This is one of a special series of posts exploring the public law implications of the COVID-19 pandemic. For more information on the Gilbert + Tobin Centre’s work in the area of public law and public health, see here.

BY KYLIE EVANS AND NICHOLAS PETRIE

Note: in the interests of simplicity, hyperlinks to legislation in this post link to Victorian law, unless otherwise indicated. The table at the end of the post contains information about equivalent ACT and Queensland provisions. The material cited in this post is current as at 4 May 2020.

Introduction

The COVID-19 pandemic has caused a devastating loss of life and economic stagnation across the globe. Governments have quickly introduced laws and policies to reduce the spread of the virus, ease the burden on health systems, and assist flailing economies. Australia is no exception in this regard. The scale and scope of the government response at the Commonwealth, state and territory levels is nothing short of massive.

This post considers the possible implications for the COVID-19 response arising from the Human Rights Act 2004 (ACT) (‘ACTHRA’), the Charter of Human Rights and Responsibilities 2006 (Vic) (‘Victorian Charter’) and the Human Rights Act 2019 (Qld) (‘QHRA’) (collectively, the ‘Australian HRAs’). We also consider the somewhat unique model of rights protection provided at the Commonwealth level under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (‘2011 Act’). As we show, the Australian HRAs and the 2011 Act have the potential to play a key role in scrutinising some laws implementing the COVID-19 measures, and action taken under those laws.

Of course, the outbreak of COVID-19 required quick, decisive and effective action to be taken by Australian governments. We do not propose to comment on what the most appropriate measures should have been, or should be in the future. Nor do we seek to draw conclusions on the compatibility of actions taken under such measures with the frameworks for the protection of human rights established by the Australian HRAs. Such assessments are complex and both fact- and jurisdiction-specific, requiring consideration of various legal, health, scientific and economic factors. However, history tells us that in times of crisis, human rights are vulnerable to serious infringement. Moreover, measures taken in a crisis can endure for prolonged periods. Indeed, while governments are slowly beginning to ease certain restrictions in Australia, restrictions of some kind are likely to be in place for some time. Our aim is to explore some of the available legal tools which can be used to scrutinise action taken, in order to ensure that human rights are protected in an appropriate manner, notwithstanding the need for effective and ongoing action in response to the virus. This is especially so as some of the usual avenues of government scrutiny, including through parliamentary sittings and human rights scrutiny processes, have not occurred. We explore this issue further below, but first, look at the range of rights that have been implicated since the COVID-19 outbreak in Australia.

Rights and Proportionality

Whether the action taken by the Australian Commonwealth, state and territory governments in relation to COVID-19 will have breached the rights protected by the Australian HRAs and the 2011 Act is dependent on a form of proportionality analysis. Indeed, balancing competing public and private interests lies at the very heart of human rights law. For example, all of the rights protected under the Australian HRAs may be limited under those Acts. This includes even those rights, such as the right to life, which are considered ‘supreme’ and non-derogable under international human rights law. The relevant limitation clauses under the Australian HRAs require limits imposed under law to be reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

The jurisprudence that has developed on the limitations clause in the Victorian Charter requires that there be reasonable proportionality between the limitations imposed on the rights or freedoms and the object or purpose which the limitation seeks to achieve. This proportionality principle provides an analytical tool to ensure measures taken in the ACT, Victoria and Queensland are consistent with the rights set out in the respective legislative instruments. In our view, it may also provide a useful framework for scrutinising action taken by other Australian governments.

Rights Implicated

In the relatively short time since the Australian Commonwealth, state and territory governments began to act in relation to COVID-19, a number of rights issues have already arisen.

One of the most ubiquitous and significant human rights implications of the COVID-19 measures taken to date is the restriction on freedom of movement. Restrictions have been implemented within states and territories (for example by requiring residents to stay at home, subject only to specified exceptions), and more broadly (notably through the closure of several state borders). Some of these restrictions on movement could be challenged at the Commonwealth level, including under the Constitution (albeit with perhaps a slim prospect of success). To the extent that restrictions on movement are imposed by the governments of the ACT, Victoria and Queensland, these may be unlawful infringements of the protection of freedom of movement afforded under the Australian HRAs. This is of particular interest where police fine people for breaching the directions on social distancing. These directions have been criticised (including by senior members of the police) for lacking clarity, resulting in inconsistent application. Police are public authorities and public entities under the Australian HRAs, and are therefore bound by the conduct obligations set out in the Australian HRAs, including to act compatibly with human rights and give proper consideration to human rights in their decision-making. Further, if these fines are being inconsistently and unjustifiably applied to certain minority groups, this discrimination may also be a breach of the right to equality.

A range of other rights issues have arisen. For instance, Victoria Police arrested and fined activists holding a car convoy protest outside a hotel in Melbourne where refugees and asylum seekers were being detained. This action may have infringed rights relating to protest, such as rights to freedom of expression, peaceful assembly and freedom of association and taking part in public life. In addition, the subject matter of the protest also raises human rights concerns. Detention and quarantining may increase a person’s risk of contracting COVID-19, which raises questions as to whether the government has fallen foul of the requirement for humane treatment while liberty is deprived or even the prohibition against cruel, inhuman or degrading treatment. Analogous claims could also be made by prisoners, especially those who are vulnerable to the effects of COVID-19 or who pose a low risk of reoffending if released. Similarly, the detention of children could be said to disproportionate and therefore not in accordance with the requirement to act for the best interests of the child.

These questions about criminal detention also raise concerns about the right to life, which at least in international human rights law imposes positive obligations on States parties to protect against a risk to the life of persons in their care. However, the right to life may also prove important in justifying much of the government response, which has been taken for the direct purpose of reducing loss of life. There are other obvious flashpoints within the criminal justice system. As the NSW Supreme Court recently held, the virtual hearing of a criminal case because of court closures in the wake of COVID-19 may not constitute a fair hearing, which is a right under the Australian HRAs as well as at common law.

Another area of potential concern relates to the right to education, which is protected under s 36 of the QHRA and s 27A of the ACTHRA. Both of these provisions provide a right of access to school education appropriate to the child’s needs. Questions arise as to whether the home-schooling measures in place in Queensland and the ACT could breach these rights in certain instances. An obvious issue arises where students don’t have access to learning resources or classes online. However, any potential breach of the right to education may be ameliorated by the provision of laptops, internet access devices and alternative teaching mechanisms to students, as has been planned to occur in Queensland. Perhaps more problematic is the provision of education services to some children with learning difficulties. For some such children, the provision of home-based learning may fall short of their education needs because of their learning difficulty. In such cases, a claim that s 36 of the QHRA has been breached could be made in conjunction with a claim that the right to equality under s 15 of the QHRA has been breached, or alongside an anti-discrimination claim. An analogous claim under the ACTHRA could rely on s 27A(3)(a), which provides that ‘everyone is entitled to enjoy these rights [to education] without discrimination’.

However, claims that the right to education has been breached would face difficult hurdles. As with the right to health services under s 37 of the QHRA, the right to education in the QHRA and ACTHRA is modelled on the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), which in general only requires the rights to be ‘progressively realised’ and subject to resource availability (see in particular art 2 of the ICESCR). The ACT Attorney-General noted as much when introducing the 2012 Amendment which inserted the right to education into the ACTHRA, when he stated that the government was committed to a ‘step-by-step approach in realising this right’. As such, it is likely that the ACT and Queensland governments would argue that any shortfalls in the provision of access to adequate education services for children was rational and reasonable, owing to the extreme pressures on resources that the COVID-19 outbreak has caused.

Looking forward, governments at all levels are already focusing on the ‘road out’. Of particular note is the recently released COVIDSafe app, the widespread uptake of which the Commonwealth government believes has significant potential to slow the spread of the virus in Australia. And while this is a positive development, the app does raise some concerns about the right to privacy, which may also arise in relation to further contact tracing measures taken by Commonwealth, state and territory governments. Whether the right to privacy has been breached by such measures will depend on matters such as how data is collected, who will (and will not) access the data, how the data will be used, and how and when the data will be destroyed. In this regard, the foreshadowed action by the Commonwealth government to release the source code of the COVIDSafe app and to enshrine the regulation of the app in legislation is welcome. Such transparency in future measures taken by governments should be encouraged, as a means to reduce the likelihood of privacy breaches and ensure the public has confidence in the measures being taken.

Human Rights Scrutiny

Despite the range of potential rights issues arising from the COVID-19 measures, there has been limited human rights scrutiny to date. This is in part because of heavily reduced sittings of Parliaments across the country, and because of the short time frame in which measures have been implemented. In this environment, the role of Parliamentary Committees may play an important role in scrutinising human rights issues. It is welcome to see that the Joint Parliamentary Committee on Human Rights (‘JPCHR’) resolved on 9 April 2020 to meet regularly by teleconference to continue its scrutiny work, including legislation relating to the COVID-19 pandemic and has already reported in this area. However, another important mechanism of rights scrutiny, being ‘statements of compatibility’, has been somewhat neglected.

One of the common features of the Australian HRAs and the 2011 Act is that they each require pre-enactment scrutiny of Bills for human rights compatibility via ‘statements of compatibility’. Similar requirements exist in Victoria for statutory rules and legislative instruments, in Queensland for subordinate legislation, and at the Commonwealth level for legislative instruments that are disallowable under s 42 of the Legislation Act 2003 (Cth).

Regrettably, a number of Determinations have been made by the Commonwealth government without statements of compatibility, presumably because no statement was required. For example, the recent COVIDSafe Determination was made under s 477 of the Biosecurity Act 2015 (Cth) which states that ‘section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination’. However, despite not being under an obligation to issue a statement of compatibility in relation to such Determinations, the relevant Minister could still have done so. Indeed, the JPCHR has said ‘given the potential impact on human rights of legislative instruments dealing with the COVID-19 pandemic, the committee considers it would be appropriate for all such legislative instruments to be accompanied by a detailed statement of compatibility’.

It is worth pausing to consider what difference a human rights compatibility statement might have made. Had a statement of compatibility been required, the Commonwealth Health Minister responsible for preparing the COVIDSafe Determination would have been required to set out an assessment of the compatibility of the Determination with the human rights and freedoms contained in seven core international human rights treaties which Australia has ratified (see definition of ‘human rights’ in s 3 of the 2011 Act). Put simply, the statement of compatibility requirement necessitates that the Minister squarely confront how the legislation interferes with rights and consider whether restrictions on rights are proportionate. Having not prepared one, this form of human rights scrutiny by the Commonwealth did not occur in respect of that Determination. Such a compatibility assessment will now need to be made if the government brings the proposed legislation relating to the COVIDSafe app before Parliament. However, it would have been beneficial if this assessment was produced much earlier, when the COVIDSafe Determination was made.

Remedies

While the Australian HRAs provide for pre-scrutiny of laws, they also provide remedies for rights breaches, albeit that the remedial regimes in the Acts differ somewhat. For example, the provision for human rights complaints to the Queensland Human Rights Commission under the QHRA is not replicated in the ACTHRA or the Victorian Charter.

In so far as litigation in court, the most likely remedy might be for breach by a public authority or public entity of the conduct obligations set out in the various Australian HRAs. Of recent interest is the interlocutory decision in Rowson v Department of Justice and Community Safety, in which Ginnane J of the Supreme Court of Victoria considered the possibility of an injunction to restrain the Secretary of the Department of Justice and Community Safety from acting unlawfully under the conduct obligations in s 38(1) of the Victorian Charter.

In future litigation relating to COVID-19 measures, practitioners might look to some of the decided cases to see the range of relief available. A range of remedies have been ordered under the Victorian Charter including mandatory and prohibitive injunctions, permanent stays of a criminal prosecution, orders in the nature of certiorari quashing a decision, habeas corpus, and declarations that decisions made were unlawful. For example, in the Barwon Prison Case, the Supreme Court of Victoria prohibited the Secretary of the Department of Justice and Regulation from detaining children at a place of detention that had been declared unlawful because it breached the children’s human rights. The Court also directed the removal of a child from Barwon Prison to a youth justice precinct.

Conclusion

Australian governments have taken strong action in response to the COVID-19 pandemic in order to protect the public, the healthcare system and the economy. Thankfully, these measures have so far yielded positive results. Nevertheless, it is important that the legal measures taken to date, and those implemented going forward, infringe our rights and liberties in a manner and for an amount of time which is proportionate to the threat faced. The application of these measures by public authorities such as the police also needs to be proportionate and free of unjustified discrimination. The proportionality tests under the Australian HRAs provide a helpful standard for all jurisdictions to use to determine whether the measures taken to fight COVID-19, and their application in practice, have been human rights-compliant. In the ACT, Victoria and Queensland, the Australian HRAs may also be relied on in court proceedings where the legal measures, or their application, have fallen short of these requirements.

Table of equivalent provisions

Subject ACTHRA Victorian Charter QHRA
Equality rights Section 8 Section 8 Section 15
Right to life Section 9 Section 9 Section 16
Prohibition against from torture and cruel, inhuman and degrading treatment Section 10 Section 10 Section 17
Protection of the best interests of the child Section 11(2) Section 17(2) Section 26(2)
Right to privacy Section 12 Section 13 Section 25
Freedom of movement Section 13 Section 12 Section 19
Peaceful assembly and freedom of association Section 15 Section 16 Section 22
Freedom of expression Section 16 Section 15 Section 21
Right to take part in public life Section 17 Section 18 Section 23
Right to humane treatment when deprived of liberty Section 19 Section 22 Section 30
Right to a fair hearing Section 21 Section 24 Section 31
Justified limitations of rights Section 28 Section 7(2) Section 13
Right to education Section 27A Section 36
Right to health services Section 37
Conduct obligations Section 40B Section 38 Section 58
Statements of compatibility Section 37 Section 28 Section 38

Kylie Evans is a barrister and honorary Senior Fellow at Melbourne Law School. Nicholas Petrie is a PhD candidate at the University of Cambridge, where he is a Gates Cambridge Scholar.

Suggested citation: Kylie Evans and Nicholas Petrie, ‘COVID-19 and the Australian Human Rights Acts’ on AUSPUBLAW (06 May 2020) <https://auspublaw.org/2020/05/covid-19-and-the-australian-human-rights-acts>