found that the closures did not a raise a constitutional question at all and that the imposed burden of travel restrictions was justified by a health emergency.
None of the contributors to this collection denies that government action was warranted by the health risks posed by COVID-19. Rather, this action lacked proportionality, as Augusto Zimmermann argues. His concern—shared by all the contributors—is that the impact of coercive, cruel lockdowns, combined with that of closing down civil society, will have a vastly greater negative impact on human well-being than the virus itself.
And for what? Zimmermann thinks our politicians have been driven less by considered, evidence-based strategy than “by an urge to be seen to be taking action”. And it is certainly true that after Scott Morrison was caught on camera relaxing in Hawaii while bushfires raged back home, he was determined never again to be judged for not taking action. But while popular with many, the action taken has damaged the country, this collection argues.
COVID-19 is not finished with us yet. Now that the vaccination program is unlikely to be complete until early 2022, and therefore restrictions are likely to continue until at least then, the long-term impact on the economy and civil society will continue to be felt. With jobs lost, educational opportunities forgone, and fears that a growing mental health crisis looms, the challenging task of rebuilding a healthy civil society will not be easy.
This collection performs a valuable and timely service by highlighting the scope of that challenge and exploring in depth many of the complex moral and legal puzzles that now confront us. We will not resolve these puzzles easily or quickly. But they cannot be ignored because of the imperative to weigh competing claims about the rights we bear as citizens and the duties we owe one another in preserving the common good.
Fundamental Rights in the Age of COVID-19
edited by Augusto Zimmermann & Joshua Forrester
Connor Court, 2020, 440 pages, $44
Peter Kurti is Director of the Culture, Prosperity & Civil Society program at the Centre for Independent Studies, and Adjunct Associate Professor of Law at the University of Notre Dame Australia.