The information on this page is an overview of some of the human rights impacts of the current lockdown. It is not intended to be an exhaustive list, nor to provide information about all current restrictions.
The information on this page is current as at 17 September 2021.
General information about COVID-19, including current restrictions, should be sought from the official ACT Government website which is regularly updated with reliable information and advice: ACT Health COVID-19 information and advice in the ACT.
Human rights protections continue to apply during a pandemic. Here in the ACT, the Human Rights Act 2004 and the ACT Discrimination Act 1991 provide a framework for how you should be treated in an emergency. Under the Human Rights Act, rights can only be limited in a way that is reasonable and justifiable, and public authorities must consider and act compatibly with human rights when making decisions. The Discrimination Act prohibits discrimination in certain areas of life, including employment and provision of goods and services, based on protected attributes such as disability, age, or family or carer responsibilities.
As part of the current lockdown measures, the ACT’s Chief Health Officer (CHO) has issued a number of public health directions aimed at limiting and controlling the spread of COVID‑19. Many of these measures necessarily involve restrictions on the human rights of Canberrans. Lockdown measures that engage human rights include quarantine requirements for people who have been diagnosed with COVID-19; restrictions on leaving your home other than for essential reasons; controls on visiting residential aged care facilities; closure of non-essential businesses; and limitations on the number of people at indoor and outdoor gatherings, including at residential premises. Failing to obey these directions without reasonable excuse can be penalised by fines of up to $8000 for individuals or an infringement notice penalty of $1000 (or $200 for non-compliance with a face mask direction). As such, public health directions have given police and other authorised officials significant discretion in their implementation and in deciding whether an excuse for non-compliance is reasonable.
The Commission is monitoring the restrictions imposed as part of the current COVID-19 lockdown. Restrictions on rights should only stay in place for as long as they are necessary, and they should not limit rights more severely than they need to.
You can also make a complaint to the Commission if you think you have been treated unfavourably because of an attribute protected under the Discrimination Act.
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Under public health directions currently in force in the ACT, it is mandatory to wear a face mask upon leaving your home. However, these requirements include exceptions to ensure people who have a valid reason why they are unable to wear a mask are not treated less favourably. ACT Health’s COVID-19 information lists these exceptions, which include people with a physical or mental health illness or disability that makes wearing a face mask detrimental to their condition, children under 12, and others.
Generally speaking, public health directions that mandate the wearing of masks in particular places or circumstances will not constitute an unreasonable limitation on the rights of individuals. However, requiring someone to wear a mask when a lawful exception applies might be discrimination. Essential retailers and service providers continuing to operate during the lockdown should not refuse service to patrons who may have a lawful reason for not wearing a mask. Refusing service, as a rule, to anyone unless they wear a face mask is unlikely to be consistent with ACT discrimination law. It is also unlikely under discrimination law that retailers may require customers to provide proof of their disability or condition that makes it unsuitable for them to wear a mask.
Visitor restrictions are currently in place for residential aged care facilities in the ACT, except for end of life or other compassionate reasons, as approved by the individual facility. (It should be noted that these additional restrictions apply only to residential aged care facilities and do not apply to retirement villages or homes, which are instead to be treated in the same way as any other residential premises during the lockdown.)
Given the specific vulnerabilities of residents in aged care facilities, it is understandable that additional restrictions may be required to manage the risks posed by the outbreak of COVID-19 in the community. Under the current public health directions, individual operators of aged care facilities are granted a high level of discretion to determine visitor access. Guidance for providers should be developed by government to enable safe visiting in aged care settings for residents and their loved ones, in a manner proportionate to the risk of transmission. If individual aged care facilities adopt different approaches, this could result in arbitrary decisions regarding appropriate visitor access.
Visiting restrictions are particularly challenging for people with dementia and other disabilities, as well as for their families. Therefore, maintaining COVID-safe opportunities for visiting is critical to support residents’ health and well-being and ensure meaningful relationships with families. While some interference with the right to family life is undoubtedly justified, this must be proportionate and only made on the basis of an individualised risk assessment. Such risk assessment must take into account the risks to the person’s emotional wellbeing and mental health of not having visits. Banning visits entirely is likely to be contrary to the rights of both residents and their families. Such an approach would also likely to be inconsistent with ACT discrimination law. The Commission recognises that this is a complex issue, and aged care facilities are grappling with their legal obligation to protect residents as well as staff, alongside their obligations under discrimination law. However, applying a blanket rule against visits is likely to be unlawful.
Aged care facilities should ensure that their visitor policies align with current Industry Code for Visiting Residential Aged Care Homes during COVID-19, which recognises the concept of “essential care visitors”. The Code was revised in August 2021 to take account of the more virulent Delta outbreak, while recognising the importance of family members being able to visit residents, particularly where they are providing essential care and support. Visiting policies should ensure that individual risk assessments are undertaken to assess the rights and needs of individual residents, and that procedures are in place so that such assessments can be queried where they have omitted relevant factors or not made adequate efforts to consider how COVID-safe visits might best be facilitated.
On 28 June 2021, National Cabinet agreed that COVID-19 vaccinations would be made mandatory for residential aged care workers, with all workers in aged care required to receive their first dose of the vaccine by 17 September 2021. The ACT’s Chief Health Officer has issued a public health direction to implement this decision.
For all other employment sectors, however, vaccination remains voluntary at the present time.
If there is no specific law or public health direction requiring that a person be vaccinated, employers should be cautious about imposing mandatory COVID-19 vaccination policies or conditions on staff. Advice from Safe Work Australia currently states that it is unlikely that work, health and safety laws require employers to ensure their workers are vaccinated. In those circumstances, employers would need to justify how making vaccinations a condition of employment is reasonable under human rights, discrimination and employment law.
The justification for mandatory vaccinations in the workplace will vary depending on the sector and associated COVID-19 risks, and the kinds of activities and work being conducted in specific contexts. The need for vaccination should therefore be assessed on a case-by-case basis, taking into account the nature of the workplace and the individual circumstances of each employee. Employers should consider whether there are measures other than vaccination that would effectively stop the spread of COVID-19 in the workplace. Employers should also consider whether all their employees have access to a vaccine, otherwise making it a mandatory condition of employment would be unfair.
If an employer makes vaccinations a mandatory condition of employment, this could amount to discrimination if exceptions are not made for employees who cannot be vaccinated due to a disability or other attribute protected under the ACT’s discrimination laws. If your employer is treating you unfavourably because you have not been vaccinated, you may be able to make a complaint to the Commission.
The ACT has not introduced any laws or issued any public health directions requiring proof of being vaccinated against COVID-19 as a condition of entry or as a condition for the delivery or provision of goods, services or facilities. Current advice from Safe Work Australia states that it is unlikely that work, health and safety laws require providers of goods and services to ask customers for proof of vaccination. Businesses and service providers should therefore be cautious about implementing any policy that requires proof of vaccination as a condition of entry or service.
For consistency with human rights law, any such policies must be reasonable, necessary and proportionate, and take account of the potential for discrimination of marginalised and vulnerable groups, including people with disabilities. Businesses and service providers must ensure that customers and clients who are unable to be vaccinated are treated equitably and do not face discrimination. This includes allowing for other ways of demonstrating health status (for example, proof of a negative COVID-19 test) or protecting public health (for example, the use of PPEs and social distancing).
A blanket rule or condition that requires vaccination as a condition of entry or service is unlikely to be consistent with ACT discrimination law. If a provider of goods and services has refused you service because you have not been vaccinated you may be able to make a complaint to the Commission.
From March 2021, public health directions have required people to check in through the Check In CBR app whenever they attend retail venues in the ACT. The use of the Check In CBR app is particularly critical during the current lockdown. Checking in to these venues assists ACT Health to act swiftly to identify close and causal contacts of confirmed COVID-19 cases, and prevent further spread and related risks to life and public health.
Recording and storing information about a person’s movements may limit their privacy but will be permissible insofar as it is necessary, reasonable and proportionate to protecting the ACT community. To safeguard individual privacy, check in data gathered through the app is stored securely with ACT Health and only accessed for contact tracing in the event of an outbreak. It is then deleted after 28 days, unless needed for investigation or prosecution.
New laws have been passed by the ACT Legislative Assembly to ensure these safeguards operate as a matter of law, rather than practice. These protections ensure the ACT community can have confidence that the personal information they provide to ACT Health through the Check In CBR app is only used for contact tracing and related purposes, and not for other purposes (for example, police criminal investigations unrelated to COVID measures).
At the start of the lockdown, many Canberrans experienced long waiting times at the ACT’s COVID-19 testing clinics, with some queuing for many hours. Under the Human Rights Act and the ACT’s discrimination laws, the government has obligations to ensure that testing sites make reasonable adjustments for people with a disability, for example, by permitting them to be tested ahead of others or outreach such as making available in-home testing for those with disabilities or chronic illness. Testing sites should be equipped with disability accessible toilets and ensure that people with a disability are offered assistance where necessary.
The Commission welcomes recent steps taken by ACT Health to allocate specific days for prioritising testing for people with a disability or reduced mobility who require support to access testing. These types of measures will help to ensure safe, efficient and equitable access to COVID-19 testing.
Any protest activity must comply with the public health directions currently in place in the ACT, which limit the reasons people can leave their home and prohibit mass gatherings and events.
People’s ability to gather peacefully and speak out on matters that they care about is a fundamental aspect of democracy, which is protected under the ACT’s human rights laws. The rights to peaceful assembly, freedom of association and freedom of speech are critically important; however, they are not absolute. These rights may be limited if the limitations are reasonable, necessary and proportionate.
While public gatherings in the ACT are currently not permitted, there are other ways in which people can protest and express their views, which do not violate the public health orders and respect the human rights of other Canberrans. These include signing a petition, contacting your local Member of the ACT Legislative Assembly and gathering online to discuss your concerns.
UPDATE 17 September 2021: ACT Policing has advised the Commission that police station front offices will reopen again from today. The Commission thanks ACT Policing for addressing these concerns so promptly.
ACT Policing has introduced a number of changes to police activities during the lockdown, including asking people to only attend their local station for urgent matters or to report for bail.
While the Commission understands that all police stations have a sign on the door saying that people can call 000, or the 131 line, or use the intercom, we are concerned that more vulnerable members of the Canberra community, particularly those with a disability, or those who would struggle to read and/or comprehend these written instructions, will be unable to navigate these options. The Commission is aware that a number of people have tried attending their local station to seek help (including in relation to reporting violence and/or parole and family violence order breaches) but have left without receiving assistance.
Under the current public health directions, police services and policing duties are classified as essential services that will remain open during the lockdown. While ACT Policing have obligations to take reasonable steps to protect the health and safety of staff and others in the workplace, care must be taken to ensure that these sorts of precautionary steps do not result in unreasonable barriers that may prevent people from being able to access police stations. Such measures must be strictly necessary and guard against disproportionately impacting on marginalised and vulnerable groups, including people with disabilities. Here in the ACT, police also have express obligations under the Charter of Victims Rights to recognise the particular needs and rights of victims of crime when dealing with them.
If you have experienced difficulties in accessing your local police station, you may be able to make a complaint to the Commission.
This resource has been adapted from materials prepared by the Victorian Equal Opportunity and Human Rights Commission, the Queensland Human Rights Commission, and the Australian Human Rights Commission.