Statement on the metropolitan Melbourne curfew – balancing rights and restrictions

17 September 2020

The imposition of the curfew is a lawful directive made under the emergency powers by clause 5(1AF) of Stay at Home Directions (Restricted Areas) (No. 14).

Its operation is not without human rights implications. In particular, the curfew has limited the right to freedom of movement under Section 12 of Victoria’s Charter of Human Rights and Responsibilities, and the Commission has received a number of enquiries from community members concerned about this limitation on their rights.

The Charter plays a critical role in upholding Victorians’ human rights, but the rights contained within it are not absolute. This means that in certain circumstances rights may be restricted. However, the Charter also requires any restrictions on human rights to be justified, proportionate, necessary and timebound, and public authorities are required to seek the least restrictive option possible. In the context of COVID-19 and the real risk that the virus poses, this is a difficult balancing act.

From the start of this pandemic, the Commission has advocated for these principles to guide all decisions made by the Victorian Government and public authorities. Following announcement of the curfew, the Commission has sought information from the government regarding the reasons for the curfew, as well as conveying to government the considerable level of community concern and confusion that exists.

As the rate of community transmission of COVID-19 declines, the Commission anticipates that the argument that the curfew is reasonable, necessary, and proportionate will become harder to make. We have urged the government to consider whether less restrictive or more targeted options may be available as case numbers decline. The human rights enjoyed by Victorians should not be limited more than is necessary to protect us from the risks posed by the COVID-19 pandemic.