What is the Commission’s view on limiting human rights during COVID-19?

Our starting point should always be that everyone’s rights are precious and should only be restricted where there is no other alternative. 

Protecting public health and protecting human rights are not mutually exclusive choices. Measures to protect public health can protect human rights, like the right to life. And restrictions on human rights can sometimes be justified if they are necessary to protect public health.

International human rights laws

International human rights law allows governments to restrict many rights and freedoms during a public health emergency, such as a pandemic, for the safety of everyone in the community. However, limitations on human rights should meet the following criteria: 

• They must be prescribed by law. 
• They must be necessary and proportionate to the evaluated risk.
• Governments must be transparent about the reasons why they consider restricting human rights is necessary. 
• Any limitations on human rights should be the minimum necessary to address the emergency and in place for the shortest time needed to deal with the emergency. 
• The measures must be consistent with international law and must not discriminate against people on the grounds of race, sex, age, disability or sexual preference. 

The need for the restrictions must be regularly assessed and the moment they are no longer necessary, they must cease.

The importance of independent monitoring

It is important to ensure independent monitoring of the measures is in place to keep human rights front of mind. Particular attention must be paid to upholding the rights and dignity of those who may be disproportionately at-risk to adverse impacts from the crisis.

We also need to be mindful of the “creeping authoritarianism” and erosion of rights and freedoms we have seen happen elsewhere in the world during COVID-19 and make sure we do not accept greater restrictions on our rights and freedoms than are needed to keep us safe. 

We must make sure that any restrictions are temporary and do not erode our freedoms longer term, such as by increasing surveillance or authorising intrusions on our privacy.

What is the Commission’s view?

The COVID-19 pandemic is a global challenge that has required extraordinary measures to protect public health. Governments across Australia have acted swiftly to protect everyone’s rights to life, health and to an adequate standard of living, while also focusing efforts on groups who are particularly vulnerable at this time.

To protect against the spread of the virus, difficult decisions have had to be made about restricting some basic human rights – such as freedom of movement and association. 

Governments are working hard to protect people, but their actions can sometimes result in limitations  of human rights. This can especially be the case when significant decisions have necessarily been made quickly, and previously untested policy solutions are implemented. 

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: Some of the important functions of the Australian Human Rights Commission are limited to examining human rights compliance at a federal level – but many of the measures to respond to the pandemic were not implemented at a federal level, even though they relate to federal responsibilities like the border control of Australia. 

The Commission has offered our assistance to State and Territory human rights bodies during this time. 

What are the Commission’s concerns?

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. 

Some of the decisions were put into legislation, others were introduced in other ways – which means they cannot be easily reviewed, and they don’t automatically require independent human rights scrutiny at the time of the decision. This means any human rights scrutiny happens after the measure is already put in place and affecting people.

The checks and balances that ordinarily exist are important to our democracy. Without appropriate transparency and accountability, there is a real risk of Australians being exposed to unnecessary restrictions of their rights and freedoms.