Professor Ian Freckelton, AO KC, PhD, BA (Hons) LLB LLD

Abstract:

Internationally, the world was caught significantly by surprise by COVID-19. Public authorities needed to learn many lessons but so too did the evolving discipline of public health law and how best the balance can be achieved between protection of vulnerable populations and subpopulations and respect for individual rights and liberties. The World Health Organization in 2025 has attempted to synthesise some of these lessons in the “Pandemic Treaty”.

This paper reviews key decisions by superior courts in the United States, the United Kingdom, Canada, Australia,  and New Zealand to identify the trends and lessons needing to be learned by public health law. It is upon these precedents that jurisdictions will draw when the next pandemic challenges the role of government, epidemiology and clinical interventions. Internationally, diverse approaches have emerged. However, measures will need to be taken that encroach upon rights and liberties in an attempt to achieve publicly acceptable legislative and interpretative balances when global threats to health re-emerge. Again, governments will be required through laws and interpretation of laws to grapple with proportionality of responses during a time of crisis. Once more measures such as lock-downs, quarantining, curfews and impediments to freedom to movement, assembly and practice of religion will become controversial and lives will depend upon the capacity of governments, locally and internationally, to command community confidence and secure popular co-operation with measures that in ordinary circumstances would be wholly unacceptable.

This paper reflects on the role of government in public health crises and also the emerging jurisprudence on public health law to provide guidance and protection during pandemics and public health crises of international concern (PHEICS). It wrestles with competing considerations and argues that extraordinary health circumstances require extraordinary responses provided that they are time-limited, transparent and proportionate. It does so by reference to international decisions by courts that have been called upon to evaluate such issues during the course of of the COVID-19 pandemic. Only by learning from past pandemics will respion se to future pandemics be community-acceptable and efficacious.