The actions the ACT has taken in response to COVID-19 to date appear to have achieved a reasonable balance in limiting human rights only insofar as necessary to protect public health. However, it is essential that all precautionary responses are carefully monitored as the situation evolves and public health advice is updated. Human rights obligations require that restrictions be eased as soon as they are no longer necessary or proportionate. Adverse and unjustifiable impacts on human rights must therefore be identified and corrected at the earliest opportunity.
Emergency legislation must of course be prompt and responsive, but also independently monitored. On 2 April and 7 May 2020, the ACT Legislative Assembly passed the COVID Emergency Response Bill 2020 and the COVID-19 Emergency Response Legislation Amendment Bill 2020 respectively; each on the same day they were introduced. These bills enable ministers and some officials to make regulations or legislative instruments that modify how certain ACT laws operate during the emergency period. The changes also allow modifications to emergency timeframes under legislation and proceedings before courts and tribunals.
A human rights-based approach to such rapid law-making during a public emergency must involve greater accountability and responsive scrutiny mechanisms. Considered oversight plays a vital role in ensuring that any preventative measures are targeted to their purpose, feature adequate safeguards, mitigate against unforeseen consequences and, in turn, are deserving of the public’s confidence. Human rights scrutiny is especially essential where statutory instruments, like the public health directions, determine obligations that may be punishable, for example by attracting fines or potential imprisonment for non-compliance.
In addition to responsive scrutiny and oversight, adopting a human rights-based approach recognises that there are people in the community who experience vulnerabilities and who may require additional support, services and assistance to ensure their needs are adequately met throughout this time. This includes people with a disability or mental health concerns, older people, people residing in closed environments, people experiencing domestic and family violence, people from an Aboriginal and Torres Strait Islander or culturally diverse background, and children and young people.
The Commission recently made a submission to the ACT Legislative Assembly’s Select Committee into the Government’s response to the COVID-19 pandemic, focusing on the continuing need for oversight and human rights-based scrutiny during the COVID-19 emergency. We are continuing to monitor the issues experienced by our clients to ascertain any other emerging rights issues or trends that warrant further analysis and oversight.