I sought the law and the law is gone: Revoked COVID-19 Directions in Western Australia
Julie Falck, Jessica Kerr and Marco Rizzi
12.05.2023
This is a story about the edges of the law and the limits of accountability. It involves some of the most stringent public health measures ever imposed by an Australian government at the height of the COVID-19 pandemic. Those measures are no longer in force and, in the eyes of the Western Australian (WA) Government, they are accordingly no longer of interest to the public. They have effectively disappeared from public view. The effort required for three academic lawyers to find them, during the submission period for an ongoing independent review of the Government’s pandemic response, was alarming.
The issue of diminished transparency and accountability in the exercise of emergency powers is of course not new. It was elegantly aired in the early stages of the pandemic by Janina Boughey. This post offers a snapshot of how this issue has evolved in WA, and where we stand in 2023.
Some context
WA’s approach to the pandemic required enormous amounts of trust in government. Essentially locked in for two years under rolling states of emergency, WA avoided significant waves of COVID-19 until most of the population was vaccinated. This was achieved in part through a sweeping suite of workplace vaccine mandates, which were acts of the executive rather than the legislature. They took the form of Directions, issued under the scope of delegated authority triggered by a sequence of overarching (again, executive) Declarations of public health emergency. The vaccine mandates epitomise a general concentration of executive power in WA during the first two years of the pandemic, heightened by the ruling Labor government’s overwhelming parliamentary majority. The lack of an effective political opposition became more marked still after the 2021 State election. Despite their coercive nature, the workplace mandates were subject to reduced official scrutiny, and met with widespread (though certainly not universal) public acceptance.
The search begins
Our story begins with Marco Rizzi checking primary sources for an article on evolving attitudes towards mandates over the course of the pandemic, as part of the CORONAVAX project. In October 2021, an existing COVID-19 mandatory vaccination policy had been expanded by Directions to cover about 75% of the WA workforce. This remains the most comprehensive vaccine mandate imposed in Australia. Marco knew that most of these Directions had been revoked in late 2022, but assumed they would not be difficult to find. The Directions had been central to the Government’s preparedness strategy, had provoked outrage in some quarters, and existed under the constant threat of legal challenge. So where were they?
Marco began with the WA Government’s central COVID-19 website, but each link to the Government’s mandatory vaccination policy led to the same ‘404 Page not Found’ message. Some discrete Directions remained accessible – such as those applicable to healthcare workers, still recoverable from the WA Department of Health (DOH) website – but not the key October 2021 Directions. Marco turned to the official WA Legislation website, only to discover that not a single relevant Direction was published there. He then systematically reviewed the Government Gazette for the entirety of October and November 2021: only to find that while the sequence of public health emergency declarations and their fortnightly renewals were gazetted (and thereby became permanently searchable), the Directions which those Declarations facilitated were not. Other than the Premier’s press release, the only ‘official’ sources on the October 2021 mandates that Marco could find were a scanned copy of the Government’s FAQs about the policy (still available on the WA Parliament website) and another Government fact sheet from November 2021, which came up on a general internet search. Now questioning his basic skills as a legal researcher, he turned to Julie Falck, an administrative law specialist.
Julie retraced Marco’s steps, fruitlessly combed through Hansard, and trawled various other WA Government websites. As a last resort, she turned to the (non-official) Wayback Machine. Searching point-in-time ‘snapshots’ of the WA Government’s ‘Document collections’ website turned up some, though not all, of the Directions issued in 2020-2021. In the circumstances, finding the key October 2021 Directions felt like a hollow victory. Convinced that such important legal documents would not have been deliberately removed from public access, Julie decided to reach out directly to government. She hit an immediate roadblock when it transpired that the enquiry/feedback form on the WA COVID website – to which the ‘404 Page not Found’ messages referred – did not exist.
The independent review of WA’s COVID-19 management and response
Some further context is now required. Julie and Marco’s searches coincided with the (short, and now closed) public submission period for the independent review of WA’s COVID-19 management and response (the review). The review’s terms of reference clearly encompass the October 2021 vaccine mandates – not only in terms of their effectiveness and timeliness as public health measures, but also from the perspective of intra-governmental communication and cooperation, as well as communication and engagement with industry, communities and the general public. The review was set up to exclude any specific matter before a court, but otherwise invited submissions from ‘the public sector, industry, businesses and the community’, as well as envisaging interviews and workshops with ‘invited key stakeholders’. There was, however, no reference material or links provided to facilitate the drafting of submissions, other than a brief unreferenced backgrounder on how the Government perceived its own response to the pandemic. This was followed by a list of suggested questions for submitters to address, including questions about levels of ‘satisfaction’ with the accessibility of Government communications about COVID-19. The backgrounder was deleted from the website as soon as the submission period ended.
Julie used the only contact information provided on the review website – an email address within the Department of Premier and Cabinet (DPC) – to request a copy of the Directions. A somewhat disconcerting reply to this email suggested that she lodge a freedom of information request with the DOH. Someone within DPC may have reflected on the wisdom of this suggestion, as shortly afterwards Julie received a phone call to confirm that she did indeed mean all the Directions, and all their versions (she did). A week later, the DOH’s Communicable Disease Control Directorate provided the complete suite of Directions via email. In an attached letter, however, the Director noted:
‘As the Directions were revoked, they are not available publicly.’
Feeling better about our research skills but concerned about what this exercise revealed, we took stock.
Exempting the Directions from formal publication
We had assumed that there was a statutory requirement to gazette the Directions at the time they were made, creating a formal, public record of their existence. But there was not. Section 41 of the Interpretation Act 1984 (WA) imposes a general requirement to publish ‘subsidiary legislation’ in the Gazette. Whether or not an instrument like a direction constitutes ‘subsidiary legislation’ depends, in WA, on whether or not it has ‘legislative effect’, which cannot necessarily be answered with certainty in advance. But, in August 2020, the Public Health Act 2016 (WA) was amended to create a specific exemption for Directions of this kind from any publication requirements that ‘might’ arise under the Interpretation Act. Instead, the responsible Minister was directed to publish Directions in a manner considered ‘suitable in the circumstances of the serious public health incident’.
Hansard reveals that the Government was pressed on transparency and accountability issues arising from these amendments during consideration of the bill. Parliamentary Secretary Alanna Clohesy’s response was that requiring Directions to be gazetted before becoming operative would interfere with the speed and flexibility necessary in an emergency. She repeatedly asserted that transparency was not an issue because all Directions would, in fact, be published on the DOH’s website.
The Government’s approach to publication
We do not argue that initial publication of these Directions on a government website was inherently ‘unsuitable’ in the fast-evolving COVID-19 context. There was no shortage of informal publicity, through the kinds of communication channels (press conferences and social media platforms) which appear to be the focus of the current independent review. These communication initiatives appear to have been effective in conveying the ‘gist’ of the vaccine mandates, although they gave little insight into the legal basis of the Directions or their actual language.
We can also see how removing the Directions from the COVID-19 website post-revocation might have been understood as simply a practical measure. Considering how much government energy was absorbed by preventing (or at least minimising) the spread of COVID-related misinformation and confusion, it is understandable that officials would be anxious to discourage reliance on out-of-date sources. And yet, several related (but informal) Government sources remained accessible long after they were superseded, such as the November 2021 fact sheet mentioned above.
We have no intention of adding to the abundant conspiracy theories circulating in COVID’s wake. We are not suggesting that the WA Government is hiding anything incriminating about these Directions. We do, however, consider that this sequence of events reflects poorly on the WA Government in transparency and accountability terms, and that this warrants acknowledgement both within and beyond the current independent review process.
We see it as beyond question that the vaccine mandates imposed in October 2021 formed a significant part of the Government’s overall COVID-19 response, and that their text should remain permanently publicly accessible. We would have thought this statement self-evident, if not for the unequivocal assertion to the contrary Julie received from the DOH: ‘as the Directions were revoked, they are not available publicly’. What follows is a brief summary of why we regard the DOH’s position as unacceptable.
The importance of accessibility
To start with the review process itself: how can a government’s response to a crisis be effectively scrutinised without access to the documents forming the legal core of that response? The suggestion by DPC that a freedom of information request might be required to access a legislative or quasi-legislative instrument is objectionable in principle, but particularly problematic in the context of a fast-approaching deadline for submissions on the subject matter of the request. To ensure a meaningful public submission process, the review website should have proactively facilitated access to material like these Directions. We doubt we were the only prospective submitters who were discouraged, and submissions which were made may have been under-informed, or even misinformed, regarding the relationship between the informal communications prioritized by Government and the underlying legal position. This does not bode well for the depth and credibility of the review process.
At the risk of stating the obvious, there is a more general point about upholding the rule of law, which requires that rules are accessible to those they govern. This was what struck our third author, Jessica Kerr, who spent years working on improving access to legislation in East Africa. As foreshadowed above, it may not have been obvious that all or any of these Directions were ‘legislative in effect’, as required to trigger the standard publication requirement in the WA Interpretation Act. There has been some uncertainty in other states about whether orders of this kind are ‘laws’ at all. However, the WA Government’s decision to amend the Public Health Act to specifically exclude the standard publication requirement strongly suggests that the Directions were conceptualised in these terms. So does the tenor of judicial consideration of the Directions to date. What is unarguable is that, when in operation, the Directions had real and significant legal consequences for many WA residents. Their unusual, ephemeral status did not in any way lessen these consequences.
Mandates established under these Directions have already been the subject of multiple court rulings in WA, and challenges seem likely to continue, even if, as Boughey notes, these are instruments inherently ‘more suited to political accountability mechanisms than to merits or judicial review’. A peculiarity of current WA law, as explained by our colleague Aidan Ricciardo, is that instruments like the Directions cannot be judicially noticed, but must be independently proved. If our experience is anything to go by, an individual wishing to challenge a revoked Direction may have to resort to a freedom of information request to obtain a copy to tender in evidence (or even to confirm its terms), which is objectionable from an access to justice perspective.
Future approaches
The WA legislature has given conflicting signals about how it might approach similar situations in future. We now have a Legislation Act 2021 (WA), consistent with the trend in other Australian jurisdictions, which aims to make WA legislation ‘easy to find, use and understand’ (s 3(1)). Under provisions yet to come into force, the WA Legislation website is to become a permanent repository of all written laws as made and amended and will then serve as a primary ‘official’ source for all purposes, including in court. This Act represents a welcome and unequivocal commitment to improving the state’s public legislative records. It is possible – but yet to be clarified – that the kind of Directions we are concerned with will be brought within its scope, in which case there should be no further cause for concern about their accessibility.
However, in October 2022 the Emergency Management Amendment (Temporary COVID-19 Provisions) Act 2022 (WA) came into force, simplifying and expediting the process of making and maintaining sui generis ‘COVID-19 declarations’ (effectively, emergency declarations) until the end of 2024. We are not seeking to be alarmist, but we do see this development as risking the normalization of ‘rule by directions’ as a form of emergency executive action exempt from many of the typical features of regulation that safeguard transparency and accountability. As noted, concerns in this sense have been raised from the start of the pandemic. Almost four years later challenges to government accountability persist. The prospect that the October 2021 suite of Directions might be taken as the model for future emergency responses makes it critical that they remain accessible and amenable to scrutiny in the interim.
Conclusion
Where does this leave us? We genuinely look forward to the outcome of the independent review, but we are concerned by the barren informational landscape in which the review was set. Failure to preserve and present the text of core COVID-related Directions for post-facto scrutiny creates the risk of skewing or discouraging submissions, which can negatively impact the value of the review. We will keep a watchful eye on the fate of publication requirements for Directions under the new WA Interpretation Act, in the hope that lessons from the extraordinary initial pandemic years have been learned. Meanwhile, we note that removing the revoked Directions from public view may have been technically lawful, but, as every law student knows, lawfulness is a low bar. We have come to expect more in good governance terms, and so we should. There is a warning here for those of us inclined to optimism about the baseline commitment of executive government to transparency and the rule of law.
Julie Falck is a Lecturer at the University of Western Australia Law School.
Jessica Kerr is a Lecturer at the University of Western Australia Law School.
Marco Rizzi is an Associate Professor at the University of Western Australia Law School.
Suggested citation: Julie Falck, Jessica Kerr and Marco Rizzi ‘I sought the law and the law is gone: Revoked COVID-19 Directions in Western Australia’ on AUSPUBLAW (12 May 2023) <https://www.auspublaw.org/blog/2023/5/i-sought-the-law-and-the-law-is-gone-revoked-covid-19-directions-in-western-australia/>