COVID‐19 in the public housing towers of Melbourne: upholding social justice when invoking precaution

In the midst of the COVID‐19 outbreak in early July 2020, Victoria's chief health officer Brett Sutton justified the ‘hard lockdown’ of the public housing towers in Melbourne on the basis of the precautionary principle.¹ Certainly, the spread of COVID‐19 in Melbourne posed a serious risk to the health of its residents. However, even if coercive measures were justified by invoking the precautionary principle during a public health emergency, it did not mean that public health officials could ignore the socio‐political realities of the towers in Melbourne, nor ignore their responsibilities to uphold the social justice requirements embedded in public health.

Various articulations of the precautionary principle exist, but at its essence, the principle is often used to justify coercive public health interventions, despite a lack of evidence, when there is reason to believe that inaction would harm a definable set of persons or communities. Underpinning the idea of precaution is the notion of risk itself, specifically that public health should minimise a risk of harm from actually occurring. Risk is usually understood as a probability of a particular hazard coming about as it relates to a given person or population. At times, the probability of the hazard occurring is uncertain; thus, uncertainty is often subsumed under the notion of risk and its corollary, precaution. The precautionary principle has been explicitly used on countless occasions in the context of health and public health; examples abound, including its use in environmental health law² or in regulating germline gene editing.³

The decision to mitigate risk via coercive public health measures, including hard lockdowns or cordon sanitaires, is not value‐neutral. Stated differently, the (correct) desire to minimise a risk of harm requires balancing various values and interests in two different but interrelated ways. First, as is the case with the Melbourne outbreak of COVID‐19, there are various kinds of risks of harm that require balancing. For example, invoking the precautionary principle to justify the use of coercive measures to stem and arrest the spread of SARS‐CoV2 might be justified, but then other risks of harm come about because of the use of a coercive public health measure, e.g. the risk of increased mental distress and illness. The efforts by Victoria Health (Department of Health and Human Services) to provide residents of the towers with food and other provisions⁴ – though some question the execution of these measures⁵ – is an example of addressing these risks of harm that are created by acting on the basis of precaution. Doing so is in keeping with the principle of reciprocity⁶ and fits with the views of Australian residents.⁷

Second, evidence exists (and is often overlooked) to strongly suggest that it is persons who are socially and politically marginalised who are often subject to coercive measures in the name of public health. Those living in public housing, such as the residents of the towers in Melbourne, encompass a range of populations that may be deemed ‘marginalised’, including Aboriginal Australians and those with disabilities. They are often racialised minorities with differing proficiency in English and in lower‐income brackets, who are subject to various sorts of policing under the guise of public health at higher rates than other communities. For example, historically in Australia, we see race being used to shape quarantine practices,⁸ or the deployment of police to deal with high rates of drug trade and use in ethnically heterogenous parts of cities.⁹ The expediency of coercive public measures might be unconsciously too tempting not to use against marginalised populations, especially when public health workers are stretched to – or beyond – capacity, such as during a pandemic. As noted by Coker in the context of the treatment of tuberculosis, coercion often begins “with those least able to protest or resist” like the economically poor.¹⁰

The benefits and burdens of coercive public health measures, used in the name of risk mitigation and precaution, must be distributed in a just and equitable manner.¹¹ One key focal point of social justice, which is often referred to as a foundational pillar of public health,¹² is the fair distribution of public goods, e.g. food and housing, that lead to good health. The tangible evidence of social justice is observed in the importance afforded research and teaching on the social determinants of health; their inclusion in the medical school curriculum and the many Master of Public Health students enrolled in universities across Australia are a testament to their importance. It follows, then, that concern for the just distribution of the resources necessary for good health would also suggest a concern for the fair use of public health resources and the fair implementation of public health measures, including coercive ones. Unless there exists evidence to the contrary, the burden of being subject to coercive measures, including precautionary measures, cannot alone be borne by marginalised populations time and again.