Where is the line on COVID-19 emergency measures?

They must be prescribed by law 

• To be prescribed by law, limitations on people’s human rights must be clearly set out in laws (or a comparable measure, for example, delegated legislation) that are public and made in advance. 
• The laws must disclose with sufficient certainty the extent of interference with people’s human rights and the reasons for it. 
• The laws must be clear, specific, targeted and have defined limits. They must not give governments unchecked powers.
• The law must be clearly communicated and accessible for people so it can be understood by everyone in the community 

The Commission’s view

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. 

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’s lives.

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.

They must be necessary and proportionate 

The Australian Human Rights Commission is not a public health body. We can only provide guidance from a human-rights perspective as to whether emergency measures are necessary and proportionate.

• Any measures that limit people’s human rights must be necessary. 
• This is important as we need to limit the ability of governments to interfere with our fundamental freedoms. 
• COVID-19 is a very serious threat to public health, and to the human rights of people in the community (such as the rights to life, and the highest achievable standard of health). However, under international human rights law, governments have a responsibility to demonstrate that any limitations they put on rights are necessary and proportionate – however serious the threat.  
• The measures chosen must be the least intrusive measures possible that will still be effective.  
• Ultimately it is necessary to look at each measure on a case by case basis and see if the limits it places on human rights is proportionate to the benefit it achieves in combatting COVID-19.  

The Commission’s view:

We need to combat COVID-19 strongly and effectively. However, we also need to be very careful to avoid the creeping authoritarianism we have seen happen elsewhere in the world during COVID-19. 

We must make sure that we do not accept greater restrictions on our freedom than are needed to keep us safe.

They 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.

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.
• However, 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 delegated 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.
• Usually Parliament can vote to overturn (or ‘disallow’) a legislative instrument. Legislative instruments also usually have a statement of compatibility with human rights when they are lodged, 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:
  • 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 have a statement of compatibility conducted prior to introducing the instrument, meaning there was no standard assessment of human rights impacts and their justification, despite the fact that the instrument did negatively impact on human rights.
  • There was no consultation with human rights experts or the public on the legislative instrument prior to its making.
  • the Parliamentary Joint Committee on Human Rights has analysed these legislative instruments to see whether they impact negatively on human rights after they are 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.
 

They must be temporary 

• Temporary means a) not permanent and b) 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.

They 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).
• 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. For example, it is common sense 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.