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COVID-19 and human rights. Here’s how we’re responding to the emerging issues: Read more

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Opening statement for the Parliamentary Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic

On 26 August 2020, Commissioner Kristen Hilton, Executive Director Catherine Dixon and Head of Legal and Dispute Resolution Emily Howie spoke to the Victorian Parliament’s Public Accounts and Estimates Committee for the Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic. Here is the Commissioner’s opening statement to the committee.

In a time of disaster and emergency, human rights must be central to government decision-making.

During this health pandemic, the government has made critical decisions to protect people’s health, lives, safety and livelihood. In doing so, the government has exercised a range of extraordinary powers, and they have had far-ranging limitations on other individual rights, such as our freedom of movement, freedom of association – where and when we can move around, who we can see, how we work and educate – and these decisions have had significant economic and social impacts.

These are extraordinary circumstances. The expansion of state powers and the limitations on rights carries particular responsibilities for government decision-makers – to ensure restrictions on rights are necessary, proportionate and time-bound; to ensure additional safeguards are in place for transparency and accountability; and to ensure support is provided for those most affected.

Principles to guide the government’s response to the pandemic

At the start of this pandemic, the Commission identified and promoted six human rights principles to guide government decision-making and to ensure the government meets its obligations under our human rights laws – the Charter of Human Rights and Responsibilities, the Equal Opportunity Act and the Racial and Religious Tolerance Act.

These principles have provided a foundation for how the Commission has monitored the protection of human rights during this period.

  • Necessary and proportionate: Government decision-makers must have evidence to justify any action that limits a person’s human rights. The wearing of masks is a good example of this – it is an imposition, but it is one for which we have been given clear evidence that wearing masks will reduce community transmission. Importantly, there are also exceptions for mask wearing, which shows a proportionate response.
  • Time-bound: Measures that restrict human rights must also be time-bound and only remain in place for as long as they are necessary. They should be regularly reviewed. Again, the Public Health and Wellbeing Act has this protection built in, in that a state of emergency expires after six months and must be reviewed or reported on every four weeks.
  • Lawful: Any restriction on human rights must also be lawful. During this period, human rights under the Charter have not been suspended by the Victorian Parliament. This means all rights in the Charter continue to apply to decisions and actions of all public authorities.
  • Transparent: Decisions must also be transparent – this means government should provide accessible, timely and comprehensive information about measures that limit human rights in a way that the public can understand and that draws on the public health evidence. In various stages, we have seen that it was very difficult for some people – particularly those from linguistically diverse backgrounds – to get the information they needed, and that has had consequences for compliance.
  • Scrutinised: Supervision and scrutiny of the government’s response to COVID-19, including legislative measures and the exercise of new powers, is key to upholding democracy and the rule of law during this public health crisis. In this regard, the Public Accounts and Estimates Committee, the inquiry into the hotel quarantine scheme and the Victorian Ombudsman’s investigation into the public housing lockdown are all critical.
  • Building in additional safeguards and supports: Wherever possible, preventative safeguards must be built into any action that limits people’s rights. We have seen that, without additional safeguards and supports, the consequences of rights limitations can have extremely serious impacts. We saw this, for example, during the first Stage 3 lockdown in Victoria, where we received a number of complaints from families with children with a disability who could simply not learn from home and there was considerable confusion about whether they were able to send their children to school. We have also seen this in the context of compromised access to NDIS services and the extreme vulnerability to this virus of older people in aged care.

Monitoring the protection of human rights during this period

While the virus may not discriminate, its impacts are felt more harshly by those who already experience discrimination and disadvantage, those who are living in environments where it is close to impossible to socially isolate, and those who are dependent on care.

High-risk environments

We’ve been looking closely at the heightened risk in environments such as public housing, aged care, disability care homes, juvenile justice centres and prisons.

The Commission was concerned about the challenging circumstances for residents during the lockdown of the public housing towers in Flemington and North Melbourne. We heard from residents that access to fresh air, adequate and appropriate food, exercise and medical care were major concerns as well as the significant presence of the police at their homes. Residents also told us how important it was to be able to access accurate information about the lockdown and their rights – in a language and format they could understand.

We have also been closely monitoring the circumstances of mandatory quarantine and isolation measures in prisons. We understand the robust measures needed to ensure COVID19 does not spread through the system but also have concerns about the impact of lockdowns over very vulnerable prisoners.

Fear and uncertainty leading to racial vilification and abuse

The fear and anxiety that the virus has elicited has manifested in an increase in the number of acts of vilification and discrimination towards people because of their race, appearance or background.

During the pandemic, we have seen an increase in racism-related reports, enquiries and complaints. Reports to our online Community Reporting Tool have more than doubled since early March 2020, with the majority of reports relating to racial vilification. From March to July this year, we received 104 complaints, compared to 33 for same period last year.

Many of these enquiries and complaints have come from individuals of Chinese or East-Asian background who have been particularly targeted. People are reporting being abused in public, while online, and while trying to get to work. We heard from a doctor at one of Melbourne’s busiest hospitals who was abused so aggressively while getting the train to work that he no longer feels safe taking public transport.

We heard about a neighbour abusing a complainant and his family due to their race. The neighbours cover their faces and deliberately cough at them when passing and laugh, stating ‘Get the f— out of my way, you Asian dogs, or else I’ll smash ya’.

Another report came from someone at a grocery store who was shopping when another customer walked down the aisle and pointed at her saying, ‘You – it’s all your fault. All you f—cking Asians need to go back to where you came from. Every shelf is empty, and it’s all you f—cking Asians fault”.

These reports and numbers only reflect those who are aware of the Commission’s functions and who are willing and able to engage.

Structural inequality at work

COVID-19 has also exposed existing structural inequalities in the workplace, including in relation to employment entitlements, pay systems and how labour is valued.

We have seen the effects of this particularly for women. Women have been over-represented in frontline, essential work during the pandemic and are therefore at greater risk of exposure to COVID-19.

More women than men have lost their jobs or had their working hours drastically reduced because of COVID-19, with significant consequences for their pay and economic security.

The Commission’s recent survey of over 1500 Victorians confirmed that the impact of COVID-19 on pay has been more significant for women. While more men than women reported a pay reduction during the pandemic (29 per cent of women compared to 22 per cent of men), the women who did lost much more, having their pay cut by 46 per cent on average, compared to 30 per cent for men. For those not working full-time, the cuts rise to an average of 39 per cent among part-timers and 65 per cent for casual employees.

Women are shouldering a disproportionate burden of increased unpaid caring responsibilities due to, among other things, the closure of schools and childcare, ill-health or the inability to afford care following the loss of paid work.

The Commission’s survey showed that women in the workforce have continued to take on the lion’s share of caring responsibilities, regardless of whether they were employed full-time or part-time or had a partner who was working from home during the pandemic. For many women, this has led to increased stress, mental health concerns, and feeling overwhelmed and exhausted.

Women are also at heightened risk of family violence during the pandemic.

The pandemic has both magnified and exacerbated deep, pre-existing, structural gendered inequalities. And the impacts for women will be long-lasting, including in the form of long-term disadvantage and economic insecurity.

Building back better

In turning towards recovery, there is an opportunity to rebuild our community in a way that is more sustainable, resilient and inclusive. This is what the United Nations has tagged as the opportunity to ‘build back better’.

If human rights are placed at the centre of our recovery efforts, then those groups who have been disproportionately impacted by the virus and the efforts to control it will need to be integral to the recovery plan and better supported.

Using gender as an example, we as a community should be reflecting on the different priorities and opportunities that the pandemic has highlighted, including the benefits of free, accessible and properly funded childcare; the need for greater investment in female-dominated sectors; the measures we can take to address the gender pay gap; and what we have learned about supporting flexible work and working from home.

Our recovery should also be shaped by a commitment to democratic accountability. In the Commission’s view, this includes, firstly, strengthening safeguards to address inequality and discrimination; and secondly, ensuring integrity bodies are well supported to play their accountability functions.

Using racism as an example, we have highlighted that fears and uncertainties during COVID-19 have manifested in increased racial vilification for some members of our community. But we should also be thinking about how we can improve our existing anti-vilification laws to better address this problem, including reforming the Racial and Religious Tolerance Act.

Finally, I want to mention participation: it is fundamental that people be able to participate in decisions that affect their human rights. This includes having access to information in a form and a language that they can understand. When we were supporting residents during the public housing lockdown, one of the most important observations was the need for community-led solutions and genuine community engagement and participation. This must be a critical part of our approach to the recovery of this pandemic.

Related resources

6 key principles to guide the Victorian Government’s response to COVID-19

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