COVID19 and Human Rights in Australia: Part 2

21 May 2020

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

This is the second article in a four-part series.  The first considered why human rights matter when assessing the response by Australian governments to COVID-19.  The third will discuss COVID-19 as it affects vulnerable groups, focussing upon the need to respect, protect and fulfil the human rights of all persons without discrimination.  The fourth and final article will consider COVID-19 and human rights in the context of government accountability, focussing upon the arrangements in Australia as they are and could be.  In this second article I consider important aspects of the limitation of rights in the context of COVID-19, including the seldom discussed role of the limitation principles in ensuring good state governance.

(2) COVID-19 and limiting human rights: ensuring good governance

We are in the midst of an international public health emergency, improving slowly in places like Australia though it may be.  The human rights to life and health oblige governments to protect people from the COVID-19 pandemic and ensure that quality treatment is available and accessible by all when needed.  The actions taken in Australia and elsewhere include stay-at-home and no-work directions which have imposed unprecedented limitations on the human rights to freedom of movement, work and privacy, to name only three. The scope of these actions, and their nature and duration, raise profound issues about state governance and accountability with which human rights engage through the limitation principles.

As discussed in the first article, individuals have a strong personal stake in the enjoyment of these and other rights because they enable everyone to live a dignified life, not just to exist.  The underlying purpose of the rights, and the values and interests that they reflect and protect, invest the rights with a fundamental importance in and of themselves.  Therefore, even in states of emergency, such rights cannot be limited under international law (domesticated to certain extents in Victoria, Queensland and the ACT, and also the Commonwealth) without strict justification. More than that, when determining whether particular limitations can be so justified, it is a serious error to begin without fully appreciating the precious importance to the individual of the right in its unlimited form.  It is both consistent with human rights law and good governance to respect, protect and fulfil the right in that form wherever possible.  There may be situations where this is not possible: most human rights are not absolute and good governance may require limiting action to be taken despite the intrinsic value and importance of the right.

Limitations of human rights generally

Upholding fundamental democratic values founded upon respect for the universal and equal dignity of the individual, human rights limitation principles recognise, circumscribe and guide the exercise of the exceptional power of governments to limit human rights for important public purposes, generally and in the COVID-19 situation.

An exact answer to the question whether a limitation is justified depends upon the test applying to the particular right in the particular context. Under the International Covenant on Civil and Political Rights, for example, measures derogating from the obligation to respect and ensure certain rights are permissible in the case of officially proclaimed public emergencies, but only (among other things) ‘to the extent strictly required by the exigencies of the situation’ (art 4.1). Under the International Covenant on Economic, Social and Cultural Rights, rights may be limited, but only (among other things) ‘solely for the purpose of promoting the general welfare in a democratic society’ (art 4). Certain rights, such as the right to privacy in the ICCPR (art 17.1), confer protection against ‘arbitrary or unlawful interference’ (emphasis added), which are words of limitation having a well-understood meaning in relation to that right.

Accepting these nuances, it is sufficient for present purposes to note the common elements of the tests that apply when determining whether rights limitations are justifiable.  In general terms, the purpose of limitations tests is to determine whether the limit is ‘demonstrably justified in a free and democratic society based on human dignity, equality and freedom’, to use the language of s 7(2) of the Victorian Charter.  To be justified, the limitation must satisfy certain limitations principles, as follows (see generally the Siracusa Principles):

  • Legality
  • Necessity
  • Legitimate purpose
  • Proportionate
  • Non-discrimination

The legality requirement upholds the rule of law and ensures that, in limiting rights, governments are subject to law and democratically accountable for any change to the law, for it is under law that individuals enjoy their human rights.  The necessity requirement ensures that, absent this basis for limitation, individuals can enjoy fundamental rights and freedoms in their precious unlimited form. The legitimate purpose requirement ensures that the power of governance is not abused when limitations are imposed. The proportionality requirement ensures that limitations go no further than necessary, which is a guard against governance overreach: the limitation must be proportionate to the interests at stake – it must match and not exceed the protective purpose and be the least intrusive option for achieving it.  The non-discrimination requirement ensures that, consistently with basic democratic principles founded upon respect for human dignity, limitations are not discriminatory.

A purpose of the limitations principles is to influence the exercise by governments of the limitation power so as to ensure that human rights are respected, protected and fulfilled as far as possible in the situation. Application of the principles in the deliberative processes of good governance should lead to the result that, when limitations are necessary for legitimate purposes, they are minimally intrusive, time-bound, targeted, proportionate, certain, non-discriminatory and transparent.

Limitation of human rights in the COVID-19 situation

Governments in most countries, including Australia, have introduced mandatory COVID-19 prevention and control measures having population-wide impact.  Despite the huge scale of the impact, the same limitations principles apply.

The United Nations Office of the High Commissioner for Human Rights has issued COVID-19 Guidance (see ‘Emergency measures’) for introducing such measures consistently with human rights:

  • Governments have to take difficult decisions in response to COVID-19.  International law allows emergency measures in response to significant threats – but measures that restrict human rights should be proportionate to the evaluated risk, necessary and applied in a non-discriminatory way.  This means having a specific focus and duration, and taking the least intrusive approach possible to protect public health.
  • With regard to COVID-19, emergency powers must only be used for legitimate public health goals, not used as a basis to quash dissent, silence the work of human rights defenders or journalists, deny other human rights or take any other steps that are not strictly necessary to address the health situation.
  • Governments should inform the affected population of what the emergency measures are, where they apply and for how long they are intended to remain in effect, and should update this information regularly and make it widely available.
  • As soon as feasible, it will be important for Governments to ensure a return to life as normal and not use emergency powers to indefinitely regulate day-to-day life, recognising that the response must match the needs of different phases of the crisis.

It can be seen that this guidance is directed at assisting governments to exercise their function of good governance in the COVID-19 emergency in a way that gives maximum effect to human rights, for at such times human rights are most at risk of being undermined.  The guidance reflects the well-understood general principles of limitation of human rights that I have discussed, as applied in this kind of situation.  Consistently with those principles, the guidance accepts that governments have ‘to take difficult decisions in response to COVID-19’; and emphasises the importance of avoiding overreach: ‘measures that restrict human rights should be proportionate’.

I will now examine legal proceedings in the United Kingdom and Germany that illustrate the application of these principles in two different COVID-19 contexts: lockdown measures generally, and measures impacting upon freedom of assembly particularly.

Challenging COVID-19 lockdown laws generally

The Secretary-General of the United Nations has written:

"The world is facing an unprecedented crisis.  At its core is a global public health emergency on a scale not seen for a century, requiring a global response with far-reaching consequences for our economic, social and political lives.  The priority is to save lives.

In view of the exceptional situation and to preserve life, countries have no choice but to adopt extraordinary measures.  Extensive lockdowns, adopted to slow transmission of the virus, restrict by necessity freedom of movement and, in the process, freedom to enjoy many other human rights [page 2]."

While most countries, including Australia, have adopted such extraordinary measures, not everyone agrees with the Secretary-General that this was unavoidable.

In the United Kingdom, a letter before action has been sent on behalf of an aviation company to the Health Secretary challenging the legality of various COVID-19 lockdown measures.  The letter threatens judicial review unless the government changes those measures.   At the heart of the company’s contention is that the laws are not consistent with the Human Rights Act 1998 (UK) (which domesticates the European Convention on Human Rights and Fundamental Freedoms) because they disproportionately limit human rights.  It is contended that the Government failed to take account of (footnote omitted):

"(a) the uncertainty of scientific evidence about the effectiveness of the restrictions; (b) the effect of the restrictions on public health, including deaths, particularly from untreated or undiscovered cancer and heart disease, mental health and the incidence of domestic violence; (c) the economic effect of the restrictions relative to the economic effect of alternative less restrictive means of limiting its spread; (d) the medium and long-term consequence of the measures; and (e) whether, in the light of those considerations, whether less restrictive measures than those adopted would have been a more proportionate means of obtaining the objective of restricting the spread of the coronavirus without causing disproportionate harms."

In various ways, the letter contends that the scientific evidence relied upon by the Government could not support a conclusion that the least intrusive response to the COVID-19 crisis was to pass the lockdown laws.

There are excellent blogs on this development.  Francis Hoar argues for illegality on Convention grounds.  Leo Davidson and Dominic Ruck Keane and Henry Tufnell argue for legality on those grounds.  The discussion is fascinating, thorough and recommended.

This challenge will require close consideration of normative concepts that have developed under the limitations principles to protect the capacity of governments to discharge their central function of governance, especially in relation to decisions on matters of policy that depend upon deliberative consideration of scientific and like evidence and advice.  The concepts are expressed in different ways in different systems: my short summary would be ‘margin of appreciation’ under the Convention, ‘subsidiarity’ under the ICCPR and ‘weight and latitude’ under the Victorian Charter.  But the common idea of institutional respect for the governmental function is captured in this statement by the European Court of Human Rights in Stec v United Kingdom [2006] 43 EHRR 47 [52]:

'The scope of this margin [of appreciation] will vary according to the circumstances, the subject-matter and the background … [A] wide margin is usually allowed to the State under the Convention when it comes to general measures of economic and social strategy...  Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’.

In Coventry and others (Respondents) v Lawrence and another (Appellants) [2015] UKSC 50 [58], Lord Neuberger and Lord Dyson (with whom Lord Sumption and Lord Carnwath agreed) stated that this principle required the court to:

'...give considerable weight to informed legislative choices, at least where state authorities are seeking to reconcile the competing interests of different groups of society.  In such cases, they are bound to have to draw the line somewhere in order to mark where a particular interest prevails and another one yields.'

These normative concepts have direct application to limitation analysis of state COVID-19 responses, such as those adopted in Australia.  After deliberative consideration of scientific and like evidence and advice, a government may give effect to its obligation to protect life and health by enacting lockdown measures.  Any challenge to the measures on proportionality grounds will bring into play the principle that the basic function of government is governance.  Where the measures are taken for a legitimate purpose, evidence-based, minimally intrusive, time-bound, targeted, proportionate, certain, non-discriminatory and transparent, the courts will not hold them to be unjustified simply because another less intrusive option may on one view be open.  That is especially so where the measures are the product of the very kind of informed deliberative process that the limitations principles encourage.

Challenging COVID-19 lockdown laws: freedom of assembly

On the other hand, judicial respect for the governance function does not render COVID-19 lockdown laws immune from challenge on proportionality grounds.  This is illustrated by the recently reported decision of the German Constitutional Court that COVID-19 protest bans ordered by lower courts were unacceptable on human rights grounds.  It ordered the local authorities to reconsider the bans, which they did.

The protesters had wished to assemble under the banner ‘strengthen health, don’t weaken rights – protect against the virus, not people’.  The lower courts had held that such protests violated the general prohibition against public meetings of more than two people not from the same household which were introduced as part of the COVID–19 response.  The Constitutional Court held that the lower courts had some leeway (which they failed to exercise) to permit protests which acceptably balanced health restrictions against the right to freedom of assembly.

The authorities allowed a protest attended by fifteen participants, all wearing masks, who kept 1.5 metres away from each other and gave speeches by dictation into smartphones.  There has been at least one similar case, with the same result.

The Constitutional Court has also held that a blanket ban on all religious gatherings no matter their size and the precautions taken was an unjustified limitation on freedom of religion.

In other cases, the Court has refused interim relief against lockdown laws generally as they were directed at saving lives and preventing the collapse of the health care system.

On the report of these decisions, the German Constitutional Court has respected governmental decisions about management of the COVID-19 response generally, while ruling against some blanket bans on proportionality grounds where the activity could take place on conditions which acceptably minimised risk to life or health.

Conclusion: limiting human rights while ensuring good governance

The function of government is good governance.  In the context of COVID-19, good governance has involved taking unprecedented action to protect the life and health of the community, especially its most vulnerable.  It has involved limiting the enjoyment of other human rights which are important in and of themselves.  But it has also involved complying with the limitations principles.  A purpose of these principles is to influence the exercise by governments of the limitation power so as to ensure that human rights are respected, protected and fulfilled as far as possible in the situation. Based on fundamental democratic values that respect the universal and equal dignity of all persons, they support the imposition of only such limitations on those rights as are strictly justified. The principles encourage governmental deliberative processes which take proper account of human rights at the policy-making stage before limiting measures are introduced.

Under international human rights law, and in certain respects under Australian law as well, governments are accountable for the limitations measures they introduce (as I will more fully discuss in the fourth article in the series).  But a predicate of the limitations principles is that the function of government is good governance for which governments are entitled to governance space.  Judicial respect is therefore afforded to human rights limiting measures that result from deliberative processes that are objective, evidence-based and informed. Such processes are more likely to lead to limitations that are necessary for legitimate purposes, minimally intrusive, time-bound, targeted, proportionate, certain, non-discriminatory and transparent.  Blanket bans produced on the run that scoop up activity which acceptably balances enjoyment of fundamental human rights against a minimised risk to life and health stand in a different category.