Chapter 1 - Human Rights Scrutiny of Covid-19 Legislation [2020] AUPJCHR 64 (29 April 2020)

• Chapter 11
• Human rights scrutiny of COVID-19 legislation
• Biosecurity Act 2015

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Chapter 1^[1]

Human rights scrutiny of COVID-19 legislation

1.1 The mandate^[2] of the Parliamentary Joint Committee on Human Rights (the committee) is to examine all Commonwealth bills and legislative instruments^[3] that come before either House of the Parliament for compatibility with human rights,^[4] and to report to both Houses of the Parliament on that issue. The committee undertakes its scrutiny function as a technical inquiry relating to Australia's international human rights obligations, and does not consider the broader policy merits of legislation. Its mandate is strictly limited to considering Commonwealth legislation, and as such, it does not review any state or territory legislation.

1.2 The COVID-19 pandemic has required governments across the globe to introduce legislative measures seeking to contain the outbreak and respond to its impacts. At the Commonwealth level, on 21 January 2020 the Director of Human Biosecurity first added 'human coronavirus with pandemic potential' to the list of human diseases, to allow measures to be taken under the Biosecurity Act 2015 to manage and respond to risks to human health caused by the virus.^[5] Since then numerous legislative instruments and Acts have been made to respond to the impacts of COVID-19. As part of its legislative scrutiny functions, the committee has resolved to report on legislation that has been made in response to, or because of, the COVID-19 pandemic.

1.3 This report provides an assessment of the human rights compatibility of legislation made in response to the COVID-19 pandemic, specifically:

• bills introduced into the Parliament on 23 March 2020 and 8 April 2020;

• legislative instruments registered on the Federal Register of Legislation between 21 January and 21 April 2020.

1.4 See Appendix 1 for a list of all legislation considered in this report, including legislation on which the committee makes no comment, on the basis that the legislation does not engage, or only marginally engages, human rights; promotes human rights; and/or permissibly limits human rights.

1.5 The committee considers that legislation taken to control the entry, establishment or spread of COVID-19 is likely to promote and protect the rights to life and health. The right to life requires the State to take positive measures to protect life.^[6] The United Nations Human Rights Committee has stated that the duty to protect life implies that State parties should take appropriate measures to address the conditions in society that may give rise to direct threats to life, including life threatening diseases.^[7]

1.6 The right to health is the right to enjoy the highest attainable standard of physical and mental health.^[8] Article 12(2) of the International Covenant on Economic, Social and Cultural Rights requires that State parties shall take steps to prevent, treat and control epidemic diseases.^[9] The United Nations Committee on Economic, Social and Cultural Rights has stated that the control of diseases refers to efforts to:

make available relevant technologies, using and improving epidemiological surveillance and data collection on a disaggregated basis, the implementation or enhancement of immunization programmes and other strategies of infectious disease control.^[10]

1.7 In addition, legislative responses to help manage the impact of the COVID-19 pandemic on jobs and the economy are likely to engage and promote a number of human rights, including rights to work, an adequate standard of living and social security.^[11]

1.8 While the committee considers the Australian government has obligations under international human rights law to take action to control the COVID-19 pandemic within Australia, it also recognises that legislation in response to this pandemic may limit other human rights. In particular, the committee considers such legislation is likely to engage and may limit rights to freedom of movement and liberty, privacy, equality and non-discrimination, and freedom of assembly.

1.9 International human rights law recognises that reasonable limits may be placed on most rights and freedoms – there are very few absolute rights which can never be legitimately limited.^[12] For all other rights, limitations may be imposed on the right provided certain standards are met. In general, any measure that limits a human right must comply with the following criteria:

• be prescribed by law (have a clear legal basis and be sufficiently accessible and precise);

• be in pursuit of a legitimate objective (one that is necessary and addresses an area of public and social concern that is pressing and substantial enough to warrant limiting the right);

• be rationally connected to (that is, likely to be effective to achieve) its stated objective; and

• be proportionate to the objective sought to be achieved (which includes considering if there are other less restrictive ways to achieve the same aim, if there are effective safeguards or controls over the measure and if it provides sufficient flexibility to consider individual circumstances).

1.10 This assessment applies even in times of emergency. While under international human rights law, certain treaties^[13] allow a State to suspend or restrict the exercise of certain rights in times of emergency that 'threatens the life of the nation', such restrictions can only be to the extent 'strictly required by the exigencies of the situation' and only when a state of emergency is officially proclaimed. Australia has not officially proclaimed an intention to derogate from its human rights obligations during this pandemic. In undertaking an analysis of legislation during this time the usual limitation criteria set out above continues to apply.

1.11 In undertaking its assessment of legislation, the committee's approach is to first consider the legislation proponent's assessment as to the compatibility of the legislation with Australia's human rights obligations, as set out in the statement of compatibility. Where further information is required to determine questions as to compatibility, the committee writes to the sponsor of the legislation seeking clarification and publishes its concerns in its report to the Parliament. The committee considers statements of compatibility are essential to the examination of human rights in the legislative process. While the committee assesses all legislative instruments for compatibility with human rights, the Human Rights (Parliamentary Scrutiny) Act 2011 only requires statements of compatibility to be provided for legislative instruments that are subject to disallowance.^[14] However, given the potential impact on human rights of legislative instruments dealing with the COVID-19 pandemic, the committee considers it would be appropriate for all such legislative instruments to be accompanied by a detailed statement of compatibility.

Biosecurity Act 2015

1.12 Much of the response taken by the Australian government to control the entry, establishment or spread of COVID-19 has been taken under the powers set out in the Biosecurity Act 2015 (Biosecurity Act). As such, in assessing that legislative response, it is useful to understand the powers available under this Act. The Biosecurity Act is the primary legislative means for the Australian government to manage the risk of diseases entering Australian territory and causing harm to human health. The Biosecurity Act sets out a number of powers that can be taken to prevent a listed human disease from entering, or establishing itself or spreading in, an Australian territory. These include empowering the making of legislative instruments that:

• prescribe entry and exit requirements to and from Australia;^[15]

• determine preventative biosecurity measures, including banning or restricting, or requiring, a behaviour or practice;^[16]

• specify an area as a human health response zone, that specifies any requirements for individuals entering or leaving the zone and/or that specifies classes of individuals that must not enter the zone;^[17] and

• specify certain zones to monitor whether a disease may pose an unacceptable level of biosecurity risk, or manage any such risks.^[18]

1.13 In addition, section 475 provides that the Governor-General may declare that a human biosecurity emergency exists if the Health Minister is satisfied that a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale and the declaration is necessary to prevent or control the entry of or emergence, establishment or spread of the listed human disease. Such an emergency was declared in Australia in relation to COVID-19 on 18 March 2020.^[19] Under section 477 of the Biosecurity Act 2015 the Health Minister may determine emergency requirements during a human biosecurity emergency, that include requirements:

• that apply to persons, goods or conveyances when entering or leaving specified places;

• that restrict or prevent the movement of persons, goods or conveyances in or between specified places; and

• for specified places to be evacuated.

1.14 Before determining such requirements the Health Minister must be satisfied that the period during which the requirement is to apply is only as long as is necessary and that the requirement:

• is likely to be effective in, or contribute to, achieving the purpose for which it is to be given;

• is appropriate and adapted to achieve the purpose for which it is to be given; and

• is no more restrictive or intrusive than is required in the circumstances (and how it is to be applied is no more restrictive or intrusive than required in the circumstances).^[20]

1.15 During a human biosecurity emergency period the Health Minister may also give any direction to any person to comply with any requirements imposed under a determination made under section 477, or to close premises or prevent access to premises.^[21] It is an offence for a person to fail to comply with any such requirement or direction, subject to imprisonment of up to five years or 300 penalty units, or both.

1.16 In addition, under Chapter 2, Part 3 of the Biosecurity Act, a human biosecurity control order can be imposed on an individual if the individual may have a listed human disease. A human biosecurity control order that is in force in relation to an individual may require the individual to comply with certain biosecurity measures. Part 3 sets out what those measures are, and they include vaccination, restricting the individual’s behaviour and ordering the individual to remain isolated.

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[1] This section can be cited as Parliamentary Joint Committee on Human Rights, Human rights scrutiny of COVID-19 legislation, Report 5 of 2020; [2020] AUPJCHR 64.

[2] Under paragraph 7(a) of the Human Rights (Parliamentary Scrutiny) Act 2011.

[3] This includes instruments that are not subject to disallowance under section 42 of the Legislation Act 2003.

[4] 'Human rights' is defined in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 to mean the rights and freedoms recognised or declared by seven international instruments: International Convention on the Elimination of all Forms of Racial Discrimination; International Covenant on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights; Convention on the Elimination of All Forms of Discrimination Against Women; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention on the Rights of the Child; and Convention on the Rights of Persons with Disabilities.

[5] See Biosecurity (Listed Human Diseases) Amendment Determination 2020 [F2020L00037].

[6] International Covenant on Civil and Political Rights, article 6.

[7] See United Nations Human Rights Committee, General Comment No. 36, Article 6 (Right to Life) (2019), [26].

[8] International Covenant on Economic, Social and Cultural Rights, article 12(1).

[9] International Covenant on Economic, Social and Cultural Rights, article 12(2)(c).

[10] United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) (2000), [16].

[11] See International Covenant on Economic, Social and Cultural Rights, articles 6 and 7 (work); article 11 (adequate standard of living) and article 9 (social security).

[12] Absolute rights include the right not to be subjected to torture, cruel, inhuman or degrading treatment; right not to be subjected to slavery; right not to be imprisoned for inability to fulfil a contract; right not to be subject to restrospective criminal laws; and the right to recognition as a person before the law.

[13] Only some human rights treaties contain a derogation clause: see for example article 4 of the International Civil and Political Rights. In contrast, the Convention on the Rights of Persons with Disabilities includes a special clause on the obligation to comply with the Convention also during emergencies.

[14] Human Rights (Parliamentary Scrutiny) Act 2011, section 9.

[15] See Biosecurity Act 2015, sections 44-46.

[16] See Biosecurity Act 2015, sections 51-52.

[17] See Biosecurity Act 2015, sections 113-116.

[18] See Biosecurity Act 2015, sections 365, 384 and 395.

[19] See Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 [F2020L00266].

[20] Biosecurity Act 2015, subsection 477(4).

[21] Biosecurity Act 2015, section 478.