Where is the line on COVID-19 emergency measures?

“[I]t is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them.” – UN Human Rights Committee.
When making a decision about whether a measure unjustifiably limits human rights, international human rights law uses ‘the principle of proportionality’. The principle of proportionality is whether the ‘public interest’ achieved by the measure outweighs the limitations it places on people’s individual human rights. 

In other words, a worldwide pandemic could threaten many lives and have large, long-lasting public health impacts – so the need to combat this threat could justify more significant limitations on human rights than a measure designed to combat a less serious threat to the community.

One test is whether the measure being imposed is the only possible one that would work, or the least restrictive one that could achieve the desired outcome.  

Limitations to human rights must be justified and regularly scrutinised

Governments must be transparent about their justifications for emergency public health measures.

The justification needs to be detailed. It is not enough to assert that emergency measures are consistent with human rights law by default because they protect public health.

There needs to be robust and independent scrutiny of the measures and oversight of the impacts of the legislation throughout the period it is in operation.

All information about the emergency measures – including the detailed justification for them – must be effectively communicated to the public. It must also be communicated in ways that do not disadvantage vulnerable groups, in particular, CALD community members and people with disability.

What is the Commission’s view?

The Commission is concerned at the lack of transparency in explaining the continued justification for some emergency measures, and even for identifying which level of government is responsible for some measures. 

During COVID-19, many emergency measures have had to be put in place in an extremely short time period. As a result, many of the emergency measures have been put in place using delegated legislative instruments. 

These are laws which ministers or agencies are authorised to make by existing legislation, rather than new Acts of Parliament. They can be made and come into force quickly.

Measures put in place using delegated legislation do not go through the same process of human rights scrutiny as new Acts of Parliament. They don’t automatically require independent human rights scrutiny at the time of the decision. 

For example: Under normal circumstances, before a bill becomes a law, a Parliamentary Committee will seek input from subject matter experts on the bill and its impacts.

All bills introduced into Parliament also need to have a human rights statement of compatibility, which contains an assessment on whether the bill is compatible with the rights and freedoms recognised in the international human rights treaties Australia has signed. 

Scrutiny of legislative instruments usually occurs after they are made and in operation. This means any human rights scrutiny happens after the measure is already put in place and affecting people’s lives.

Typically, Parliament can vote to overturn (or ‘disallow’) a legislative instrument. 

Legislative instruments that are subject to disallowance must also have a statement of compatibility with human rights when they are made, which sets out reasons for why any restriction on human rights is appropriate.

However, many of the COVID-19 legislative instruments do not contain these protections. For instance: 

• The main legislative instrument under the Biosecurity Act is not disallowable – meaning that it cannot be overturned by Parliament.
• The main legislative instrument under the Biosecurity Act did not include a statement of compatibility, meaning there was no standard assessment of human rights impacts and their justification, despite the fact that the instrument did limit some human rights.
• There was no consultation with human rights experts or the public on the legislative instruments prior to them being made.
• The Parliamentary Joint Committee on Human Rights was only able to analyse these legislative instruments to see whether they impacted negatively on human rights after they were already in force. 

We think it is very important that there is independent human rights scrutiny of all COVID-19 emergency measures – not just at the beginning when they are introduced but during the entire time they are in operation – to make sure they are always necessary, proportionate, and that they come to an end when they should.

Limitations to human rights must be temporary 

Temporary means: 

• not permanent
• in place for the minimum duration needed to achieve the goal. 

It is hard to know in advance how long measures will be necessary to combat COVID-19 particularly as it becomes clearer that the pandemic may continue worldwide for some time. 

Although some limitations have been put in place with timeframes for when they must come to an end, it is still essential to monitor the measure in action to ensure it is still necessary and justified – and to discontinue it when it is no longer necessary and justified.

Some measures may need to be in place for longer than others – but we must be particularly careful that measures which have serious impacts on people’s human rights are only in place for the minimum time necessary.

We need to ensure that any legislation that limits human rights is in force only for the duration of the crisis and not permanent.

Limitations to human rights must be non-discriminatory 

Human rights are for everyone, everywhere, every day. In Australia it is unlawful to discriminate against people on the basis of age, disability, race, sex, intersex status, gender identity and sexual orientation in the administration of Commonwealth (federal) laws and services (and also in employment, education, the provision of goods, services and facilities, accommodation and sport).

For example: It is not discriminatory for a state government to insist that people wear masks in public during a pandemic (provided suitable exemptions are in place for groups of people who are unable to wear masks, or where mask wearing is not possible). But it could be discriminatory if they said that only women had to wear the masks.

Not all different treatment constitutes discrimination. Different treatment may be acceptable under international law if the criteria for the different treatment is reasonable and necessary to achieve a legitimate purpose. 

It is reasonable to make exceptions to a rule that people must wear a mask in public for people who cannot easily wear a mask – for example, people with a disability. This does not discriminate against people with a disability – but not having the exemption might.

For more information on mandatory requirements to wear a face mask and human rights, click here.