![]() Legislative instruments that are subject to disallowance must also have a statement of compatibility with human rights when they are made, which sets out reasons for why any restriction on human rights is appropriate. Typically, Parliament can vote to overturn (or ‘disallow’) a legislative instrument. They can be made and come into force quickly. These are laws which ministers or agencies are authorised to make by existing legislation, rather than new Acts of Parliament. As a result, many of the emergency measures have been put in place using delegated legislative instruments. The Commission is concerned at the lack of transparency in explaining the continued justification for some emergency measures, and even for identifying which level of government is responsible for some measures.ĭuring COVID-19, many emergency measures have had to be put in place in an extremely short time period. It must also be communicated in ways that do not disadvantage vulnerable groups, in particular, CALD community members and people with disability. There needs to be robust and independent scrutiny of the measures and oversight of the impacts of the legislation throughout the period it is in operation.Īll information about the emergency measures – including the detailed justification for them – must be effectively communicated to the public. It is not enough to assert that emergency measures are consistent with human rights law by default because they protect public health. Governments must be transparent about their justifications for emergency public health measures. Limitations to human rights must be justified and regularly scrutinised One test is whether the measure being imposed is the only possible one that would work, or the least restrictive one that could achieve the desired outcome. In other words, a worldwide pandemic could threaten many lives and have large, long-lasting public health impacts – so the need to combat this threat could justify more significant limitations on human rights than a measure designed to combat a less serious threat to the community. The principle of proportionality is whether the ‘public interest’ achieved by the measure outweighs the limitations it places on people’s individual human rights. When making a decision about whether a measure unjustifiably limits human rights, international human rights law uses ‘the principle of proportionality’. “t is not sufficient that the restrictions serve the permissible purposes they must also be necessary to protect them.” – UN Human Rights Committee. You can read the Commission’s view on limiting human rights here. We must make sure that we do not accept greater restrictions on our freedom than are needed to keep us safe. However, we also need to be very careful to avoid the creeping authoritarianism we have seen happen elsewhere in the world during COVID-19. We need to combat COVID-19 strongly and effectively. Ultimately, it is necessary to look at each measure on a case-by-case basis and see if the limits it places on human rights is proportionate to the benefit it achieves in combatting COVID-19. The measures chosen must be the least intrusive measures possible that will still be effective. However, under international human rights law, governments also have a responsibility to demonstrate that any limitations they put on rights are proportionate to the threat. There is clearly a rational link between health responses to the pandemic and the risk faced by the community. We can only provide guidance from a human-rights perspective as to whether emergency measures are necessary and proportionate.Īny measures that limit people’s human rights must be necessary to achieve a legitimate purpose.ĬOVID-19 is a very serious threat to public health, and to the human rights of people in the community (such as the rights to life, and the highest achievable standard of health). The Australian Human Rights Commission is not a public health body. Limitations to human rights must be necessary and proportionate The law must be clearly communicated and accessible for people so it can be understood by everyone in the community. They must not give governments or individuals unchecked powers. The laws must be clear, specific, targeted and have defined limits. The laws must disclose with sufficient certainty the extent of interference with people’s human rights and the reasons for it. To be prescribed by law, limitations on people’s human rights must be clearly set out in laws (or a comparable measure, for example, delegated legislation) that are public and made in advance. COVID-19 emergency measures must be prescribed by law. ![]()
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