Unprecedented Unlawfulness in Covid Times

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administrative law
Architecture with Mask

Covid 19 has brought unprecedented times to Australia and the world.  Is this sometimes an excuse for lack of transparency or unlawful action by government?  What does our administrative law lens tell us?

Administrative law compliance is fundamental for government administrators, and private operators in regulatory environments.

I always say this.  That’s what our training and video series is about.
I also think that administrators should be transparent about the legal requirements they impose – so that the community can understand what they can and can’t do, and the legal basis for it.

That will reduce the chance of manipulation and fear. It will also maximise the chances that administrators will make sure that their actions are lawful.

admin law au
United Nations Covid-19 Swab Test Image

Like most of us, I have been quite shocked at what has happened this year since Covid 19 entered the world.  I have been particularly surprised at the lack of understanding of lawfulness, and how to communicate it, by those in government or those responsible for communicating government messages.

It’s amazing what fear and rhetoric can do.  No matter how little evidence or legal framework underpins such fear or rhetoric.

Get ready for complaints, because once the Covid panic is over (which will surely happen), and we reflect, there will likely be a few legal cases challenging the “unprecedented” unlawful decisions made in these “unprecedented” times.

As I said to an administrator the other day – yes, these are unprecedented times, but we still have to follow the law!

United Nations Covid Response – Truth v Rumors

I will have a few more things to say about admin law and Covid in the coming weeks.  For this email, I say this.

Be careful about oversimplification. 
Maybe this message applies to “Comms” people in government, or politicians, or bureaucrats sending people letters.  But it is also a useful message for those receiving messages from those in power.  Maybe the messages that you are reading are oversimplified.

Oversimplification can be extremely misleading.  It can cause anxiety unnecessarily, or it can make people think that the law requires them to do certain things, when it doesn’t (which might be a desirable outcome for some, but I doubt is in the public interest).

“Stay at home” story
An obvious example of Covid messaging is found on our freeways.

On the freeway in Melbourne are signs for travellers.  Some of them are so short that they are incorrect.  For example, those saying “You must stay home” are not true.  It is not true that every person driving under that sign must stay home.

A better sign which you may have seen (also a short one), says “Avoid unnecessary travel”.  It’s not much longer, but much more accurate.

The first sign prompts anxiety “I’m not at home. I’m in a car on the freeway. I thought I was complying with the law. What am I missing. Oh no!”

The second sign prompts a reminder. “Is this trip necessary? Oh yes, it is necessary because I need to buy that thing. (Or visit that sick person, or…)”

If you read the Victorian Directions applying to the Stage 4 lockdown, you will find pages of detail as to when you can leave home, and it changes often.  That detail just can’t be summarised into “You must stay at home” full stop.

If people in government are responsible for sending messages to the community regarding what is the law, they should do their best to make those messages correct.  Incorrect messages like “You must stay home” can serve to feed anxiety rather than helpfully reminding the community of their obligations.

For me, such simplification has caused quite a bit of trouble in our attempt to empty my parents’ house.  My parents have entered Aged Care (more about that in later posts), and have sold their house.

People are too scared to help with emptying the house, or taking any of the furniture, because they are afraid they will be breaking the law.  Opshops are closed, and even the local tip is closed, so emptying the house (which is required by law) has proved particularly difficult. 

The freeway signs saying “you must stay at home” don’t help.

Clear messaging is better.

Communicators of government messages in these unprecedented times should be clear and accurate.  Yes, Covid makes many of us anxious, but there is no need to add unnecessary anxiety through incorrect messaging.  But to be clear and accurate, communicators need to know more about administrative law.  They need to know the difference between a legal requirement, a recommendation, and – even – making things up.

If you need to know more about administrative law sooner rather than later, you can purchase access to our videos and do our quizzes online.  Or sign up to our next online course coming up soon.

University students, misconduct and admin law

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Y v University of Queensland [2019] QSC 282 is the latest case in the vexed world of university student misconduct, disciplinary proceedings, and criminal law.

What does Y’s case teach us?

Before we talk about the case, what “take aways” did another student (who is doing a summer placement with me) get out of reading it? It was interesting to hear her observations. She thinks:

  • the case highlights the importance of understanding your organisation’s own policy and procedures;
  • clarity in those procedures is so, so important;
  • universities (and employers) need to be consistent when disciplining students (or employees);
  • as a decision maker, you need to think about not just what you can do, but what you cannot do;
  • be aware of the duty of care owed to students and staff, but don’t forget the university’s reputation either.

What’s this case about?

Y, a student, obtained judicial review of a decision of the University of Queensland and the Disciplinary Board of the University of Queensland.

The Board had sent a notice of allegations to the student, and was ready to hear and decide those allegations. They were allegations of sexual assault, and the hearing was to be under the University’s Student Integrity and Misconduct Policy.

The Supreme Court restrained the Board from hearing the allegatinos. The Court found that the Board did not have jurisdiction.

The allegations were at least partly found to be allegations of criminal offences.

They were not just allegations of breaches of a sexual misconduct policy.

How does this case affect your University or government employer?

It’s common for criminal acts, or allegedly criminal acts, to be part of a disciplinary investigation. Or part of the landscape of a disciplinary investigation. This can happen in the public service, or in a university, or anywhere, really.

You are an employer, or university, or some sort of regulator. But you are not the police, and you can’t lay criminal charges. How are you supposed to work out what to do?

I will add to this article in the coming weeks. But what do you think?

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