COVID19 and Human Rights in Australia: Part 1

21 April 2020

Written by Professor the Hon Kevin Bell AM QC
Director of the Castan Centre for Human Rights Law

The life of every person in the world has or will change because of the Coronavirus and COVID19, the disease that it causes.   Following its first internationally reported detection in humans in December 2019, on 30 January 2019 the World Health Organisation declared the existence of a Public Health Emergency of International Concern and on 11 March 2020  a pandemic.  By 19 April, there would be more than 2.2 million people infected and approximately 152,500 deaths worldwide, with 6,606 people infected and 70 deaths in Australia.   Now, many countries, including Australia, have legal restrictions that are unprecedented in peacetime over the movement and the working, business and private life of entire populations (as in Victoria and Queensland).  The purpose of this series of papers is to examine the human rights implications in the Australian context.

I begin here by considering why human rights matter when assessing the response of governments in Australia to COVID19.  In subsequent papers I will examine such topics as:  COVID19 responses that involve limiting rights in Australia, focussing on the principles of lawfulness, necessity and proportionality in respect of those limits;  COVID19 and vulnerable groups in Australia, focussing on the need to respect, protect and fufill the human rights of all persons and avoiding discrimination; and COVID19, human rights and government accountability, focussing on the arrangements in Australia as they are and could be.

(1) COVID19 and the response of governments in Australia: why human rights matter

The dire threat to human life represented by COVID19 and the pressing need for a strong government response everywhere brings into operation economic, social and cultural rights and civil and political rights.   Individually and together, these rights play a role within one international system of law that is universal, indivisible, interdependent and interrelated.  They are  reflected to a greater or lesser extent in the domestic laws of nations like Australia (see below).  In some states, such as South Africa, these rights are constitutionally protected.

Of the particular rights engaged by the COVID19 pandemic, there is on the one hand the right to life and the right to health.    On the other, there are  such rights as the right to freedom of movement and to privacy, family and home, as well as the right to work.  For present purposes it is sufficient to state that the general obligation of governments is to respect, protect and fulfill these rights, which belong to all people universally simply by being human.

This is not to say that all human rights are absolute and cannot be limited under any circumstances, even under strict conditions.  Rights may need to be balanced against each other when in conflict, and rights may need to be balanced against other pressing concerns or matters that arise in society, such as public health emergencies.  How a government responds to COVID19 presents both types of conflicts.

Human rights matter in the context of COVID19 because they impose an obligation upon governments to respect, protect and fulfill the rights to life and health of every person in the community without discrimination, and to do so in a way that does not unreasonably  or unjustifiably interfere with other human rights.  The underlying principles of human rights enable governments to appreciate both the fundamental nature of this obligation and what is at stake for individuals (and groups) when limitations on rights are taken too far, and to avoid doing so.

Respecting, protecting and fulfilling the rights to life and health

In the face of a pandemic that kills hundreds of thousands, infects millions and threatens the lives and wellbeing of billions of people, all persons expect governments to provide timely and accurate health information, protection from the disease, medical treatment when needed and, as soon as possible, a vaccine. The rights to life and health require governments to recognise and meet these expectations as a matter of right and obligation under international law with respect to all persons. This may involve legislative, administrative and budgetary measures on a massive scale, as it has in Australia.  Doing so goes towards respecting, protecting and fulfilling the right of people to life and to health.

This obligation has some domestic legal force at the Commonwealth level, where legislation and regulations are assessed against human rights standards that include these rights, and in jurisdictions where human rights legislation enshrines the right to life (Australian Capital TerritoryVictoria and Queensland) and the right to health (Queensland).  While the rightful claim and the pressing need for such a government response is the same everywhere, the capacity of developing countries to respond is much less. This should weigh upon the conscience of all nations with the ability, indeed the international legal obligation, to provide international assistance, including Australia.

People tend to take for granted what is never in question.  For most, it is never in question that more is needed than health (or health care) to live a dignified life.  A life lived in dignity is different from mere existence.  To give but a few examples, most of us need to exercise our natural capability to have contact with family and friends, to care for our children or aged parents, to work or engage in business, to have a home, to create or recreate,  to worship (for some), to seek legal redress against injustice (when necessary) and to travel near, far or wide.  Everyone either possesses such capabilities or has a natural potential to obtain them which human rights seeks to maximise.  Exercising these capabilities is part of living a dignified life which human rights seeks to respect, protect and fulfill.  Therefore, in the context of the COVID19 response, there are rights to consider in addition to the rights to life and health, such as the rights that underpin these capabilities, including those now to be examined.

Respecting, protecting and fulfilling the right to freedom of movement; to privacy, family and home; and to work 

Severe COVID19 restrictions have been imposed by governments all over the world, including Australia, which state (depending on the circumstances): do not travel, stay at home, self-isolate, go into quarantine, do not work unless your industry is classified essential, etc (see above).  These restrictions interfere with ordinary life and the enjoyment of basic human rights in significant ways.  Such restrictions can unreasonably and disportionately impact on Indigenous peoples and minority groups, and exacerbate existing inequalities in the enjoyment of rights.

Before we can begin to examine whether, to what extent and for how long the COVID19 pandemic would justify restrictions of these kinds, it is necessary to understand the meaning and importance of these rights in and of themselves.  As I have stated when writing in a judicial capacity, the meaning and importance of a particular human right is to be understood by reference to the ‘purpose [of the right] and the underlying values and interests that it is designed to protect’.   Whether a limitation on the right is reasonable and justified is not relevant when one is trying to understand that meaning and importance and those values and interests.  This allows us to focus upon what is personally at stake for individuals when restrictions are imposed upon their enjoyment of human rights, as the following discussion of the operation of three rights in the COVID19 context demonstrates.

Under Australia’s international law obligations, the right to freedom of movement is ‘the right to liberty of movement’.  In the Victorian Charter, it is the right ‘to move freely within Victoria and to enter or leave it and … to choose where to live’  (see also the Australian Capital Territory and Queensland Human Rights Acts).

At one level, the purpose of this right is obvious – to ensure that people (and families and groups) can move freely when and where they wish.  Important though this is, it is not an adequate understanding of the entire meaning and importance of the right.  The purpose of the right and the values and interests protected go well beyond freedom of movement as such, and encompass personal actuation and development.  Individuals usually want to exercise freedom of movement for reasons that are important to them personally.  Parents may go to visit their adult children and grandchildren, who are the joy of their life.  The first generation enjoys the social interaction; the second is supported in creating a new family; and new relationships are developing with the third.  The members of this three-generation family are living a meaningful and dignified life, not just existing.  Stay-at-home or do-not-travel directions interfere with these experiences and make for a life that is smaller and less fulfilling.

This is important to recognise in and of itself.  That the separation requirements may be reasonable and justified does not lessen the significantly adverse consequences for the individual/s caused by the interference.  Restrictions on the right to freedom of movement usually involve much more than physical restrictions; as in this example, they can involve serious social and developmental restrictions which, in turn, impact on the realisation of other rights, including the right to live a dignified life.  Social media contact can go only so far as a substitute.  This is the reason why the human right to freedom of movement is so important.  This is why government interference with the exercise of this right can cause serious personal hardship.  The interference may be reasonable and justified, but let us begin with understanding why and how much the right matters to individuals and groups and how high are the personal stakes involved in human terms.

Under international law, as accepted by Australia, the right to privacy is the right not to be ‘subjected to arbitrary or unlawful interference with [one’s] privacy, family, home or correspondence’.  In the Victorian Charter, it is the right ‘not to have [one’s] privacy, family or home unlawfully or arbitrarily interfered with’ (see also the Australian Capital Territory and Queensland Human Rights Acts).

Again, at one level, the purpose of this right is obvious - to ensure that people can have a private life without unlawful and arbitrary interference.  Important though this is, it too is not an adequate understanding of the entire meaning and importance of the right.  The purpose of the rights and the values and interests protected go well beyond personal privacy in the narrow sense of being left alone.  They encompass and protect the natural capability of individuals to exercise personal autonomy in the pursuit of their own aspirations and potential in their own private sphere.  This includes aspects of private life that involve interactions with others, as in social, family, work, business and spiritual life.  As I stated when writing in a judicial capacity:

"The rights ensure everybody can develop individually, socially and spiritually in that sphere, which provides the civil foundation for their effective participation in democratic society.  They protect those attributes which are private to all individuals, that domain which may be called their home, the intimate relations which they have in their family and that capacity for communication (by whatever means) with others which is their correspondence, each of which is indispensable for their personal actuation, freedom of expression and social engagement."

Applying these observations to the three-generational family in my example, the restrictions leave each generation alone in the privacy of their home to live as they please, but (for example) they cannot visit each other, with all of the social and developmental consequences that follow.  This interference may be reasonable and justified in the circumstances of the COVID19 pandemic.  However, focussing on the purposes of, and the values and interests protected by, the right allows us to better understand how seriously the restrictions interfere in the private life of this family in human terms.

International law, as accepted by Australia, recognises ‘the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts’.  Because work relationships are so important to personhood, the right to work may also be inherent in the right to be free of unlawful and arbitrary interference with private life (see above).

Again, at one level, the purpose of this right is obvious - to protect the right to undertake chosen work.  This is important.  People choose to work, or must do so solely for money.  But this too is not an adequate understanding of the entire meaning and importance of the right.  The purpose of the right and the values and interests protected go well beyond work as productive activity and economic participation.  Work is intimately connected to human dignity, bound up with our sense of identity and is one of our principal means of engaging socially with others.  As the United Nations committee that oversees implementation of this international right states:

"The right to work is essential for realising other human rights and forms an inseparable and inherent part of human dignity.  Every individual has the right to be able to work, allowing him/her to live in dignity.  The right to work contributes at the same time to the survival of the individual and to that of his/her family, and insofar as work is freely chosen or accepted, to his/her development and recognition within the community."

The individual usually has much more at stake in work than money.  Therefore no-work restrictions interfere with much more than that.  The restrictions may be reasonable and justified, but let us not misunderstand what work means to individuals in human terms in the justification calculus.

Why human rights matter

As in other nations, Australia’s COVID19 response engages fundamental human rights in different ways.  As a matter of state obligation under international law, Australia must unquestionably implement measures to respect, protect and fulfill the rights to life and health in this most pressing context.  Certain domestic legislation reinforces this obligation, both at the Commonwealth level and in two States and the ACT.  As elsewhere, the measures introduced have included restrictions which significantly interfere with other international human rights, also domestically reinforced, such as the right to freedom of movement, to privacy, family and home, and to work.  These rights are not absolute.  Lawful, necessary and proportionate interference may be justified because life and health are at risk, as will be discussed in a subsequent article.  But individuals (and groups) have a strong personal stake in these rights because, in various interconnected ways, they enable everyone to live a dignified life.  When we fully appreciate the meaning and importance of these rights in and of themselves by examining their underlying purpose and the values and interests which they protect, we can better understand the true burden of the restrictions on people in human terms, which properly informs assessment of whether such restrictions are reasonable and justified.