Crisis, justice, and managing the appetite for risk

The phrase ‘never let a good crisis go to waste’ is often (mis)attributed to Winston Churchill. It expresses the common perception that the sentiments evoked by crisis can be used to manipulate power relations and strategically reposition influence. Although crises can arise from tangible, objectively catastrophic external events, governmental responses to crises are accompanied by processes of framing—construction, interpretation, and communication to the community subject to governance. The framing and management of crises can contribute to the expansion of regulatory scope. Moreover, the process of scaffolding regulatory legitimacy during times of crisis involves deployment and amplification of techniques of governance such as the use of data and expert knowledge, risk management, responsibilisation, and dispersal (or non-dispersal) of funds. In political systems that have adopted neoliberalist forms, these techniques of governance cascade from state-administered functions, such as policing, health, armed forces, and emergency services, to local communities, employers, and consumers. In this way we find responsibility devolved and detached from political decision-making and, more importantly, from democratic legitimacy. Dispersed governing mechanisms steer individual practices towards certain ends so that, rather than suffering the removal of the capacity for decision-making, individuals willingly abandon it. This article explores the intersection between regulation and justice and the methods of framing crises to legitimise governance actions where those actions constrain human rights and justice claims. Analysing Australian state and federal governmental and non-governmental actions during the COVID pandemic, it will use a case study method to assert that performative compliance activity is amongst the suite of sophisticated techniques to legitimise decisions made in circumstances of crisis, even when those decisions cross traditional normative boundaries, implicitly diminishing claims to legitimacy based on democratic discourse. This article will focus on two events: the decision to ‘lock down’ community housing towers, and the decision to arrest and charge with incitement a pregnant woman for starting a Facebook post to encourage breach of lockdown restrictions. Both decisions prompted expressions of concern by civil rights groups and lawyers that human rights had been breached.