POLICING PUBLIC HEALTH: THE JUSTIFIABLE LIMITS OF COVID-RELATED OFFENCES IN WESTERN AUSTRALIA

The COVID-19 pandemic reminded the world of the significant burden of infectious diseases on individuals, families, communities and health systems. Compliance with public health measures was regarded as central to a successful response to the pandemic and, like other jurisdictions, Western Australia utilised the criminal law as a way of achieving this compliance. While a common tactical response, the utilisation of the criminal law in response to a public health crisis raises significant theoretical, regulatory and practical questions about the role of criminal sanctions in this context. This article unpacks the legal frameworks imposing these restrictions and the associated criminal penalties on Western Australians during the height of the pandemic and subjects these to a normative analysis, focusing on the harm principle, and the systemic consequences of risk-based offences more generally. It then undertakes a review of the relevant case law associated with the sentencing of persons convicted of the offences in Western Australia to explore judicial attitudes and sentencing patterns. The article concludes that, in light of both the normative and the explanatory inquiry, there is a place for criminal law in the regulation of communicable diseases, but such a response must be tailored on the basis of need and proportionality given the significant human rights concerns with criminal responses to public health threats.