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Embedding human rights during COVID-19

As the COVID-19 pandemic has evolved, we have seen a broad range of impacts on the lives and human rights of Victorians – an increase in racism directed towards people from Asian backgrounds, changes to work arrangements that exacerbate existing inequalities, restrictions on Victorians’ ability to move freely throughout the state, and changes to justice and corrections, including new processes and limitations on access to facilities like prisons.

Emerging issues

For the Victorian Government and other public authorities, navigating these emerging issues while at the same time upholding human rights requires a delicate balance. In a state of emergency, some limitation of human rights may be necessary, but any such limitation must be necessary, justifiable, proportionate and time-bound.

When a state of emergency was declared in Victoria on 16 March, the Victorian Government implemented a range of social-distancing measures that limited the number of people who could socialise together. These directions were given according to powers under the Public Health and Wellbeing Act 2008. The enforcement of these social distancing measures by Victoria Police is an issue that has attracted significant scrutiny throughout the pandemic. To ensure the fairness and rigour of fines being issued, we called for Victoria Police to collect demographic data and for the information to be released to an independent oversight body. In April, the Victorian Government announced that the Public Accounts and Estimates Committee would scrutinise the state’s response to the pandemic.

On 24 April 2020, the Victorian Parliament passed the COVID-19 Omnibus (Emergency Measures) Act 2020, which introduced a wide-ranging package of temporary reforms as part of the state’s response to the COVID-19 pandemic. The reforms included a legislative override provision that would enable emergency regulations to be put in place to override justice-related laws without parliament having to sit. There are also more flexible remand arrangements, judge-only trials and greater use of audio-visual technology in the criminal justice system, new processes to safeguard prisons, and isolation provisions for youth justice facilities.

While many of these emergency measures play an important role in safeguarding public health, it’s vital that the government and public authorities closely monitor and manage any potential human rights impacts.

The full lockdown of nine public housing towers in early July further illustrated the importance of keeping human rights front and centre during a state of emergency. Due to concern about rising COVID-19 cases and the additional risk posed by the close confines of the towers, the government acted quickly to lockdown the towers on a Saturday evening. Around 3000 residents received little notice that they would be unable to leave their apartments – for work, study, healthcare or exercise – for an initial five-day lockdown. The presence of 500 Victoria Police officers on site prompted further conversation about whether the response was proportionate to the risk and how the government could manage the lockdown fairly and flexibly to take particular care of people’s individual circumstances and vulnerabilities. During the lockdown, we produced resources for residents and worked closely with government, public authorities and civil society to monitor compliance with human rights and to ensure residents were aware of their rights. We are also supporting the Victorian Ombudsman with an investigation into the treatment of residents during the public housing lockdown, to provide advice on the operation of the Charter in such situations.

During July, the number of COVID-19 cases in Victoria began to rise rapidly, resulting in the escalation of several health and safety measures. From 22 July, it became mandatory for all people in in metropolitan Melbourne and Mitchell Shire to wear face masks or coverings while in public. There were media reports of people opposing this requirement on the basis of their human rights, so we issued a public statement explaining that it was a lawful directive that did not breach Victorian or international human rights laws.

On 2 August, the Premier of Victoria declared a state of disaster in Victoria. This declaration gave the Minister for Police and Emergency Services broad powers to make sure people are complying with public health directions. It coincided with the announcement of further restrictions on the movement of people and which businesses could remain open, the implementation of a curfew between 8pm and 5am, and the extension of the mask-wearing requirement to the rest of Victoria.

What the law says

In Victoria, the Charter of Human Rights and Responsibilities sets out the basic rights, freedoms and responsibilities of all people in Victoria. During a state of emergency, the Charter continues to apply – in fact, it’s more vital than at any other time.

When making new laws, the Victorian government must report on how the proposed law iscompatible with the rights protected by the Charter – the ‘statement of compatibility’ that accompanies a new law must explain how any restrictions on the human rights protected by the Charter are reasonable and justified.

Public authorities – including all staff who work in state government departments, agencies and local government – also have to properly consider and act compatibly with human rights when carrying out their work. This includes when they deliver services, develop policies and projects, manage risks, make decisions and manage complaints.

The Commission closely monitors the steps taken by the government and other public authorities to meet their responsibilities under the Charter. We know that during the COVID-19 crisis, the government may place limits on human rights and must navigate the delicate balance between protecting our health and safeguarding our vital freedoms and individual needs.

Critically, however, the Charter requires any restrictions on our human rights to be justified, proportionate and necessary. During a state of emergency, restrictions should be time bound. Restrictions must also be underpinned by authoritative medical advice. There must be safeguards for vulnerable people whose rights are impacted and decisions must remain be open to scrutiny.

How we're addressing the issues

During this period, we’re working closely with government and other stakeholders to ensure a continued focus on human rights, particularly where emergency measures may impose limits on individuals’ rights.

How Victoria’s emergency laws engage with human rights
A summary of the human rights related to prisons and criminal justice process that are likely to be impacted by Victoria’s recently passed COVID-19 Omnibus (Emergency Measures) Act 2020.

Scrutiny of new emergency laws essential to monitor any human rights impacts
We have called on the government to establish an independent committee to oversee the response to COVID-19 and implementation of the COVID-19 Omnibus (Emergency Measures) Act 2020.

Six key principles to guide the government’s response to COVID-19
We have developed six key principles for guiding the government’s response to COVID-19 while meeting its Charter obligations.

Upholding human rights in public housing lockdowns
As two public housing locations in inner Melbourne enter lockdown, we highlight the need for government and public authorities to manage the situation fairly, flexibly and with consideration of individual vulnerabilities.

Factsheet: Your rights in full lockdown
To support public housing residents in full lockdown, we produced a factsheet explaining how human rights operate in a state of emergency. It is available in 11 languages.

The requirement to wear a face mask does not breach human rights
The requirement for people in metropolitan Melbourne and Mitchell Shire to wear face masks or coverings in public is a lawful directive that does not violate human rights.

What does a state of disaster mean for human rights?
On 2 August 2020, Victorian Premier Daniel Andrews declared a state of disaster in Victoria under the Emergency Management Act 1986. Here is some information on what a state of disaster means and what impact it may have on Victorians’ human rights.

Opening statement for the Parliamentary Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic
On 26 August 2020, Commissioner Kristen Hilton spoke to the Victorian Parliament’s Public Accounts and Estimates Committee about the human rights impacts from the Victorian Government’s response to COVID-19.

Metropolitan Melbourne curfew – balancing rights and restrictions
Since its introduction on the 2 August 2020, the overnight curfew placed on residents of metropolitan Melbourne has been the subject of considerable community debate and concern.

Explainer: Protests during COVID-19
During the COVID-19 pandemic, public health orders have limited the ability of Victorians to gather together publicly to speak up on issues they care about. Here are the answers to key questions about protests during the pandemic.

Statement: The Omnibus Amendment Bill and human rights
Proposed amendments to the Public Health and Wellbeing Act contained in the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020, currently before the Victorian Parliament, raise some potential risks for Victorians’ human rights.

Centring human rights in the COVID-19 recovery
As we head towards the next stage of the pandemic, we have an opportunity to start thinking about how Victoria can recover in the months ahead, focusing on embedding equality, democratic accountability and community participation as key principles.

Helping public authorities understand their obligations during COVID-19
Our Charter Education Program supports government departments, councils and other public authorities to navigate their Charter obligations and mitigate risk of human rights breaches. We also offer broader education and consultancy services.

How we can help

If you have a question about discrimination, sexual harassment or vilification or would like more information about how Victoria’s Charter protects your human rights during the COVID-19 pandemic, we’re here to help.

Our enquiries team can help you understand Victoria’s anti-discrimination laws and how you can make a complaint if you choose to. And if we can’t answer your question, we’ll try to help you find someone who can.

If you wish to make a complaint in relation to the Charter of Human Rights and Responsibilities, find out more about your options.

Through our education and consultancy services, we can also help public authorities understand their obligations under the Charter.

Further reading

Here are selected news stories, research and reflections, from here and abroad, highlighting key human rights issues in responses to COVID-19.

Women and equality

United Nations – Policy Brief: The Impact of COVID-19 on Women (9 April 2020)
A compact summary of the particular economic, health and social impacts women around the world are facing during COVID-19.

Financy – Financy Women’s Index: Looking at the impact of COVID-10 on women’s financial progress (March 2020)
A quarterly scorecard examining the challenges and opportunities related to women’s financial wellbeing in Australia (free subscription required).

Disability

Australian Human Rights Commission – Bringing a disability lens to the COVID-19 health policy response (May 2020)
Disability Discrimination Commissioner Dr Ben Gauntlett on the profound impacts of isolation measures on people with disabilities.

Disabled People’s Organisations Australia – Statement of Concern – COVID-19: Human rights, disability and ethical decision-making (April 2020)
Key human rights principles that should underpin ethical decision-making in the context of disability and the COVID-19 pandemic.

Human rights

Canada OPCAT Project – COVID-19: Deprivation of Liberty Information Corner (May 2020)
News and research on the implications of COVID-19 for closed environments and those deprived of liberty.

Policing and enforcement

Human Rights Law Centre – Explainer: police powers and COVID-19
An overview of the role of police during the pandemic, including enforcement of public health responses and reducing pressure on the criminal justice system.

Read more about our response to COVID-19

Reducing racism during COVID-19