|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Parliamentary Joint Committee on Human Rights |
|
Purpose
|
These seven legislative
instruments[2] determine remote
communities' requirements to prevent a person from entering or exiting a
designated area unless they meet certain
criteria, to prevent or control the
spread of COVID-19 in designated areas
|
|
Portfolio
|
Health
|
|
Authorising legislation
|
|
|
Last day to disallow
|
These instruments are exempt from disallowance (see subsections 477(5)
and 477(6) of the Biosecurity Act 2015)
|
|
Rights
|
Health; life; free movement; private life; equality and
non-discrimination
|
Controlling entry and exit to certain remote Northern Territory communities
1.105 These Biosecurity determinations designated (or amended the designations) of a number of geographical areas in the Northern Territory for the purposes of the Biosecurity Act 2015 (Biosecurity Act). They established that persons could not enter or leave these areas except in specified circumstances during specified periods of time. These time periods differed depending on the determination and area. The first period began on 20 December 2021[3] and the last period ended on 17 February 2022.[4] The length of time an area was subject to entry and exit requirements differed according to the area, with some areas (such as Amoonguna, Yuelamu and Yuendumu) subject to three extensions, totalling 15 days.[5]
1.106 These instruments were made under section 477(1) of the Biosecurity Act, which provides that during a human biosecurity emergency period, the Minister for Health may determine emergency requirements, or give directions, that they are satisfied are necessary to prevent or control the entry, emergence, establishment or spread of the disease in Australian territory. Failure to comply with such a direction is a criminal offence punishable by five years' imprisonment, or a penalty of up to $63,000.
International human rights legal advice
Rights to life, health, freedom of movement, private life and equality and
non-discrimination
1.107 The explanatory statements accompanying these determinations note that the purpose of designating these geographical areas is to prevent or control the entry or spread of COVID-19 in these areas.[6] As the measures are intended to prevent the spread of COVID-19, which has the ability to cause high levels of morbidity and mortality, it would appear to promote the rights to life and health.[7] The right to life requires the State to take positive measures to protect life.[8] 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.[9] The right to health is the right to enjoy the highest attainable standard of physical and mental health, which includes taking steps to prevent, treat and control epidemic diseases.[10]
1.108 However, by restricting entry and exit to these locations, these measures also limit a number of other human rights, including the right to freedom of movement, a private life and equality and non-discrimination. The right to freedom of movement includes the right to move freely within a country for those who are lawfully within the country. It is linked to the right to liberty—a person's movement across borders should not be unreasonably limited by the state.[11] It also encompasses freedom from procedural impediments, such as unreasonable restrictions on accessing public places.
1.109 The requirement to specify reasons for entering or leaving a designated area also engages the right to a private life. The right to privacy prohibits arbitrary and unlawful interferences with an individual's privacy, family, correspondence or home.[12] A private life is linked to notions of personal autonomy and human dignity. It includes the idea that individuals should have an area of autonomous development; a 'private sphere' free from government intervention and excessive unsolicited intervention by others.
1.110 Further, as these remote geographical areas likely have a high proportion of Indigenous persons living there, the restrictions likely had a disproportionate impact on Indigenous persons. Consequently, the measures may also engage the right to equality and non-discrimination,[13] which provides that everyone is entitled to enjoy their rights without distinction based on a personal attribute (for example, race).[14] The right to equality encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights). Indirect discrimination occurs where 'a rule or measure that is neutral at face value or without intent to discriminate', exclusively or disproportionately affects people with a particular protected attribute.
1.111 These rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective. As there are no statements of compatibility accompanying the explanatory statements to these determinations,[15] no assessment of the compatibility of these measures with any human rights has been provided.
1.112 While the measures seek to achieve the legitimate objective of protecting public health, questions remain as to whether the measures are proportionate. The length of time these restrictions were in place is an important consideration and it is noted that each determination generally lasted less than one week. However, it is noted that there is no set limit on the amount of extensions that may be applied. There is also insufficient information in the explanatory statements as to:
• whether these measures constitute a proportionate limit on the rights to freedom of movement and a private life, having particular regard to the existence of any safeguards and oversight mechanisms;
• whether these measures have a disproportionate impact on Indigenous Australians;
• why it was necessary to impose these restrictions on the designated remote communities over and above the COVID-19 restrictions imposed by the Northern Territory government; and
• whether affected community members in these remote communities were consulted prior to the imposition of these measures, and/or were consulted about the measures while they were in place (noting that information in the explanatory statements suggested consultation was focused on governments, land councils and health organisations).
1.113 Without further information, it is not possible to conclude as to whether these determinations permissibly limited the rights to freedom of movement, private life and equality and non-discrimination.
1.114 The committee notes that these legislative instruments determined requirements for entry to, or exit from, designated remote communities in the Northern Territory for a range of different short time periods.
1.115 The committee considers that the measures, which were designed to prevent the spread of COVID-19, promoted and protected the rights to life and health, noting that the right to life requires that Australia takes positive measures to protect life, and the right to health requires Australia takes steps to prevent, treat and control epidemic diseases. The committee further notes that the measures limited the rights to freedom of movement, a private life and to equality and
non-discrimination. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.
1.116 The committee considers that the measures sought to achieve the clearly legitimate objective of seeking to prevent the spread of COVID-19 to vulnerable remote communities. The committee also notes the particular importance of seeking to protect the life and health of those who reside in remote communities, who may be particularly vulnerable to COVID-19. The committee also considers that the limited time period for each of these designations greatly assisted with the proportionality of the measure.
1.117 However, the committee notes that as there are no statements of compatibility accompanying these determinations, some questions remain as to whether the measures were accompanied by sufficient safeguards to ensure any limitation on the rights to freedom of movement, private life and equality and
non-discrimination was proportionate.
1.118 The committee notes that there is no legislative requirement that these determinations, which are exempt from the disallowance process, be accompanied by a statement of compatibility.[16] However, the committee notes its role is to scrutinise all legislative instruments for compatibility with human rights, including exempt legislative instruments.[17]
|
Suggested action
1.119 As the committee has consistently said since the start of the
legislative response to the COVID-19
pandemic,[18] given the human rights
implications of legislative instruments dealing with the COVID-19 pandemic, it
would be appropriate for all
such legislative instruments to be accompanied by a
detailed statement of compatibility (regardless of whether this is required as
a
matter of law).
|
1.120 The committee draws this matter to the attention of the minister and the Parliament.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Biosecurity (Remote Communities) Determinations, Report 2 of 2022; [2022] AUPJCHR 14.
[3] Biosecurity (Emergency Requirements—Remote Communities) Determination (No. 2) 2021 [F2021L01863].
[4] Biosecurity (Emergency Requirements—Remote Communities) Determination (No. 3) 2022 [F2022L00104].
[5] See Biosecurity (Emergency Requirements—Remote Communities) Determination (No. 1) 2022 [F2022L00029]; Biosecurity (Emergency Requirements—Remote Communities) Amendment Determination (No. 1) 2022 [F2022L00041]; Biosecurity (Emergency Requirements—Remote Communities) Determination (No. 2) 2022 [F2022L00073].
[6] Explanatory statement, p. 1.
[7] Right to life: Iinternational Covenant on Civil and Political Rights, article 6. Right to health: Iinternational Covenant on Economic, Social and Cultural Rights, article 12.
[8] International Covenant on Civil and Political Rights, article 6.
[9] See United Nations Human Rights Committee, General Comment No. 36, Article 6 (Right to Life) (2019), [26].
[10] International Covenant on Economic, Social and Cultural Rights, article 12.
[11] UN Human Rights Committee, General Comment 27: Freedom of movement (1999) [8]. The freedom to leave the territory of a State may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country. The right of the individual to determine the State of destination is part of the legal guarantee.
[12] UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [3]-[4].
[13] International Covenant on Civil and Political Rights, articles 2 and 26. See also International Convention on the Elimination of All Forms of Racial Discrimination.
[14] The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.
[15] Noting that section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 only requires rule-makers to prepare a statement of compatibility in relation to a legislative instrument that is subject to disallowance under section 42 of the Legislation Act 2003.
[16] The Human Rights (Parliamentary Scrutiny) Act 2011, section 9, provides that only legislative instruments subject to disallowance under the Legislation Act 2003 require a statement of compatibility.
[17] The Human Rights (Parliamentary Scrutiny) Act 2011, section 7, provides that the function of the committee is to examine all legislative instruments that come before either House of the Parliament for compatibility with human rights.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AUPJCHR/2022/14.html