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Australia: Contemporary Regulation in the Age of COVID - Part II

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The recent controversy over the Victorian government’s Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 galvanized pro-libertarian views against a strong lobby promoting the collective view. Supporters like the idea of elected officials making regulatory decisions. Some human rights advocates say the bill contains “several important human rights and democracy safeguards, including:

· Moving responsibility for key decisions from unelected officials to the Premier and Health Minister, while still requiring them to consult with the Chief Health Officer and consider the health advice.

· Improving transparency around the health evidence and human rights justification relied on by the Premier and Health Minister in making their decisions.” (Human Rights Law Centre, 2021)


Other human rights advocates argue the democratic tradition of distancing the law makers from the law’s decision-makers. The debate has been drowned out by virulent anti-anti-vax propaganda and hysteria.

SARS2(COVID19) has brought a largely invisible regulatory landscape ‘up close and personal’ for the general public. The debate over the balance between individual liberties and the rights of the collective are no longer intellectual; they are playing out in protests on the street in Western democracies and in nightly news commentary. These debates are nothing new. They raged in the formative years of the French Revolution and its Committee for Public Safety. They are evident in the tension between conservatives and socialists, communist idealism v capitalism, neo-Marxism v neo-Liberalism. However, this time the impact is real and in everyone’s home.


This article examines the COVID regulatory response to expand on an earlier piece that discussed regulation in general, its role and the reasons why regulatory failure occurs. Central to this exploration is the concept of prevention. Unfortunately for regulators, prevention is highly politicized in times of crisis (Quarmby, pp.36-7). The many wonderful people working in health and other regulators become operationally paralyzed if they are not independent of this corrupting influence. Treating COVID19 in accordance with Australia’s Pandemic Plan (AHMPPI, 2019) could have resulted in approximately 39000 deaths based on extrapolating Sweden’s figures where a similar plan was followed. This can be compared to the approximate 1000 deaths in Australia following the Chinese/WHO endorsed response plan. However, prevention is not a linear, two-factor statistical equation that much of the fanciful data-modelling has espoused. US States following the Chinese/Wuhan style response appear to have had similar death/infection rates as States following more of the Swedish example; but the latter having less indirect harm-costs. In Sweden the death rate for 2020 was not dissimilar to other recent years; highlighting the problem caused by the false reporting of ‘deaths with COVID’ as ‘COVID deaths’. Similar data-manufacture occurred in confusing the high levels of asymptomatic cases with symptomatic cases. (For an overview of these COVID costs see Pharaoh 2021).


Prevention necessarily includes a cost-benefit analysis. Regulatory intelligence systems support this decision-making by focusing on indirect and unintended consequences. In COVID this means factoring in the regulatory controls’ impact on lives, businesses, the social fabric, education standards, etc. Such intelligence analysis does not give a simple mathematical ‘tick’ to those who benefit. Historically, those who advocate for safety on behalf of the ‘whole’ are often acting for a specific interest. Hence, there were many who benefited from extreme regulatory controls under COVID, but some benefited unnecessarily. Similarly, there were many whose lives were destroyed by COVID restrictions, and some of these whose lives/businesses were already in downturn. Somewhere in this analysis, basic humanity is factored in to cover those controls needed just because it’s ‘the right thing to do’ in terms of public value.


The political ‘spin’ of prevention represents lockdowns, state border closures, and curfews as the controls necessary to ‘save peoples’ lives’; yet no evidence other than overly simplistic data-modelling is provided in support. Given this is the same data-modelling that claimed there would be exorbitant death rates that never materialized, one may have reason to be skeptical of such claims.

Confused messaging is largely indicative of the data-led nature of health regulation and its failure to invest in contemporary regulatory intelligence practices over time. This is even more evident when the other co-regulator that operates under the same biosecurity legislation (for animal and pest controls) has over a number of years invested in a sophisticated intelligence system supporting decisions. Exacerbating this divide is the absence of independence of the health regulator that would enable investment in intelligence capability (beyond data) and not be bound to the interests of the politics of the government served. Interestingly in Sweden – with a left-leaning government that would normally have followed the response pathway mapped out from Wuhan – the biosecurity regulator is statutorily very independent and was able to chart a different course for harm prevention and control.


So how did this parlous state of regulation occur in Australia and what are the key learnings in design? Some areas requiring a re-think are:


1. A history of poor design. Our current bio-health regulatory peculiarities stem from the international medical system heralding the defeat of transmissible diseases in the later quarter of the 20th century. This led to the sale of the network of quarantine facilities across Australia’s entry points. (Yes – the ones they now want re-built!) It also led to a shift of regulatory emphasis to pests and animal diseases. After SARS1 and other human virus epidemics in the 1990s and early 2000s, there was some effort to reset the human-bio assurance system. The Beale Review of 2008 called for the Australian Quarantine Inspection Service (AQIS) to be broadened into a single, national biosecurity regulator. Under proposed new laws, this new regulator would fuse the human, plant and animal bio-threat responses into one regulatory entity. The Beale Review reflected on State governments’ submissions to retain control and State recommendations for a separation of the human and animal responses in separate Departments. Beale considered these outcomes would lead to inconsistencies in regulating the inevitable second wave of SARS and felt a fused, national system would provide the best protections.


2. The presence yet absence of authority. A new single Biosecurity Act (2015) was developed from the Beale Review; however, AQIS was disbanded and the other Beale recommendations were not effectively put in place. The new Act created the biosecurity co-regulators but bureaucracies separated them into different Departments. The law made them the most powerful regulatory authorities in the country – and quite rightly so. No other regulator has the power to create its own offences without parliamentary approval. Core review recommendations were made by Beale to ensure the regulator would adhere to its regulatory principles. But with the demise of AQIS and no new uber-regulator, the review recommendations also were not applied. Instead, the statutory human-biosecurity head of regulation (the most powerful regulatory authority in the land) presents as a ‘health advisor’, and is embedded in the Health Department. This same singular oddity has been replicated across all levels of government as the one law is enabled through State legislation and agreements but again via non-professional, indistinct, bureaucracies. It therefore is no surprise when the public feel more secure when professional bodies such as the police and military take over and operationalize the powers of the regulator. Imagine the difference if there was a single regulator, with the presence of a senior commissioner, who represented a clear and singular national response to what has become Australia’s costliest threat exposure since WWII.


3. Lack of a coherent narrative. There are many regulatory authorities in government who try their best to avoid being seen as a regulator of harm prevention. This means avoiding scrutiny and responsibility. In my book (Quarmby, pp.50-53) I note that education and health are two sectors that traditionally suffer from such professional avoidance. Hence, it is no surprise that the absence of a professional, independent regulatory body with a supporting, objective intelligence system, has led to failures in the principle of transparency and widespread mixed messaging and inconsistencies – as foreseen by Beale. The absence of clear messaging on the asymptomatic is one of the most critical failures in messaging. Data modelling on the spread of the virus conflated symptomatic and asymptomatic experiences. Hence the daily tolling of ‘cases’ became critical levers in false messaging as a count of the level of activity of the regulator, not a count of the spread of harm.


4. An absence of harm construction. The medical regulatory sector tends to lag well behind others also due to its very narrow understanding of harm and lack of regulatory professionalisation. Decisions needed now have to be delayed until the research is conducted. Health regulators have little expertise in establishing task forces and command centres that could drive the operations of the very many regulators across government. Without intelligence and command/control expertise, operational leadership by default shifted to the police or military. Dominated by the interests of the medical system, it is no wonder that the harm message of COVID has tended to be about dangers to the medical system; while those people most needing to be protected get a secondary mention. Then there is the artificial creation of non-compliance in behaviours not related to harm reduction and then the exhaustive effort to patrol that non-compliance. The closing of State borders juxtaposed with the moving of the potentially infected into CBDs both seem odd contra-controls to harm reduction.


5. An absence of review. Contemporary regulatory decisions in democracies are subject to review mechanisms which can challenge decisions against regulatory principles. In COVID, the regulatory decision is encoded as ‘medical advice’; and hence not subject to challenge or review.


It would be interesting to speculate if the Federal Government had enacted its powers under the Biosecurity Act and established a single, independent regulatory authority that managed a consistent response and created a single information picture built from its expansive quarantine authority and emergency provisions. States would have been required to follow the agreements in place to ensure the principles of regulation so neatly enshrined in Australia’s pandemic plan (AHMPPI, p.18). Such speculation is important given we appear to be countering a national threat with more freedom controls and higher debt appetite than employed in WWII.


Endnotes

Australian Health Management Plan for Pandemic Influenza, (AHMPPI) Commonwealth of Australia 2019, https://www1.health.gov.au/internet/main/publishing.nsf/content/519F9392797E2DDCCA257D47001B9948/$File/w-AHMPPI-2019.PDF

R.Beale et al, One Biosecurity: A working partnership, The Independent Review of Australia’s Quarantine and Biosecurity Arrangements Report to the Australian Government, Commonwealth of Australia, 2008.

Human Rights Law Centre, Proposed amendments to Victoria's pandemic law welcome, will increase oversight and strengthen appeal rights, https://www.hrlc.org.au/news/2021/11/30/proposed-amendments-to-victorias-pandemic-law-welcome-will-increase-oversight-and-strengthen-appeal-rights, downloaded 3/12/2021.

Neil Pharaoh, Australia is spending up to $25 million for each Covid life saved, September 7, 2021 - 2:40PM, https://www.news.com.au/world/coronavirus/australia/australia-is-spending-up-to-25-million-for-each-covid-life-saved/news-story/ff9e95686349940bcf076f69b5a4067a, downloaded 9 Sep 2021

Neil Quarmby, Intelligence in Regulation, The Federation Press, 2018.




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