Proportionality and Protracted Emergencies: Australia’s COVID-19 Restrictions on Repatriation Rights Compared

Abstract

The COVID-19 pandemic plunged governments into a world of ‘tragic choices’. With minimal forewarning and limited available infrastructure to enable freedoms in an alternative way, governments were required to restrict rights to meet the more urgent, ‘existential’ need to control threats to life. The nature of the emergency limited the role of courts in assessing challenges that raised rights and proportionality arguments against restrictions. In this article I argue that rights-based proportionality reasoning can nonetheless retain a meaningful role in emergency settings. To do so, I compare how courts in Israel, New Zealand and elsewhere applied proportionality reasoning in public law challenges to restrictions on repatriation rights during the pandemic. I argue that judicial scrutiny of a restriction’s proportionality can intervene in ‘executive path dependency’ — the failure of executive emergency governance to invest in infrastructure over time to render restrictions less necessary. Such scrutiny can also provide for more principled systems of allocating scarce resources. I then demonstrate how various Australian mechanisms — constitutional, administrative and political — failed to supply the same protection in challenges to restrictions on repatriation rights. I trace this to the faith that the Australian system places in popular, majoritarian accountability mechanisms, whose operation is altered in emergency settings.