AQ: Australian Quarterly
Some rights, some of the time
The state of human rights across Australia
There is a fundamental tension at the heart of all societies – the balance between individual rights and liberties against the interests of the collective, such as public safety. This tension is managed through laws and policy, including human rights laws that ensure that our governments act in appropriate and proportionate ways.
These mechanisms can be sorely tested in extraordinary times, including during a pandemic. Such a time raises questions about how well governments can protect the community from infection while simultaneously respecting individual rights.
In this article, we set out the state of human rights law in Australia. We also examine two issues related to the COVID-19 pandemic: the provisions of the Biosecurity Act and First Nations responses to the pandemic. We then ask whether Australian law needs reform.
Human rights protection in Australia
People are often surprised to learn that Australia does not have a national Charter or Bill of human rights. This surprise is understandable: Australia is the only democratic country in the world without such a national law. Indeed, the only other countries in the world without a Charter are the Vatican City and Brunei.
In addition, Australia has very limited rights protection in the Constitution. The free exercise of religion in section 116 of the Constitution is a notable example, as is the ‘freedom of political communication' that the High Court has said is implied in the Constitution.
Other rights are protected in legislation, such as the Commonwealth Racial Discrimination Act, or legislation at the level of the states and territories. Additional rights are protected by the common law. However, without a comprehensive and federal Charter of rights, rights protection in Australia is scarce and patchy.
This national gap is particularly unusual because Australia is generally seen to be a proponent of human rights (with some important exceptions, such as the treatment of asylum seekers). Australia is a party to the major international conventions on human rights – including the Universal Declaration of Human Rights (1948), adopted by the United Nations after the atrocities of the Second World War and the Holocaust.
This declaration articulated the shared beliefs that human rights are ‘a common standard of achievement for all peoples and all nations'. However, the declaration – while highly authoritative – is not legally enforceable, so nations then negotiated and agreed to two conventions (which are legally enforceable for those nations that have signed and ratified them and made them part of their domestic law). These are the International Covenant on Civil and Political Rights (1966), and the International Covenant on Economic, Social and Cultural Rights (1966).
Australia has agreed to these conventions, and the rights set out in them are enforceable at the international
level. However, without a national Bill of Rights these obligations do not form part of our law and cannot be enforced within Australia.
The best protection on offer in Australia is provided at the state and territory level in the human rights acts in the ACT (2004), Victoria (2006) and Queensland (2019). These instruments mainly integrate the rights found in the International Covenant on Civil and Political Rights into the laws of those jurisdictions. As a result, individuals in some states can enforce some human rights, some of the time – while other Australians have to appeal to the United Nations when their human rights are breached, as they have no legal remedy in Australia.
In 2008, a National Human Rights
Consultation process in Australia recommended that Australia adopt a federal charter of rights. Despite this recommendation – and the strong community support behind it – the Rudd government decided not to proceed with a charter of rights, and instead introduced a new parliamentary scrutiny act.
The Human Rights (Parliamentary Scrutiny) Act 2011 was instead passed during the time of the Gillard Government. This act requires parliamentarians to consider the impact of laws on human rights, before those laws are enacted. First, there must be a ‘Statement of Compatibility' issued for any new act or regulation. This is typically written by the government department that drafted the proposed legislation. This is added to the explanatory memorandum, used by parliamentarians to understand the proposed new law. The statement of compatibility must explain whether and how the new law will affect human rights. If it does, the statement needs to explain whether there is a justification for doing this.
This approach sets down procedures to bring human rights problems to light when laws are made. However, there is still a gaping hole – there are no remedies or consequences if Parliament does pass a law that infringes upon basic rights or freedoms. A Charter would strengthen this Parliamentary Scrutiny Act, by ensuring that there
Individuals in some
states can enforce
some human rights,
some of the time –
while other Australians
have to appeal to the
is a consequence if parliament – or government departments, in the provision of services like aged care, prisons or hotel quarantine during COVID-19 – breaches human rights.
Human rights protection in the time of COVID-19
Against this background of scarce human rights protection, the issue of government powers is particularly acute – and even more so, during the time of a pandemic. With the onset of COVID-19, human rights have had to be considered in the light of public health requirements. How can we ensure the welfare of all members of a community? How do we regulate our interactions with each other? How do we balance our freedoms with our responsibilities to each other?
Some answers to these questions are found in the Biosecurity Act 2015, a piece of legislation that foresaw the possibility of a pandemic and made provision for the government to have special powers during such a time. These powers include numerous ways in which the government can control or compel individuals. For example, a person may be compelled to remain in isolation, be subject to medical examination, or submit to treatment; and if they fail to comply with such directions, they may be jailed for up to 5 years.
The most extreme powers become available once the Governor-general has declared a ‘human biosecurity emergency' under the Biosecurity Act. This occurred on 18 March 2020, thereby allowing Federal Health Minister Greg Hunt to determine ‘any requirement' and make ‘any direction' to control the spread of COVID-19. His decisions cannot be disallowed by Parliament, and he can override other laws. In effect, the Health Minister is granted dictatorial powers to take what action he believes is needed to protect the community from the spread of the disease.
State governments also have legislation that permits them to undertake extraordinary actions to protect the community. For example, in Victoria, the Public Health and Wellbeing Act 2008 allows a ‘state of emergency' to be declared, which occurred on 16 March 2020. Again, this Act (and the declaration of emergency under the Act) confers significant powers (known as ‘emergency powers') onto the Victorian Chief Health Officer.
In Victoria, these ‘emergency powers' have been used to restrict the movement of people in the Melbourne area, including through the requirements to stay within 5km of home, to wear a face mask outside the home, and to abide by an 9pm-5am curfew.
The restrictions in Melbourne have been particularly severe, in line with a significant outbreak of the virus. All over Australia, federal and state laws have been used to impose extraordinary restrictions on our liberties. These are not restrictions that many of us have experienced before. They are significant limitations – and may sometimes rise to being breaches of human rights.
Controversial examples include the sudden lockdown of Melbourne's public housing towers, concerns about hotel quarantine, and the inability of Australian citizens to return from overseas. In each of these cases, there are real questions about human rights violations caused by government action. There was even a recent High Court challenge to Victoria's restriction on movement of more than 5km from a person's residence, on the basis of a possible implied freedom of movement in the Constitution (but on 6 November 2020, the High Court dismissed the case on the basis that there was no basis in the Constitution to imply such a right).
But not all government policies are breaches of human rights. For example, some have tried to claim that the
requirement to wear a face mask is a breach of human rights (particularly the right to freedom of expression), but this is not convincing. Human rights are not just for the protection of the individual, but also for the community; and rights like freedom of expression are not absolute – they must give way to public interests, and compelling need. Individual liberties can be restricted, and this is justified based on the need to control the spread of disease. Ultimately, this benefits our society, and allows it to function.
Nonetheless, in the absence of a national human rights Charter – and the public education that must accompany such a Charter – it is little wonder that there is confusion or misinformation about human rights. The tensions between individual rights and public interests are inevitable, and without a national framework for resolving them, individuals can make incorrect claims about their rights.
In those states with human rights acts (the ACT, Victoria and Queensland), there is a framework for thinking through these questions. In particular, the human rights laws make clear that reasonable limitations on human rights can be permissible and justified, in certain circumstances. These circumstances are to be determined by examining the right; the importance, nature, and extent of the limitation; the relationship between the
The Judge held that the curfew was ‘a major restriction of human rights and liberties of the free people of Victoria', but that ‘the limitation of, and restrictions on, human rights caused by the Curfew were… proportionate.
limitation and its purpose; and any less restrictive measure that could achieve the purpose of the limitation (see, for example, the Victorian Charter of Human Rights, s7(2)).
This means that there is a balancing exercise between the protection of human rights on the one hand, and on the other hand, the need to limit those rights in particular circumstances. This is known as a ‘proportionality' test, as the limitation on the right should be proportionate to the legitimate aim. The pandemic is a classic case of this: rights are limited, but they should only be limited to the degree necessary to achieve a lower transmission of COVID-19.
The example of Melbourne's curfew shows how the Victorian Charter, and the proportionality test, work. The curfew was ended in September, after COVID-19 infections decreased and it was no longer a ‘proportionate' measure to protect public health. The Chief Health Officer, Brett Sutton, acknowledged the importance of the Victorian Charter of Human Rights in making this decision, when he said, ‘Over the course of the last couple of weeks ... we are getting down to one to three community cases per day and so in reflecting on the obligations of the Victorian Charter (of Human Rights) and the Public Health and Wellbeing Act and (the) issue of proportionality, it is my view and it was the public health
team's view, that the curfew is not a proportionate measure to have in place going forward.'
On 2 November 2020, the Supreme Court of Victoria handed down a case on the legality of the curfew, which examined the human rights implications of the curfew and the provisions of the Victorian Charter of Human Rights. The Judge held that the curfew was ‘a major restriction of human rights and liberties of the free people of Victoria', but that ‘the limitation of, and restrictions on, human rights caused by the Curfew were… proportionate to the purpose of protecting public health.' The Judge was also satisfied that the public health official who had made the decision to impose a curfew had made their decision after considering the human rights provisions of the Charter.
We can see that Charters of Rights are helpful when making policy decisions in a pandemic. The Charter has assisted Victorians to navigate the pandemic, and to shape the policy responses to it that balance individual rights with community protection. But at the national level, in the absence of a federal Charter, it is far less clear. The powers of the Biosecurity Act mean that we are being asked to put huge amounts of trust in our politicians, with no real way to test or challenge the compliance of their decisions with human rights.
The limited ways in which there is some human rights protection – primarily, the requirement that there is a human rights compliance statement issued to accompany legislation when it is introduced to parliament – are not enough. This is a dangerous situation to find ourselves in, and it is unfortunate that human rights do not have more of a role in Australia to measure, justify and limit government action.
COVID-19, Indigenous peoples, and self-determination
One area in which human rights have ensured a positive outcome regarding COVID-19 is the right of self-determination and actions to stop COVID-19 in Indigenous communities. This example shows how the human right to selfdetermination has been given greater emphasis and expression during the pandemic, with important results.
COVID-19 could have been a tragedy for Indigenous people in Australia.
Given the higher rates of chronic illness in Indigenous populations, and other issues including overcrowded and insecure housing, there was the potential for COVID-19 to spread quickly and be very deadly in Indigenous communities.
Already, the United Nations High Commissioner for Human Rights has noted that COVID-19 has disproportionately affected Indigenous peoples worldwide, ‘exacerbating underlying structural inequalities and pervasive discrimination'.
Writing in The Saturday Paper, Amy Mcquire noted that Indigenous communities in Australia have a significant history of dealing with epidemics. Most recently, in 2009 the H1N1 virus had a greatly disproportionate effect on Indigenous people in Australia, with a death rate of around six times higher than the general population.
Mindful of this, Aboriginal communities in Australia acted quickly when
initial reports came in of COVID-19. Well before the federal government imposed travel restrictions in March, various Aboriginal communities had closed their borders – for example, the Anangu Pitjantjatjara Yankunytjatjara Lands in South Australia, and some Cape York communities in Far North Queensland.
A major emphasis was also placed on health messaging, with Aboriginalcontrolled health services publishing a significant number of messages about COVID-19 to increase health literacy. This included information in Indigenous languages: for example, the Northern Land Council produced short videos (widely available on Youtube), made into 18 Indigenous languages.
Furthermore, the Australian government and the National Aboriginal Community Controlled Health Organisation worked together to release a Management Plan for Aboriginal and Torres Strait Islander
Populations. This plan was based on principles including shared decisionmaking between government and indigenous people, community control, and human rights. The UN High Commissioner for Human Rights called this a ‘promising practice'.
As of late September 2020, there were 145 cases of COVID-19 confirmed in Aboriginal and Torres Strait Islander people, with no cases requiring intensive care and no recorded deaths. By contrast, the Australian total of cases numbered 26,753, with 674 deaths. The Aboriginal and Torres Strait Islander cases represented just 0.5% of all confirmed cases, while Indigenous people make up 3.3% of the total population. These numbers show that COVID-19 has been less prevalent in Aboriginal and Torres Strait Islander populations compared to the overall population, despite the higher risk.
This outcome reflects the success
Indigenous peoples have the right to self-determination.
By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Indigenous communities have had in limiting the spread of COVID-19 within their populations. Their COVID-19 response aligns with the right to selfdetermination. Self-determination is an important human right; listed as the first Article in both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Sometimes understood only as a right to create a new state, self-determination is also concerned with political involvement and power within a state.
The United Nations Declaration on the Rights of Indigenous Peoples, article 3, states that:
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Self-determination, for Indigenous peoples, is about ensuring that Indigenous people and communities have power over their lives and destinies.
This right is given expression through Indigenous-controlled organisations exercising the power to determine their own actions and roles in the COVID-19 response. Rather than being imposed by the government in a top-down manner, communities organised themselves and responded to COVID-19 in a manner that best worked for them. The
results show that exercising their rights to self-determination had significant, positive public health outcomes.
The human rights of Indigenous peoples in this pandemic remains a very challenging issue. For example, recent reports show that in the first lockdown in Melbourne, Aboriginal and Torres Strait Islander people made up 4.7% of those fined for breaching lockdown, despite the fact that they only make up 0.8% of the population in Victoria. This may suggest an overpolicing of Indigenous people during the pandemic.
Meanwhile, there are concerns about the price of food in remote communities, with food insecurity posing a potential threat to the pandemic responses there. While Indigenous communities exercising self-determination demonstrates the importance of human rights in practice, major gaps in protection are still evident.
The pandemic has further exposed the importance of human rights protection in Australia. The example of Indigenous responses to COVID-19 shows the importance of giving practical expression to human rights including the right to self-determination. Meanwhile, the implications of the Biosecurity Act demonstrate the exceptional powers of our governments during a pandemic.
Those places with a human rights act – like Victoria – have a framework for thinking through how to approach questions of limiting human rights for the public good. But at the federal level, we have no such framework. All of these diverse instances show how useful and important a Charter of Human Rights could be.
A Charter of Rights would make a clear and positive difference to rights protection, in several ways. Basic human rights would become legally enforceable throughout Australia, regardless of where people live. A Charter would both compel federal parliament to consider rights issues before passing law, and give citizens redress if their rights are violated. It would also educate people about exactly what their rights are.
Such empowerment is particularly important in times of crisis, when governments are exercising greater powers and restricting people in exceptional ways.
Moreover, it is not just government that would need to take greater account of human rights – it would also be agencies and departments, including the police, aged care services, prisons and hospitals. A charter would provide for consequences if these agencies did not meet their obligations. Again, in a pandemic, this is particularly important as more individuals interact with these departments, and the people receiving these services can be more vulnerable than usual.
In Australia in 2020, from bushfires to a pandemic, we have experienced significant crises. These experiences also show us how crucial it is to have social cohesion, and to protect society's most vulnerable people. A Charter of Rights will assist us to address future crises in a way that protects individual rights and supports our community.
Places with a human rights act – like Victoria – have a framework for thinking through how to approach questions of limiting human rights for the public good. But at the federal level, we have no such framework.