I Introduction
A perennial topic in constitutional theory is the most appropriate way of protecting fundamental rights and freedoms. How should power and responsibility for the resolution of rights issues be divided between courts and legislatures? How should each institution approach its role? And so on. This symposium is directed to investigating how deliberative democratic theory might assist in answering these questions — what ‘Deliberative Rights Theory’ could contribute to the field. It is possible to conduct this investigation from a number of different angles. One could, for example, examine the potential for judicial review of rights to operate according to the precepts of deliberative democracyFootnote 1 or the potential for institutions designed according to deliberative democratic principles, such as citizen assemblies, to improve debate on polarising rights issues.Footnote 2 This article aims to investigate the role of federalism in moving a jurisdiction in a more or a less deliberative direction on rights. There is scope for further inquiry into this subject as there is only a small body of scholarship on the relationship between federalism and rights deliberation. This article sets out some of the ways that federalism can and does affect rights deliberation, often in a complex and contingent manner. The article also contends that the relationship provides an additional way in which to evaluate the design and performance of federal institutions such as intergovernmental forums — namely, their propensity to facilitate deliberation on contentious issues such as rights.
The article examines the place of federalism in Deliberative Rights Theory by reference to two case studies from the COVID-19 pandemic — one from Australia and one from Canada. During the pandemic, most countries were faced with difficult decisions involving fundamental rights and freedoms. They included questions about the extent to which limitations on freedom of movement (eg lockdowns and border closures) and the right to work (eg vaccination mandates and industry shutdowns) should be imposed. In Australia and Canada, these decisions were significantly affected by federalism because they required coordination between the different levels of government as constitutional responsibility for them was divided. Furthermore, many of Australia and Canada’s regional governments took the highly unusual step — by historical standards — of closing their internal borders, a move that physically divided the countries along federal lines. The article focuses on one prominent aspect of the COVID-19 policy response in each country — the international border closure in Australia and the declaration of emergency to quash the ‘Freedom Convoy’ protests against vaccination mandates in Canada — and evaluates the way in which federalism affected deliberation on the rights that were implicated by each issue.
Part 1 of the article evaluates the position of federalism in the existing literature on deliberative democracy, explaining why there is scope for more scholarship on the relationship between federalism and rights deliberation, and putting forward a case for why the relationship matters. Part 2 demonstrates how federalism affected deliberation on the right of citizens to return to their country of origin in Australia. Part 3 demonstrates how federalism affected deliberation on the right to protest in Canada. The conclusion considers how research in this area might be further developed in the future.
II Federalism and rights deliberation
In recent decades, the study of deliberative democracy has expanded considerably and is today considered a ‘flourishing field’.Footnote 3 It seeks to investigate the extent to which political decision-making already aligns with, and can in the future move closer towards, a set of deliberative ideals. Deliberation is typically understood to mean, in broad terms, ‘mutual communication that involves weighing and reflecting on preferences, values, and interests regarding matters of common concern’.Footnote 4 It is, therefore, more than mere talk — deliberation requires discursive engagement that meets a particular set of standards, such as respect for interlocutors, a willingness to accommodate different points of view, and the provision of cogent reasons for decision.Footnote 5 Deliberative democracy aims to move beyond the idea of aggregative democracy where the focus is on the counting of votes.Footnote 6 While it by no means dismisses the importance of voting, it stresses the importance of the quality of discussion that occurs before and after the vote to the establishment and maintenance of a well-functioning democracy. It is based on the idea that there are many steps that can be taken that might mitigate or manage disagreement in society, thus requiring fewer votes and, where a vote is required, help make the outcomes of those votes more respectful of — and even possibly acceptable to — minorities. Deliberative democracy is an aspiration and thus the expectation is not that any jurisdiction always will or, for that matter, ever live up to its ideals in full. The purpose of scholarship in this area is to assess the aspiration’s viability (eg does deliberative democracy undermine other important goals such as the need for resolution on urgent matters?) as well as the factors that help and hinder movement towards it.
Importantly, deliberative democracy scholarship suggests that the aspiration can and should be pursued ‘almost everywhere’.Footnote 7 While the field is, therefore, one that purports to be broad in its scope, most literature tends to focus on a small number of sites of possible deliberation: legislatures, courts and citizen assemblies. There are good reasons for this focus. Legislatures are forums for discussion and, therefore, are ripe for investigation into when that discussion does and does not exhibit deliberative characteristics and how it can be directed in a way that moves closer to deliberative ideals.Footnote 8 Courts appear to exhibit many deliberative features, especially in their procedures for testing competing arguments and the provision of detailed reasons for decision. It is, therefore, apt to consider how courts contribute to deliberation in a democracy and what effect their unelected character has on that contribution.Footnote 9 Citizen assemblies (sometimes described as ‘mini-publics’) refer to forums where members of the public come together to discuss and develop policy.Footnote 10 They are fertile ground for studying the possibilities and limits of deliberative democracy given that they are typically designed from the ground up to facilitate deliberation.
Entire books have been written on these sites of deliberation.Footnote 11 Less has been written on federalism as a potential site of deliberation. To take one example, in the Oxford Handbook of Deliberative Democracy, federalism is not mentioned once in the introductory chapter surveying the sites of deliberation and the topic is considered once in the collection’s 58 chapters spanning almost 1,000 pages.Footnote 12 For other collections that have considered the topic, such as the chapter on ‘Deliberative Federalism’ in the Cambridge Handbook of Deliberative Constitutionalism, the analysis of rights deliberation is closely connected to the analysis of policy experimentation.Footnote 13 While policy experimentation is a prominent way in which rights deliberation might occur, it is not the only one — it is possible for federalism to influence rights deliberation even in the absence of policy experimentation.Footnote 14 At the very least, it suggests there is scope for more research on the subject, especially more case studies to help illuminate the varieties of ways in which the relationship between federalism and rights deliberation can manifest.
A The case against the study of federalism
Before considering how federalism might affect rights deliberation, it is worth briefly noting the arguments against the inclusion of federalism in the study of the subject. Federalism is a site of discussion that is dominated by political elites — ministers, legislators, and bureaucrats. Scholarship suggests that political elites are often not particularly inclined to engage in discussion that meets the standards of deliberation for a range of reasons, including that elites are more likely to have entrenched views on policy issues and that resolution of disagreement may not be in their professional interests (eg members of an opposition political party might be able to gain electoral advantages by publicly opposing government policies even if they, in fact, agree with the substance of those policies).Footnote 15 As a result, federalism could be thought to hold little hope for moving a system of government closer to the aspirations of deliberative democratic theory.
Moreover, a considerable amount of federal discussion occurs in the public sphere (eg ministers publicly commenting on policies adopted by ministers from other jurisdictions). To the extent that federalism contributes to public discussion of policy issues, analysis of it can be folded into the broader study of public deliberation. There is already considerable literature on ‘the public’ and the capacity to conduct deliberation among the public.Footnote 16 It could be argued that, therefore, there is little value in singling out federalism for discrete consideration in this regard. It is arguably not materially different from, for example, a government minister and a member of the opposition publicly discussing policy in a unitary system. Federal discussion would be considered simply another instance of unstructured public discussion.
Finally, in the courtroom the treatment of federal issues is not necessarily different from the treatment of other legal issues (eg rights). Federalism cases can raise difficult questions involving contested values and principles about, for example, the extent to which a country should allow one government to interfere with the actions of other governments.Footnote 17 As a result, they can present case studies for helping understand the role courts play in facilitating deliberation in society. But there is nothing particularly distinctive about federalism cases in this regard. Cases involving rights also present courts with similar challenges and opportunities. Consequently, federalism can be folded into the broader study of the role of courts in deliberative democratic theory.
B The case for the study of federalism
However, there are a number of reasons why federalism should be included in any study of rights deliberation. First, there is a distinctive set of incentives surrounding discussions between politicians from different jurisdictions in a federation. They differ from those that surround both discussions between politicians within a single jurisdiction and discussions between politicians from different countries. Within a single jurisdiction, politicians from different political parties are in direct competition with each other to win the votes of electors. That competition may influence the willingness to engage in discussions that demonstrate deliberative characteristics, such as accommodation and respect. For example, if the governing political party changes its policy stance in response to new circumstances, the opposition political parties may accuse it of being untrustworthy or inconsistent even if they agree that the new circumstances warrant the change because the accusation resonates with voters. Or, the opposition political parties might be unwilling to compromise in a policy debate even if they think the stance of the governing political party has merit because the governing political party would be able to claim the compromise as a win for it and/or the compromise would reduce the points of difference between the parties, disincentivising voters to consider switching their support away from the governing party. The strength of these incentives will, of course, vary from jurisdiction to jurisdiction, especially as there are ways to create incentives for governing and non-governing political parties to deliberate in a single jurisdiction (eg through the way legislative committees are created and structured).
The important point is that these incentives differ from those that exist for politicians from different jurisdictions in a federation. Most significantly, they are not locked in direct electoral competition with each other. They are not campaigning for the same set of seats or on the exact same set of issues. As a result, there may not be the same pressures to oppose or refuse to compromise on policy proposals presented by politicians from other jurisdictions. Indeed, there may be incentives to compromise and agree if all participating politicians will be able to claim a particular result as a win to voters in their respective jurisdictions. For example, they might all be able to claim that the compromise represents a step towards addressing an issue of common concern to their respective electorates. Conversely, the federal division of issues might make compromise and agreement more difficult. One possible reason is an entrenched divergence of interests. For instance, if one jurisdiction has significant natural resources and another does not, compromise on the taxation of natural resources may prove to be more difficult than if there were a single jurisdiction responsible for the entire territory. It may not be possible to bridge a divide of this type even if all the actors are from the same political party. Another reason is the potential presence of coercion. For instance, if the central government has more financial resources than the regional governments, politicians from the former may have less incentive to compromise if they are able to, in effect, force politicians from the latter to acquiesce by threatening to withdraw funds if they oppose particular policies. Again, the strength of these incentives will vary from federation to federation and from issue to issue. For present purposes, the significance is that discussions between politicians from different jurisdictions in a federation are not necessarily subject to the same dynamics as discussions between politicians within a jurisdiction, meaning that the capacity for deliberation is different.
A contrast also exists between, on the one hand, discussions within federations and, on the other hand, discussions between countries. The two are similar to the extent that they constitute discussions between representatives of different jurisdictions, in contrast to discussions between politicians within a single jurisdiction. However, politicians in a federation are members of a single constitutional system, subjecting them to a range of opportunities and constraints that do not exist across international boundaries. For instance, apart from the drastic step of secession, politicians in a well-functioning federal system are constitutionally linked to each other and therefore must work to find solutions in the face of disagreement — choosing not to compromise and instead negotiate with other jurisdictions is not open to the same extent as it is to politicians in the international arena. Politicians in a federal system also have more mechanisms for resolving disagreements. The judicial system is an obvious example, providing politicians with an alternative avenue in which to pursue their disagreements if they cannot be resolved through the political process.Footnote 18 As a result, federalism cannot simply be reduced to another form of inter-jurisdictional discourse given that the federal dynamic will influence discussion in ways that that do not occur in other cross-border settings.
If federalism does warrant discrete analysis in the study of deliberative democracy, it is appropriate to ask what effect federalism might have on deliberation. As is the case with other constitutional structures, it is impossible to provide a universal answer. Just as the legislature or judiciary might contribute to discourse that has deliberative features in some jurisdictions, on some issues and in some periods, but not others, so too might the existence of a federal system of government. However, it is still possible to make some tentative general observations.
One of the more distinctive aspects of federalism from a deliberative perspective is that it leads to more than one government capable of being able to talk on behalf of, and to, the people. While a unitary system can have discussion and debate between different parts of government (eg the executive and legislature might both be able to speak on behalf of, and to, the people), only a federal system can have entire governments — with the information, resources and authority that this entails — in exchange with each other. If different governments in a federal system are on different sides of a particular debate, their exchanges could, on the one hand, shift discourse in a more deliberative direction by, for example, helping inform the public about the merits of each side of the debate, bringing additional information to the debate (ie the considerable expertise and resources of the state is brought to bear on both sides), and demonstrating to the public how difficult issues can be discussed in a respectful and accommodative manner. On the other hand, the exchanges could shift discourse in the opposite direction. The different perspectives might confuse rather than clarify the matter for the public, the additional information may be misleading rather than helpful, and the exchanges might be disrespectful, fostering public animosity on the issue and distrust of government. As mentioned above, the precise effect of federalism on deliberation will differ from case to case.Footnote 19
Importantly, in exchanges between governments, the central government does not necessarily have deliberative superiority over the regional governments. One cannot assume that the central government’s deliberations are more legitimate than the regional governments’ deliberations on the basis that the former deliberates with representatives from, and on behalf of, the entire polity while the latter only includes a subsection of it. If, for example, the regional governments are united against the central government on a particular issue, it is possible that the regional governments will have arrived at that position after more extensive and more careful deliberation than the central government, since the deliberation would have occurred in multiple forums on multiple occasions. Or if, for instance, there is an issue that only affects a particular region, the regional government’s discussions of that issue might be deliberately superior to those of the central government. The regional government’s deliberations may have been comprised of people with greater knowledge of and connection to the issue than those of the central government, where many participants may be far removed from the issue, in terms of both geographical distance and familiarity with its nuances.
Debate and discussion between governments is not the only way in which federalism might impact deliberation. A federal system also adds discursive redundancy. If one government is reluctant to publicly engage with an issue, other governments in a federation can step in to draw attention to it. While there are many other actors that can also draw attention to issues a government would prefer to ignore (eg opposition political parties, the media), only another government has the potential power to take executive or legislative action on the issue. If, for instance, a central government wants to ignore the issue of climate change because the governing political party is split on how to address it, the regional governments could effectively force a public discussion on the issue by taking steps to address it themselves. This discursive redundancy might move discussion in a more or less deliberative direction. It could facilitate deliberation by informing the public about the issue and by demonstrating the different policy positions that are possible. However, it could also undermine deliberation by creating jurisdictional battles (eg one government accusing the other government of encroaching on its area of constitutional responsibility) that detract from the underlying issue.
Relatedly, federalism more readily allows for discussion and debate to occur at different levels of generality. The central government can stimulate and direct discourse that involves everyone within the country while regional governments can stimulate and direct discourse that is primarily confined to people within that region. To borrow the language of some deliberative scholars, different governments in a federation might ‘think differently’ and thus contribute different insights to a particular policy problem.Footnote 20 This tiering might move discussion in a more deliberative direction by ensuring issues are addressed in the appropriate forum (eg having issues that affect a particular region be discussed at the regional level). But it might also move discussion in the opposite direction by creating confusion if the same issue is being addressed in multiple forums at once.
Recognising federalism’s possible contribution to deliberative democracy has implications for the study of the former, not just the latter. A dominant narrative on the contribution of federalism, especially in constitutional law, is that it creates space for policy experimentation. Regional governments can act, in the well-known phrase, as ‘laboratories’ of democracy.Footnote 21 Studying federalism’s contribution to deliberative democracy highlights that federalism does not necessarily have to lead to policy experimentation for it to have value. Even if no policy experimentation occurs, discussion and debate between governments prior to the adoption of a policy might improve it by adding more information to the conversation and by prompting accommodations of different perspectives. Consequently, federalism has not necessarily failed to make a contribution if policy uniformity results — federalism can contribute to the policy-making process, not just policy outcomes. The experience of Australia and Canada during the COVID-19 pandemic highlight why federalism warrants discrete treatment in the study of deliberative democracy and, more specifically, why it has a place in Deliberative Rights Theory.
III Australia
Federalism featured significantly in Australia’s policy response to the COVID-19 pandemic. Regional governments closed their borders to each other to attempt to prevent the spread of the virus into their jurisdictions.Footnote 22 Different governments adopted different policies in relation to border closures, with some keeping them mostly open and others keeping them mostly closed. One region, the State of Western Australia, kept its border closed to the rest of Australia — as well as other countries — for 697 days, making it one of the world’s longest border closures that occurred during the pandemic.Footnote 23 Many other aspects of the public health response also differed between jurisdictions, such as restrictions on movement and the requirement to wear masks. Moreover, there was frequent intergovernmental discussion and debate — both in public and in a new private forum established to facilitate intergovernmental coordination (National Cabinet) — about the best way to handle an enormous variety of matters, from school closures to reduce the spread of the virus to financial support for people unable to work due to illness.
As a review of all the ways that federalism affected deliberation, both positively and negatively, is beyond the scope of this paper, it will instead focus on a prominent instance of federal interaction: management of the international border. The issue was one that required a complicated, ongoing negotiation between the Commonwealth (central) government and the State and Territory (regional) governments. Under the Australian Constitution, the Commonwealth is legally responsible for management of the international border. It had the power to determine the number and identity of persons who were able to enter the country. However, for most of the pandemic, all international arrivals were required to quarantine in a government-managed facility — typically a hotel — for two weeks. The States and Territories oversaw the operation of these facilities as they were the only level of government that had the public health and law enforcement personnel and expertise to operate a system of this scale. As a practical matter, therefore, they largely determined the number of people who were able to enter the country because they ultimately decided how many rooms in hotel quarantine they could manage with the resources they had.
The management of the international border and the operation of the hotel quarantine system were plagued with problems. They have already been studied from a number of perspectives, including the constitutional lessons that can be taken from the matter,Footnote 24 the administrative law issues that arose from the extensive use of private contractors in the facilities,Footnote 25 and the programs’ compliance with the country’s international law obligations to its citizens who were stranded overseas as a result of the low number of people allowed to enter the country.Footnote 26 This paper will not comment on these aspects of the subject, but instead consider what it teaches us about the relationship between federalism and deliberation on rights.
At issue was a fundamental right — the right of citizens to return to their country of origin — and the reasonable limits that could be placed on it to protect persons inside the country from COVID-19’s direct effects (ie contraction of the virus) and indirect effects (eg the diversion of health resources away from regular medical procedures to treat COVID-19 patients). The topic generated both considerable agreement and disagreement within the federation. For most of the pandemic, all of Australia’s governments were united in the view that international travel into the country had to be restricted and that people allowed to enter should be subject to a mandatory quarantine period of two weeks. The Commonwealth, States and Territories worked very closely together to implement this policy. Over the nearly two years in which it was in effect, hundreds of thousands of people were processed through the quarantine system. It required an extraordinary level of intergovernmental coordination because the number of people allowed to land at each international airport each day was managed by the Commonwealth, and depended on the number of people that the States and Territories could accommodate into hotel quarantine (a figure that changed almost on a daily basis).
There was, however, also a great degree of disunity. The Commonwealth was, in general, in favour of allowing more people to enter the country while the States and Territories were, in general, in favour of allowing fewer people to enter the country. Moreover, there was disagreement between the States because some took far more international arrivals than others — in particular, New South Wales took considerably more people than any other State.Footnote 27
The reason for the Commonwealth’s position was that it was responsible, in both legal and political terms, for Australia’s citizens located outside the country. At the time the pandemic began, approximately one million citizens were outside of Australia.Footnote 28 Many of them wanted to return to Australia, but were unable to do so because there was insufficient capacity in hotel quarantine to admit them into the country in a timely manner. This cohort of people, which came to be known as the ‘stranded Australians’, varied in size over the course of the pandemic, but numbered over 40,000 at certain points. Many stranded Australians needed to return to the country more quickly than the system would permit. For example, some were left stranded in an overseas country where they no longer had the legal right to remain because their visa had expired, which also meant they had no legal right to work. The inability to return to Australia also meant citizens missed important life events, such as final farewells of dying family members and funerals. As more and more stories of the stranded Australians were published in the media, the Commonwealth came under more and more pressure to increase the number of places in hotel quarantine. It took some steps to address the matter itself by expanding a quarantine facility that it operated in the Northern Territory, but it was mostly reliant on the States and Territories to expand their quarantine facilities.Footnote 29
The reasons for the States and Territories’ position were that larger quarantine facilities increased the risk of a COVID-19 outbreak in their jurisdiction and placed greater strain on their already stretched public health resources. Most COVID-19 outbreaks in Australia occurred as a result of leaks from hotel quarantine, typically as a result of a person involved in the system (eg a security guard overseeing people in quarantine, a bus driver transporting people in quarantine from the airport to the hotel) contracting COVID-19 and spreading it in the community. These leaks would often prompt the imposition of unpopular restrictions on movement in the community (ie lockdowns) as public health officials sought to contain its spread. Additionally, State and Territory Governments were required to devote considerable public health resources to the quarantine facilities, especially healthcare personnel to attend to the health issues — both those related to COVID-19 and other illnesses — of persons in quarantine. This call upon public resources came at a time when the States and Territories were already cancelling elective surgery to free up personnel to care for COVID-19 patients in hospitals. Consequently, there was little incentive for the States and Territories to expand their quarantine facilities from either a political perspective — it would increase the risk of having to implement a highly unpopular lockdown — or a resourcing perspective — it increased the financial burden on government.
There were a number of respects in which the discussion and debate that occurred between the governments unambiguously failed to meet deliberative ideals. One was the lack of transparency and detailed reasons for the decisions made about hotel quarantine capacity. A new intergovernmental decision-making body, which as noted was called National Cabinet, was established during the pandemic to meet regularly to discuss, among other things, the number of people that would be admitted into each State’s hotel quarantine facilities. The numbers would be announced after National Cabinet meetings with few, if any, reasons provided for any change. More broadly, the public were never provided with any insight into the extent to which alternative quarantine arrangements had been considered, such as the home quarantine arrangements that were used in other countries.Footnote 30 Indeed, it appears National Cabinet was deliberately established in a way to minimise transparency of the discussion and debate that occurred within it. When a Commonwealth Senator sought to attain records of National Cabinet proceedings under freedom of information legislation, the Commonwealth Government resisted by claiming that they were ‘an official record of a committee of the cabinet’. In other words, one of the reasons the body had been called ‘National Cabinet’ was to attempt to bring it within the umbrella of the principle of cabinet confidentiality. However, this attempt failed before the Administrative Appeals Tribunal, with a Federal Court judge holding that National Cabinet was not a sub-committee of cabinet.Footnote 31
Furthermore, the way in which the leaders of the Commonwealth, State and Territory Governments conducted themselves in public often fell well short of deliberative ideals. As New South Wales accepted more international arrivals than any other State, it claimed that other States should contribute to the costs it incurred from quarantining residents from other States.Footnote 32 After attempts to resolve this issue by negotiation failed, politicians started to engage in publicity stunts. The New South Wales Government sent the Queensland Government a bill for $30 million for quarantining over seven thousand Queensland residents. The Deputy Premier of Queensland then tore up the bill on social media, and encouraged members of the public to print out their own copy of the bill at home and tear it up.Footnote 33
However, there were also a number of respects in which it appears that federalism pushed the discussion and debate in a more deliberative direction. First, the federal division of responsibilities ensured that different aspects of the issue were considered at the appropriate level of generality. For the imposition of restrictions on movement, it was important for the discussion and debate to be held within the community being subject to them. If the decision to initiate a lockdown had been considered, made and communicated by, for instance, officials far removed from the affected group, it would have created problems from a deliberative perspective. It would have likely led to deficiencies in discussions of the costs and benefits of lockdowns because decision-makers unaffected by them were liable to underappreciate the hardship they cause. For instance, when failures in hotel quarantine led to COVID-19 outbreaks in Victoria that required lengthy lockdowns, it was widely reported that people outside Victoria, including officials in other jurisdictions, did not appreciate the degree of collective trauma they created.Footnote 34 From a deliberative perspective, it was important that the conversation was one among Victorians rather than between Victorians and some remote group of decision-makers.
Conversely, it was important for the discussion and debate about the international border to be conducted at the national level. As the international border affected the ability of Australian citizens to return to the country, the relevant community that had to discuss the issue was the national one. It was about what Australians — not, say, South Australians or Tasmanians — were owed as part of their membership of that community. It was also important for the conversation to occur at the national level because only the central government had diplomatic missions in other countries to which the stranded Australians could petition.
Second, federalism also moved discussion and debate about management of the international border in a more deliberative direction by introducing greater accountability into the discourse. At points during the pandemic, some governments appeared to be uninterested in the cause of the stranded Australians. The Commonwealth was at times willing to blame the stranded Australians for their plight, saying they should have come home in the short period in March 2020 when the border was not completely shut.Footnote 35 Some States appeared focused on reducing the number of places in hotel quarantine as much as possible — the third most populous state, Queensland, for example, reduced its intake to only 500 people per week at one stage.Footnote 36 However, other States helped hold them to public account for these positions. In September 2020, for example, the New South Wales Premier urged the other States to do more to assist the stranded Australians by taking more people into hotel quarantine.Footnote 37 Importantly, unlike critical commentary from an opposition political party or the media, this call came from someone with direct experience of operating a system of hotel quarantine at a scale larger than what the other States were running — that is, someone who had personal knowledge of the challenges with operating hotel quarantine. Then in October 2021, the New South Wales Premier pushed Australia to reopen its international border, announcing that fully-vaccinated persons would be able to enter New South Wales without quarantine, stating ‘We need to rejoin the world. We can’t live here in hermit kingdom. We’ve got to open up.’Footnote 38 This announcement forced the Commonwealth to take action on the issue and develop an accelerated plan for reopening the international border.Footnote 39 Only a State Government was in the position to push the Commonwealth to reconsider the issue.
In sum, the Australian experience with international border closures during COVID-19 demonstrates the importance of federalism to assessing a jurisdiction’s deliberative performance in the area of rights, illustrating how federalism can both impede and facilitate moves towards the standards suggested by deliberative scholars on significant rights issues such as the right to return to one’s country of origin.
IV Canada
As in Australia, federalism featured prominently in Canada’s policy response to the COVID-19 pandemic. For instance, Canada’s regions (Provinces) adopted different restrictions on movement to control the spread of COVID-19 and some even closed their borders to persons from other regions. However, one of the more striking episodes of the pandemic came towards the end when the Emergencies Act,Footnote 40 a federal law, was invoked for the first time since its enactment in 1985 in response to the ‘Freedom Convoy’, a set of protests against COVID-19 vaccination mandates led by truck drivers. For the purposes of this article, the event is notable because it crossed federal boundaries in both a physical and constitutional sense.
The ‘Freedom Convoy’ began in late January 2022 when a group of persons employed as commercial truck drivers started a protest against the introduction of a legal requirement that would require them to be vaccinated against COVID-19 to undertake transportation work between Canada and the United States. Protests were held at multiple sites across the country, with a number of them being near border crossings between two countries. However, the city of Ottawa was the major protest site as truck drivers from around Canada converged on the capital and blockaded the streets around the Federal Parliament. Hundreds of trucks occupied the area for the duration of the protest, which was approximately two weeks.
The protest caused major disruptions at both the local and national level. In Ottawa, it resulted in noise complaints, difficulties in accessing a range of government services, an inundation of calls to emergency services, harassment of residents, and more than $150 million in lost revenue for businesses near the protest site.Footnote 41 For Canada, it had significant economic ramifications as the blockades near the international border impeded the movement of goods between Canada and the United States. One of the blockade sites, the Ambassador Bridge connecting Ontario and Michigan, was a major trade route for the automotive industry, carrying $360 million of cargo per day.Footnote 42 As a result, the blockade threatened to shut down the automotive industry in the United States, prompting a call between the Canadian Prime Minister and United States President that was seen by Canadian officials ‘as significant and a clear sign of the degree of the United States’ concern’.Footnote 43 It was estimated that the loss to the Canadian economy was in the tens, if not hundreds, of millions of dollars per day.Footnote 44
The protests ended in mid-February when the Federal Government took the extraordinary step of invoking the Emergencies Act.Footnote 45 Using the powers under that statute, the Government banned a range of public assemblies, allowed the police to create exclusion zones, required people to render services to the Government (eg the provision of tow trucks to remove the blockaded trucks), and froze the assets of anyone indirectly or directly involved in activities prohibited by the statute. Shortly after its invocation, the police began a large operation to clear the protestors from Ottawa and other protest sites. While many of the powers under the Emergencies Act were not used and no charges were laid under it, law enforcement authorities laid 533 criminal charges and impounded 110 vehicles.Footnote 46 The Emergencies Act required the Government to commission an inquiry into its invocation. The Public Order Emergency Commission, led by Justice Paul Rouleau of the Ontario Court of Appeal, produced a five-volume, 2,000+ page report (‘Rouleau Report’)Footnote 47 that helpfully provides considerable detail into the episode, including its federal dimensions.
The Freedom Convoy implicated federalism in a number of important respects. First, the protests arose in multiple Provinces at approximately the same time. They therefore serve as a case study in federal experimentation as different Provinces responded to the issue in different ways. Second, the Freedom Convoy moved across Provincial (and international) boundaries. Truck drivers arrived in Ottawa from other parts of the country and were supported financially by people from around the world, particularly the United States. The episode thus also serves as a case study of the challenges of jurisdictional limits — the Province of Ontario was faced with an issue that, in large part, originated from and was supported by people outside its jurisdictional reach. Third, the Freedom Convoy’s blockade in Ottawa was an issue for, and required coordination between, three levels of government — Municipal (the City of Ottawa), Provincial and Federal. The episode thus also serves as a case study of the challenges of jurisdictional overlap — the Rouleau Report identified the breakdown in relations between Municipal and Federal law enforcement bodies as a key contributor to some of the failures that occurred in response to the Freedom Convoy.Footnote 48
Fourth, the Provincial and Federal Governments influenced the discussion and debate about the Freedom Convoy. It is this aspect that the article will consider in more detail. The Freedom Convoy presented difficult questions related to freedom of expression and, in particular, the right to protest. Many aspects of the Freedom Convoy did not attract much sympathy from the rest of the public, including its tactics, misinformation, and associations with antidemocratic, homophobic and racist content.Footnote 49 But the concerns motivating the movement were not wholly without merit — it was an issue that provided scope for reasonable disagreement. Vaccination mandates were a contentious aspect of the COVID-19 policy response. It was not entirely unreasonable for people to oppose legislation that required them to submit to unwanted medical treatment or risk loss of their livelihood. It was particularly contentious in relation to the freight transportation industry when compared to other industries. On the one hand, truck drivers mainly work in isolation and do not interact with large vulnerable populations unlike, say, medical professionals, aged care workers and teachers. On the other hand, they travel to many places and, therefore, could potentially spread the virus to many different communities in a short period of time.
There was also room for reasonable disagreement about the appropriate way of responding to the protests. It was possible to question whether the governments should have allowed the blockade to grow to the scale that it did in Ottawa before taking action. It was also possible to question whether the declaration of emergency and the measures taken pursuant to it were a proportionate response to the threat the protests posed to health and safety. Some of the emergency measures were particularly far reaching, especially the asset freezing as it applied to broad categories of people and businesses, including individuals who merely donated money to a fundraiser after the emergency declaration came into effect.Footnote 50
Federalism was one of the axes along which the discussion and debate about the Freedom Convoy was carried out. In line with public opinion and as one might expect given the protest was against public policy, most political leaders were not in support of the Freedom Convoy. However, there were exceptions. The Premier of Alberta, for example, publicly urged the Prime Minister and United State President to exempt truck drivers from the vaccination mandate because it was exacerbating supply chain shortages and truck drivers posed a small public health risk.Footnote 51 The Premier also took a more moderate line on the actions of the protestors, encouraging them to engage in ‘peaceful and lawful protest’ while also denouncing the more disruptive actions that blocked the movement of emergency vehicles as ‘unlawful’.Footnote 52 The Premier also claimed it was not necessary to invoke the Emergencies Act in the Province of Alberta.Footnote 53
The Premier of Quebec also maintained that it was not necessary to apply the Emergencies Act to the Province because the police already had the situation under control.Footnote 54 More importantly, he raised the possibility that its measures might make the situation worse, suggesting that ‘I think we have to be careful’ because the declaration of emergency ‘would not help the social climate’:Footnote 55 ‘We really need not to put oil on the fire’.Footnote 56 Concerns about the declaration of emergency were also raised in public by the Premiers of Manitoba and Saskatchewan.Footnote 57
While it is possible to debate the extent to which the interventions of the Premiers, in particular, the Premier of Alberta moved the conversation about the Freedom Convoy in a more deliberative direction, there is one respect in which they were crucially constructive from a deliberative perspective. A key issue that arose during the episode was whether the threshold for invoking the Emergencies Act was met.Footnote 58 For the Federal Government to declare a public order emergency, the statute required that there be a threat to the security of Canada ‘that is so serious as to be a national emergency’.Footnote 59 A national emergency is ‘an urgent and critical situation of a temporary nature that … is of such proportions or nature as to exceed the capacity or authority of a province to deal with it’.Footnote 60
It was possible to argue that the Freedom Convoy did not meet this definition because it was a series of local — not national — protests that the Provinces were capable of handling. The statements of the Premiers of Alberta and Quebec suggesting that there was no emergency in their Provinces were important evidence for this position.Footnote 61 Indeed, it could be argued that these statements were particularly cogent evidence given that they came from people with the most familiarity of the situation in these jurisdictions and the Province’s capacity to respond to it. While the statements were not incontrovertible — a Premier might have political incentives to downplay the extent to which there was an emergency in their jurisdiction — they did come from people with close knowledge of the matter.
Significantly, the statements came at the time the decision to invoke the Emergencies Act was being made. When assessing their contribution, therefore, it must be remembered that the statements were made at a time when no one had perfect information about the extent of the threat to security, as the Rouleau Report would later note,Footnote 62 and that the statements were made at a time when they were able to contribute to the actual decision-making process (ie when they are most valuable), not just a post-hoc evaluation of the decision-making process.
Indeed, even with the benefit of hindsight, it was not clear whether the Federal Government made the correct decision. Two post-hoc evaluations of the decision-making process were undertaken and each reached a different conclusion on whether the threshold for declaring an emergency was met. The Rouleau Report observed that the Premiers’ statements about the situation had to be balanced against the fact that some Provinces had requested assistance from the Federal Government to deal with the protests in their jurisdictions. This fact suggested that ‘the protests had grown into a movement that could not be resolved in a localized, piecemeal fashion. It was a national situation, requiring national measures such as cutting off funding to the protests’.Footnote 63 By contrast, the Federal Court held, in a decision challenging the legality of the emergency declaration, that the threshold was not met. Mosley J found that ‘the evidence is clear that the majority of the Provinces were able to deal with the situation using other federal law, such as the Criminal Code, and their own legislation.’Footnote 64
The Freedom Convoy implicated the relationship between federalism and deliberation in another, more formal way. It is a requirement of the Emergencies Act for the Provinces to be consulted before the Federal Government declares a public order emergency.Footnote 65 The Act does not provide any further detail about the form that consultation must take, leaving it to the political process to establish and undertake. The Rouleau Report provides some detail about what consultation did occur.
The Prime Minister convened a meeting of First Ministers on 14 February 2022.Footnote 66 The First Ministers were notified of this meeting at 10pm on 13 February. The Rouleau Report notes that ‘[t]his was unusually short notice. No agenda or briefing material was provided in advance, and the premiers were not advised of the subject of the call.’Footnote 67 The meeting revealed a deep divide between the Premiers about the wisdom of declaring an emergency. Five Premiers voiced their support for the emergency order, but seven Premiers opposed the action on varying bases, including that the order was not necessary, that the order might inflame tensions, and that the Federal Government had other means to respond, such as lifting public health measures.Footnote 68 It was the only consultation that occurred with the Premiers prior to the declaration of emergency,Footnote 69 which the Prime Minister ordered later that same day.
Before the Rouleau Commission, a number of Provinces ‘suggested that the First Ministers’ Meeting was a perfunctory exercise that did not comply with the statutory consultation requirement.’Footnote 70 Commissioner Rouleau concluded that, although it was ‘arguable that the First Ministers’ Meeting was not an appropriate consultation’, ‘[c]onsidering the totality of the circumstances, my view is that the manner in which the Federal Government conducted the consultation was adequate and satisfied the minimum requirements of section 25, but could, and likely should, have been better.’Footnote 71
The formal consultations that occurred prior to the declaration of emergency reveal at least two important lessons for the purposes of this article. First, they demonstrate that formal mechanisms for the facilitation of deliberation are not necessarily more successful than informal mechanisms. Even though the Emergencies Act expressly created a requirement of intergovernmental consultation prior to the declaration of an emergency, the Rouleau Report suggests that it was treated by the Federal Government as little more than a box ticking exercise. By contrast, the unstructured public debate about the Freedom Convoy that occurred between political leaders arguably came closer to meeting the deliberative ideal. While it was far from perfect, it was a genuine debate that was conducted over a sufficient period of time to allow responses and consideration of the arguments by members of the public.
Second, the formal consultations provide an additional reason why federalism warrants discrete study in the field of deliberative democracy. The Emergencies Act illustrates that legislatures can seek to facilitate debate and discussion along federal lines. This fact raises a question of institutional design: how should a forum be established and operated so as to increase the likelihood of federal interactions that approach the deliberative ideal? As the Freedom Convoy experience demonstrates, it is not enough simply to require federal consultation. Furthermore, the lessons from the design of citizen assemblies may not necessarily translate to intergovernmental forums because, as mentioned above in Part I, the participants are politicians and bureaucrats who will have well-developed views on the merits of different policy positions. As a result, inquiry into the design of federal deliberative institutions is both necessary and distinctive.
In summary, the Canadian experience with the Freedom Convoy also demonstrates the utility of studying federalism’s contribution to deliberative democracy in the area of rights, but for different reasons than Australia. It usefully demonstrates, for example, the need to think about the design of mechanisms intended to facilitate federal deliberation and the way federalism can impact public debate about legislative compliance.
V Conclusion
As the articles in this symposium attest, Deliberative Rights Theory provides a range of possible insights into constitutional questions about the protection of fundamental rights and freedoms. One benefit of turning to deliberative democratic theory is the set of standards it brings to the evaluation of decision-making on rights issues. It provides benchmarks for assessing, in particular, the way discussion and debate on rights occurs that is independent of the outcomes reached. For example, it allows us to reach the conclusion that the decision-making process on a particular question involving rights was appropriate even if the specific decision reached is one that we might think is incorrect.
The purpose of this article has been to evaluate the role of federalism in Deliberative Rights Theory, in particular, to illustrate some of the ways in which the presence of multiple levels of government can move discussion and debate on rights both closer to and away from deliberative ideals. In doing so, it has suggested that one can observe federalism’s effect on rights deliberation independently of the particular conclusions reached on policy decisions. As a result, the article underscores that the study of federalism in this area should not be reduced to its capacity to generate policy experimentation.
In both case studies there were intergovernmental processes — in Australia, National Cabinet, and in Canada, the Emergencies Act consultation requirement — designed to discuss and debate rights issues. This fact points to one area of possible future study. The standards set out by deliberative democratic scholars provide a way in which to evaluate the performance of intergovernmental forums. The big unanswered question is whether there are ways to design these forums so as to increase the likelihood of meeting these standards. While the vast literature on citizen assemblies will provide some assistance, the unique composition of intergovernmental forums means that the subject requires separate study.
As the article has repeatedly stressed, the propensity for federalism to move discussion and debate on rights closer to or away from deliberative standards is highly contingent. It varies with the particular question, jurisdiction and time period. More research is, therefore, also needed to determine if it is possible to develop more generalisable observations about when federalism does and does not contribute to discussion and debate that meets deliberative standards. While contingency will prevent the formation of very precise observations, we have seen in other realms that it has been possible to reach high-level, albeit contestable, observations. For example, in relation to the judiciary’s effect on rights, there is a line of scholarship that makes observations about the suitability of courts to handle cases involving civil and political rights as opposed to socio-economic rights.Footnote 72 The two case studies discussed in this article should, therefore, be considered the beginning rather than end of the investigation of the role of federalism in rights deliberation.
Acknowledgements
The author thanks all the participants of the symposium for their insights into the topic, which helped develop the ideas in this article, but especially Ron Levy for his incredibly helpful comments.
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