How can rights-based reasoning intervene in ‘executive path dependency’ in emergency settings?
Pleased to share my paper in the March issue of Sydney Law Review on repatriation restrictions (eg #StrandedAussies & #GroundedKiwis) during the pandemic.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4448452
This paper was largely focussed on the Australian experience and repatriation rights, but also sketches a tentative comparative account (Israel, New Zealand, Germany and elsewhere) of judicial treatment of pandemic restrictions over time.
Proportionality considerations play a complex role during ‘classical’ emergencies (uncertainty, urgency, limits of state capacity) and this reflected across jurisdictions during the pandemic. /2
With limited available infrastructure to enable freedoms in an alternative way, governments needed to restrict rights to control threats to life. The nature of the emergency limited courts in assessing challenges raising proportionality arguments against restrictions.
I looked at the extent to which rights / proportionality reasoning still retained a meaningful role during the pandemic & how courts in Israel, NZ & elsewhere applied proportionality reasoning to restrictions on repat rights /3
I argue that judicial scrutiny of a restriction’s proportionality (1) can intervene in ‘executive path dependency’ & (2) provide for more principled systems of allocating scarce resources.
I compare this with Australia (where the constitution doesn’t entrench express rights). I looked at how other accountability mechanisms — admin & ‘quarantine federalism’ — engaged with restrictions on repatriation rights (eg, India travel ban, arrival caps). /4
Liz Hicks