COVID-19 is clearly a public health issue. But, is it also a human rights issue?
For the protestors outside Melbourne’s Shrine of Remembrance, the woman who refused to wear a mask in Bunnings, or the restauranteur who has commenced proceedings against the curfew in the Victorian Supreme Court, there is little doubt.
They believe directions adopted by the Chief Health Officer to control the spread of COVID-19 violate their rights.
The Premier of Victoria holds a different view. In light of the curfew, Daniel Andrews responded: “This is not about human rights. It’s about human life”.
Who is right – the Premier or the protestors?
All Australians enjoy human rights under international law. These include civil and political rights like the right to life, liberty and freedom of movement, and economic and social rights, like the right to health, work and education.
In Victoria, the Australian Capital Territory and Queensland special statutory schemes also recognise human rights and these rights are to be enjoyed at all times – including during times of crisis – like a public health emergency.
This was re-emphasised in May by the Human Rights Council, a United Nations’ body with 47 member states that includes Australia. The Council called on “states to ensure that all human rights are respected, protected and fulfilled while combatting the pandemic and that their responses to the COVID-19 pandemic are in full compliance with their human rights obligations and commitments”.
But what does this mean and how are states supposed to respect and protect rights?
It begins with the right to life.
Another UN body, the Human Rights Committee, has explained that the right to life is the “supreme right from which no derogation is permitted”. And the protection of this right actually imposes a positive duty on states to take appropriate measures to address conditions that arise and threaten life, including diseases like COVID-19.
So, Daniel Andrews is right to say that his Government’s response is about saving lives - but he’s wrong to suggest that this is not about human rights.
The right to life actually demands that his Government take these measures.
This doesn’t mean that every life lost to COVID-19 equals a violation of the right to life. The Government’s obligation is to take all reasonable measures to protect against threats to life.
But when taking measures to protect the right to life, the Government has had to restrict and interfere with other human rights – like freedom of movement and freedom of religion. This has led to claims by protestors that their rights have been violated.
However, interference with a human right does not mean that that right has been violated. Most human rights can be subject to limitation. The real issue is whether any interference or restriction is proportionate and can be justified.
So, how do we make this assessment?
One approach is to consider whether each of four requirements – legality, legitimacy, suitability and necessity – are satisfied.
· Legality – the restriction is contained in a valid law which is clear and accessible. Using the example of the curfew in Victoria, legality would be satisfied as the curfew is set out in the Directions issued by the Chief Health Officer due to his powers under the Public Health and Well Being Act.
· Legitimacy – the restriction pursues a pressing social need or a legitimate objective. The goal of public health would satisfy this requirement.
· Suitability – there is a nexus between the measure that is undertaken and the objective. It is sometimes referred to as the rational connection test and generally requires evidence from the State to indicate that the measure will help realise the aim.
Take the requirement to wear face masks; medical evidence now supports this measure because it reduces the risk of transmitting COVID-19. The same analysis would apply to restrictions on mass gatherings and public protests.
But the curfew becomes more problematic.
The Chief Health Officer has indicated there was no medical basis for this restriction. There is also no evidence that the risk of COVID-19 transmission is greater at night than during the day when people can move about for the four essential reasons.
The curfew could struggle to satisfy the suitability requirement and, if so, would not be justified.
· Necessity – this final requirement seeks to determine whether any less restrictive measures can be used to achieve the objective and is sometimes referred to as the minimal impairment test.
In the case of the curfew, the question would be whether it is really necessary given the strict restrictions already imposed as to when someone can leave their home.
It remains to be seen how the Victorian Supreme Court will resolve its case concerning the curfew. However, a human rights based approach is not just about balancing competing rights and the UN Secretary General has outlined principles that should inform a State’s response to the pandemic.
These principles focus on protecting lives and livelihoods, on developing measures to address the disproportionate impact of the virus, and encourage collaboration in the development of preventive and remedial measures.
The UN has explained that “this is not a time to neglect human rights” but “it is a time when, more than ever, human rights are needed to navigate this crisis”.
Rather than misunderstanding the scope of human rights or dismissing them as irrelevant, the challenge for all Australians, including political leaders, is to recognise the productive role that human rights can play in responding to COVID-19’s many challenges.
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