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We must ensure human rights don’t become collateral damage of COVID-19

In dealing with the pandemic crisis, it’s important that extreme measures don’t equate to us throwing out the baby with the bathwater, writes Queensland Human Rights Commissioner Scott McDougall.

Apr 03, 2020, updated Apr 03, 2020

This week’s footage of the acute discomfort experienced by returned travellers forced into mandatory quarantine has prompted me to question whether many Australians appreciate that the boredom, anger and frustration they are presently experiencing as a result of the government’s social restrictions, is the manifestation of the suppression of their human rights.

Most of us need only look to the tragedy unfolding in parts of Europe, the USA and other susceptible countries to accept that the actions taken by the government, based on expert medical advice, are justified and necessary to protect public safety.  In fact, to meet its positive obligations to protect the right to life, the Government is duty bound to take such decisive restrictive measures to ‘flatten the curve’ of potentially lethal infections.

But for how long can the restrictions be justified as proportionate to the threat?  What happens when we get to the other side of the curve?  And what about all the other human rights affected by the response to the virus, particularly of those vulnerable groups such as people with disability?

The sheer size and scale of the human rights implications of COVID-19 is enormous.  Almost all of the rights now protected in law by Queensland, ACT and Victorian Governments (but not yet by the Commonwealth) will be engaged in one way or another. Here is but a sampling:

If we do get to a point that Italian doctors reportedly have arrived at, of having to make choices as to which individuals receive access to life saving ventilators, how do we ensure that unconscious bias does not affect the choice of who survives? How will the influx of COVID-19 cases that we’re now preparing for, impact on the rights of non-COVID-19 patients to access health services? And what about the rights of our dedicated health professionals themselves given their expected high and continuous levels of exposure to the virus in the course of their day to day work?

Prisons and youth detention centres, as closed environments, represent as great a risk of COVID-19 spread as do cruise ships.  In fact the risks are amplified, by virtue of the fact that, unlike cruise ships, they cannot be kept at sea, staff return each day to their families, and asymptomatic prisoners come and go with the churn of the justice system.  In recognition of the potential calamity posed by COVID-19 outbreaks, the NSW parliament introduced laws last week to allow for the Corrective Services Commissioner to release low risk prisoners. No such plan has yet been floated here in Queensland, and yet our overcrowded youth detention centres and double bunked adult prisons are already in lockdown to prevent the spread of the virus, with more prisoners continuing to arrive and no real possibility of isolating large numbers of cases should prisoners begin to test positive.

In response to calls from Indigenous organisations to protect Aboriginal and Torres Strait Islander communities, the Biosecurity Act has been invoked to shut off access to discrete Indigenous communities.  This measure recognises the threat posed to communities that were ravaged by last century’s Spanish flu.  What about the rights of the majority of Indigenous people who reside outside of those communities in rural regional and urban areas?  What happens when their family members return from prison to often overcrowded houses? The ability to socially isolate and comply with the new rules about gatherings is, to a certain extent, a privilege, given that people need the physical space to allow them to do so.

It is the role of human rights commissions to monitor the impacts of restrictions on human rights and to continually assess the justification of any limitations.  My hope is that one enduring legacy of the pandemic is a renewed appreciation by Australians of the value of our rights and freedoms and of the need to critically assess limitations imposed upon them.

After 9-11, the Australian population too readily ceded rights in fear of the threat of terrorism.  The threat was no doubt real, but the testing of the proportionality of the limits imposed on freedoms – for example by giving up rights to privacy and ownership of metadata – was inadequate, and was hampered by the classified status of secret intelligence.

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There should be no such impediments to assessing the proportionality of COVID-19 restrictions.  Governments should candidly engage with citizens about proportionality and whether there are less restrictive alternatives to achieving the purpose of public safety.  This proportionality analysis is the hallmark of democratic societies that value human rights.  A government that takes its people into its confidence to hold such conversations builds trust.  That trust leads to citizens accepting draconian incursions into liberties of the sort we are currently experiencing.

As citizens our role is to recognise the greater good in accepting personal loss of liberty, but we must also strongly assert our freedoms and participate in the scrutiny of justifications.  As a virus that in time will become more familiar to us, we will have the ability to engage with evidence to assess the ongoing threat posed by COVID-19 and balance the competing interests of individual rights versus collective rights of public health.

Our future challenge will then be to ensure we are as vigilant in protecting rights that are not as publicly visible as the freedom to frolic on Bondi Beach.

Scott McDougall is a lawyer who joined the Anti-Discrimination Commission Queensland in 2018 and now oversees the operation of the state’s Human Rights Act.

 

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