• Nick

Why vacillating government pandemic rules are so risky

Updated: May 19


In 1964 legal theorist Lon L. Fuller published The Morality of Law which included eight requirements of law.


These eight requirements of law set out the basic characteristics that laws should possess in order to avoid failure. The characteristics are explained and discussed in considerable detail, however, in short are as follows:


1) Generality, meaning that particular classes of actions should be treated similarly;

2) Promulgation, meaning that the rules should be properly enacted and publicised;

3) Prospective and not retrospective;

4) Clarity;

5) Non-contradictory;

6) Possible, meaning that they must be reasonably achievable;

7) Constant, meaning that they must not change too frequently;

8) Congruence, meaning that authorities should follow the legislation closely.


Fuller’s requirements attracted a substantial amount of attention (and critiques) and they have also captured a strong following. After only a few decades, his writings were being taught along with Greek philosophers in jurisprudence. When I was first taught of Fuller’s requirements of law, I was not awestruck from the concepts themselves but more so by the fact that these obvious elements had not been codified earlier (or at least not as clearly). A statement made by my mechanic recently, referring to my brakes, which had been squealing for six or so months, was “you’ll find it hard to drive without brake-pads”. Fuller’s requirements are the lawyer’s version of my mechanic’s maxim, and should be better appreciated by politicians.


Inconstant


In my home state alone there have been no less than 25 separate types of orders made by the health minister in relation to the coronavirus pandemic, since around early 2020. Each of different types has been subject to various amendments in the same period, and choosing one type at random I have seen that there have been 25 amendments to that single type of order. In other words, to stay abreast of one type of health order during this period, one would be required to come to terms with monthly changes to an already technical and lengthy document.


Around a month ago I was asked, to provide advice on a specific question regarding isolation requirements. The first step in providing advice on an esoteric area of law is to familiarise oneself with the current and relevant laws. In Australia, there are publicly available registers of legislation (including the public health orders) which are the go-to for anybody seeking the primary sources of law. The sheer volume of legislation enacted (or ordered) during the pandemic period is so vast that I cannot understand how a lawyer would be expected to concurrently understand the laws much less an ordinary member of the public.


The specific scenario I was asked to give advice on was that a person had tested positive to coronavirus in another state ‘State A’, wanted to know whether they could return to their residence in their home state ‘State B’. The essence of the relevant laws for State A said that a person could elect to isolate for 7 days within their place of residence, meaning that they could travel home. The laws of State B, however, were worded in such a way that did not recognise the type of test that occurred in State A (bear in mind that the states’ laws only operate within their territorial limits), accordingly, these fellows were scot-free to travel across the state’s border and were not required to isolate as soon as they had done so.


Incongruent and unclear


When researching the relevant laws for this advice, I called the government body who was ‘responsible’ for providing advice to the public on coronavirus legislation. I stepped through this scenario and the legislation with several staff members, as some were far too confused to follow the nature of the enquiry, and when I reached one staff member who could understand it, I was advised that whilst I was technically correct, I was reminded of the morally right thing to do. I retorted that I am a lawyer and I don’t have a soul. Putting aside my lack of a soul, the erudite staff member’s argument shows a deeper complexity to the situation than the mere technical aspects of the isolation rules. Without going into too much details of the staff member’s arguments, he gave examples of where not isolating could pass on the virus to elderly family members and other ‘high risk’ people.

In reflection, in stating that there was a moral obligation to isolate (despite not being legally obliged to do so), the staff member was essentially proposing that


there was a duty of care to the public at large, and that to fail to isolate in circumstances where someone believes they have coronavirus is tantamount to negligently causing harm to others. I think the staff member was accurately conveying the government was seeking, and failing, to legislate.


It's criminal and lacks generality


Generally speaking, in the western legal sense, a person only has a duty of care (to the criminal standard) in select circumstances. Where governments mandate that a person must isolate, stay at home or otherwise quarantine, and where such mandates carry significant criminal penalties, this fundamentally provides that person has an incredibly broad duty of care to the public at large. Conversely, it is only when “conduct is so gravely in error and carries with it such a high risk of serious injury that it deserves to be punished as a serious criminal offence”. Giving this a bit of context, this definition has been derived from many centuries of lawyers and judges arguing on grey areas of law. The meaning of criminal negligence is intentionally non-definitive and non-expansive, that is where someone is accused of being criminally negligent it must be argued in court in front of a room of people who will consider each accusation in its full context thoughtfully and without emotion.

By peripatetically legislating orders and laws, and attempting to definitively list circumstances where a person with, or who may have, coronavirus is (potentially) criminally liable for the harm they do to others, governments across the western world have effectually attempted to lower the minimum bar of duty of care not just by a peg but have sought to remove the bar altogether.


Going back to my previously mentioned squeaky brakes, If I were to have hit a pedestrian for the reason of my ineffective brakes would that make me responsible for their death? What if I had ignored the mechanic’s advice and continued to drive


with knowingly ineffective brakes? What If I was driving in a medical emergency? What if I could not afford to fix my brakes? The point I am attempting to make is that criminal duty of care is a grey area of law and that each example should be treated with adequate consideration and thought. Legislating that all people with coronavirus symptoms must self-isolate until they have registered five negative rapid-antigen-tests, or stay at home indefinitely, is similar to legislating that all vehicles that show signs of brake deterioration must not be driven until a registered mechanic certifies that the vehicles brakes are in suitable working order. Considering that a person who is unable to work for a week would lose substantial amounts of income, and that engaging a mechanic to attend the vehicle and perform all required works might be the less onerous option, please tell me why one of these hypotheticals is a far-fetched parody and the other is reasonable and ‘safe’.


Looking to Fuller’s requirements on generality, which is that similar actions should be regulated similarly, rules relating to coronavirus are utterly diametric when compared to other similar contagious diseases. Firstly, to explain Fuller’s meaning of generality, let’s say that the fine for speeding 5 miles per hour over the limit is $200.00, then it would be reasonably general to suppose that the fine for going 10 miles per hour over the limit is $400.00. If the fine for the latter were 5 years imprisonment, this would be outrageous and disproportionate (not only to the crime) but to the penalty for similar types of crimes.


Now consider that if, in the place I call home, I flout the isolation rules for coronavirus that I can be charged $11,000 and can spend 6 months in prison. Whereas, if I have influenza, hepatitis, meningitis, tuberculosis, cholera and (let’s say) the black death, I’m free to do as I please and I might just go visit some nursing homes.


Impossible


A few years back, I had just moved in with my then partner. We were both incredibly poor and scrounged together all our saving to purchase a mini fridge and a few pots and pans. I got my first decent job, a job which I needed to work at to survive. Unfortunately, during my first week I got hit with the worst bout of flu I have ever had. I remember sitting in the office, twitching and shaking with a runny nose, constantly applying hand sanitiser and sitting away from the other staff members for their safety, doing my best to appear like a decent worker. I still went to work every day, because I had no other option available to pay for my rent and food.


Considering the magnitudinous increases to inflation and the cost of living, despite if there are government allowances available, there are large portions of society who are strapped for cash and literally need to work. If someone in this class is hit with a polarising option to either flout the law and pay the rent, eat and otherwise remain solvent or stay at home and wait for an eviction notice, which do you think they will choose?


Why coronavirus rules are so risky


Fuller’s requirements should be used as a checklist by law-makers. My mechanic has a checklist he goes over my car with to make sure every major system is in a reasonable state of repair. He appreciates that I can have a pristine high power v8 engine, but it doesn’t make a lick of good if I can’t brake or see the road in the rain.


The massive proliferation of poorly codified rules as to coronavirus, subject to extemporaneous and frequent reactionary changes, has led to a western world where it is not only impossible for the public to follow the gist of the rules but also impossible for agencies to enforce them. The specific consequence is that the rules won’t be followed, either consciously or accidentally. The broader consequence is that the public will lose faith in law as a whole. When a person knowingly breaks a law and is not punished, it diminishes the effect of law as a whole. If I frequently drive over the speed limit without getting fined, I’m not going to rob a bank, but I will conclude that the police in my area aren’t very good at their job. What conclusion would a whole society make about coronavirus laws?

In order for a society to adequately function, there must be a reasonable adherence and respect of laws in place. In order to adhere to a law, a person must have a decent grasp of the meaning of that law. By enacting laws which run a high risk of failing, governments risk losing the faith of those they seek to regulate.


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