Written by Second prize winner of Dennaoui Lawyers Student Awards: Reem Osman
At first glance the global COVID-19 pandemic may appear solely as a health emergency, however it has also had significant impacts on areas of social and economic importance. The impacts of this pandemic with regard to the law extend from accessibility issues to the judicial system, to public law issues regarding the governments decisions. The unprecedented and evolving nature of this pandemic has brought the core fundamental ideals of the rule of law and democracy, and their operation into question.
The rule of law has been a vital component of legal systems around the world, including Australia for centuries and is one of the foundations of a democratic system. It is also considered to be an abstract concept due to the difficulties which have historically arisen in establishing a concrete definition. Both the rule of law and the democratic system of governance are areas of law which have been adversely impacted by the global health crisis, however this fuels the discussion about what approach is best suited in addressing such circumstances.
CURRENT VICTORIAN EMERGENCY AND DISASTER REGIMES
The current COVID-19 pandemic has resulted in the Premier of Victoria declaring a public health emergency, which consequently enabled him to declare a state of emergency on numerous occasions. The power to do so exists under statute, found in the Public Health and Wellbeing Act. This Act confers power to the Chief Health Officer (CHO) when the state of emergency is declared, to make decisions and directions which are considered to be reasonably necessary in the interests of protecting public health. Further, when a state of disaster is declared, significant power is conferred onto the Police and Emergency Services Minister (PESM) in directing the activities of government agencies. This is also enabled by statute law, found in the Emergency Management Act. 
THE RULE OF LAW AND THE IMPACT OF COVID-19’S ON ITS APPLICATION
Over time, the rule of law has been defined by many legal theorists in multiple different ways, which I will consider when examining the impacts that this pandemic has had on the observance of this principle. One common aspect of these differing understandings is that at its most basic level, the rule of law refers to the ideal that no individual is considered to be above the law, whether they are an ordinary person or a government actor. Basis for this in the Australian legal system can be found in the Australian Constitution, whereby it is stated that ‘all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people in the State’.
The significant transfer of power to the CHO and PESM can be viewed as compromising the requirement of no individual being above the law. With both the judiciary and legislative arms of government being essentially marginalised, the executive is left with control of the administration of laws, and accountability for their importance and reasonableness. It is undisputed that this is due to existing laws that such powers have been established, however the mere existence of a law is no justification for its legitimacy.
In considering a narrow, natural law theory based position in understanding the rule of law, human rights standards and civil liberties should be reflected, observed and protected. One such civil liberty is the freedom of movement in Victoria. Using this to define the legal principle leads to the determination that the powers conferred by Victorian statue on the executive branch in restricting individual movement undermine the rule of law.
A broader, positivist approach is focused on the procedures and equal application of the law. Regardless of whether laws are considered unjust or not, if they are deemed to have followed the proper procedure then they are in accordance with the rule of law. As discussed above, the legislation which allows for the conferment of power on the CHO and PESM underwent due process in the making of the law. Current government practices also undermine this definition, as all directions and regulations introduced in Victoria are introduced by the executive branch, without any of the required accountability mechanisms such as parliamentary scrutiny.
OUR DEMOCRATIC SYSTEM AND THE IMPACT OF COVID-19 ON ITS OPERATION
A democracy refers to a system of governance in which individuals are elected to their positions by those who they are representing. It is often referred to as being the least worst system when referring to other systems of governance such as an autocracy or monarchy. Our representative system of democracy is theoretically designed to ensure that the concerns of citizens from different electoral districts all have their values upheld in the law making processes.
The CHO, who has been tasked with majority of the decision making during this time is not an elected government actor. This raises issues regarding the operation of this system, as regulations and directions are enforced on the public by individuals whom they have not elected into power, but have rather been appointed into the position by other government agencies. However, to members of the public this fact may reduce the legitimacy of the laws and regulations which are introduced, resulting in non-compliance.
In no way does the CHO exercising power uphold a representative democratic system as he is only representative of his medical views. On the other hand, this does not mean that as the CHO is not an elected individual he is incapable of considering the interests of the community in making directions. In addressing such a widespread issue however, individuals such as the CHO who are experts in their field are only able to target a very narrow range of issues that arise. Other issues such as in relation to social relations, our economy, mental health or in accessing justice are overlooked as public health is placed at the forefront.
The trade-off between addressing public health and addressing other equally significant issues raises democratic issues in regard to who is best qualified to make such determinations. As Parliament is not currently sitting, the individuals who would be considered by the public as being most suitable for such a task are unable to do so.
THEORETICAL VS. PRACTICAL APPLICATION OF THE RULE OF LAW AND DEMOCRACY
In practice, this requires the rule by the law rather than the rule by the people. The current emergency and disaster regimes are an example of a rule by people rather than rule by the law. Whilst this is a dangerous concentration of power in the hands of a very select few that has the potential of setting an unconventional precedent, this may be the best approach in such circumstances.
If, for example, Parliament was to continue sitting and was the body through which all pandemic related directions were introduced, bipartisan politics will ultimately lead to inefficient outcomes. In such a situation where time is an important factor, the democratic processes may not be the best method if an effective solution is desired.
We find ourselves in a situation which resembles that of autocratic governance, in which power is concentrated in one individual with absolute power. Whilst the current approach has not led to such a system of governance, having a very small group of majority non-elected individuals in power is much more aligned with autocratic ideals rather than a democracy.
Overall, while the rule of law and our democratic system may be compromised in Australia due to COVID-19, this may be the best possible method of addressing the issue. As the rule of law and democracy are both extremely key aspects in our legal system, consideration must be made with regard to when it is acceptable to depart from acting in observance with these principles. COVID-19 may be considered as one of the exceptions, and is an example of the fact that systems which have been in practice for centuries may not be appropriate in dire circumstances. The current global conditions have resulted in an unconventional subversion from the systems and practices we know, and whilst this can be setting a dangerous precedent it is also important to be able to recognise when it is necessary to temporarily deviate from such norms in the interests of the wider needs of the public.
 Walker, G. de Q., ‘The rule of law : foundation of constitutional democracy’ (1988), Melbourne University Press.
 Public Health and Wellbeing Act 2008 (Vic) s 198.
 Ibid s 199(1b).
 Emergency Management Act 1986 (Vic) s 23.
 Mark Ellis,. ‘Toward a common ground definition of the Rule of Law incorporating substantive principles of justice’, (2010) University of Pittsburgh Law Review, 72, 191–825.
 Commonwealth of Australia Constitution Act 1900 (Cth) cls 5.
 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 12.
 Banerjee, Amitav, ‘Peer Review: A System Full of Problems but the Least Worst We Have (Editorial)’ Medical Journal of Dr. D.Y. Patil University, vol. 7, no. 2, 2014, pp. 117–118.
 Nicholas Horne, ‘COVID-19 and Parliamentary Sittings’ (Parliament of Australia Library, 2 April 2020).