What are you doing about State-level emergency measures affecting human rights?

• It is the Government’s responsibility to uphold the rights of people living in Australia. 
   
• The Commission is limited by statute to providing scrutiny of federal legislation, and advice to the federal government on whether acts of the Government or acts done under Commonwealth laws breach human rights.
   
• The remit of the Parliamentary Joint Committee on Human Rights in the Australian Parliament is also to examine Commonwealth laws, and not the laws of States and Territories.
   
• Australia also has human rights, equal opportunity or anti-discrimination commissions in all States and Territories. Acts done by State or Territory governments or under State or Territory legislation may be considered by those State and Territory Commissions.
   
• Generally, it is the remit of State and Territory human rights, equal opportunity or anti-discrimination commissions to scrutinise measures enacted by State and Territory governments. 
   
• During COVID-19, the Commission has offered our support to State and Territory commissions to assist in any way we can. 

The Commission view:

• The Commission does not have the ‘remit’ to scrutinise acts done under State and Territory laws or acts done by State and Territory governments.
   
• Also, during the pandemic many decisions have been made at the National Cabinet – not in Parliament - and the responsibility for implementing those decisions has been split between federal, state and territory governments. This complicates the ability to ensure proper human rights scrutiny of the measures. For example, the Australian Human Rights Commission is limited by statute to providing human rights scrutiny of decisions implemented at a federal level – but many of the measures were not implemented at a federal level, even though they relate to federal responsibilities like the border control of Australia.
   
• While it is not within the Commission’s remit to oversee the actions of individual States, we have offered our assistance to  State and Territory human rights bodies during this time to help them do so.
   
• 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. 
   
• The checks and balances that ordinarily exist are important to our democracy. Australians have been, and continue to be, exposed to potentially unnecessary restrictions of their rights and freedoms because of the lack of transparency and accountability.