Civil liberties and human rights impacted by COVID-19 measures
Last update: 27 May 2020
Australia is a party to the 7 core international human rights treaties. This means Australia has agreed to protect and promote the rights contained in these instruments. The COVID-19 pandemic has required extraordinary measures from the Australian governments to safeguard the rights to life and health. However, a number of measures introduced by the Federal, State and Territory governments restrict some of our key democratic rights, including freedom of assembly, movement and expression which are essential to our democracy.
While these rights may be restricted for reasons of national emergency or public health, any restrictions on these rights should be, at a minimum:
- provided for and carried out in accordance with the law;
- directed toward a legitimate objective;
- strictly necessary in a democratic society to achieve the objective;
- the least intrusive and restrictive available to reach the objective;
- based on scientiﬁc evidence and neither arbitrary nor discriminatory in application; and
- of limited duration, respectful of human dignity, and subject to review. (1)
In times of crisis where uncertainty and fear can spread, decision-makers must now, more than ever, place human rights at the forefront and ensure that emergency measures respect people’s inherent dignity and remain proportionate in achieving their purpose. It is vital that there is continued oversight to avoid unnecessary or unjustifiable breaches of human rights.
Freedom of assembly
Freedom of assembly protects the rights of individuals and groups to meet and engage in peaceful protests.(2) Freedom of assembly can be restricted only if prescribed by law, and for reasons including the protection of public health. Freedom of assembly is protected under various human rights charters in Australia, and under the implied freedom of political communication in the Australian constitution.
Freedom of assembly is essential to our democracy as protest is a vital tool available to the public to push for accountability of government and social change.
Orders introduced by Governments in response to COVID-19 have led to the restriction of the right to protest. For example, a cavalcade protest planned to abide by social distancing restrictions to advocate for the health of detained asylum seekers was banned by local police in Victoria in early April 2020.(3) There are concerns that banning a protest planned to abide by social distancing restrictions impinges on the right to freedom of assembly to a greater degree than is necessary. We need to ensure that restrictions on freedom of assembly are proportionate and removed once the COVID-19 crisis is over. Specifically, governments at all levels must avoid imposing a wholesale ban on protests, and explore alternative measures that could reduce the spread of COVID-19 while having a less burdensome effect on the freedom of assembly.
Freedom of movement
The right to freedom of movement means people who are lawfully in Australia can move freely within Australia, and are free to leave the country.(4) Restrictions on freedom of movement are allowed if provided by law, and necessary to protect public health. Restrictions on freedom of movement must be the least intrusive means of achieving the result.
Orders introduced by Governments in Australia in response to COVID-19 have led to the restriction of the right to freedom of movement, including restrictions on social gatherings, travel bans, and returning travellers being placed in quarantine in hotels. Governments at all levels must continually review these restrictions to movement and appropriately relax them once given medical advice to do so.
Freedom of expression
The right to freedom of expression includes the right to make written and oral communications, to engage in media and protest.(5) It also includes the freedom to seek, receive and give information. Restrictions on freedom of expression are permitted if provided by law and when necessary to protect public health.
Australian governments at all levels need to ensure they are providing clear information on COVID-19 and measures they have put in place to restrict movement and other rights. With the recent launch of the COVIDSafe app, the federal government needs to ensure transparency by providing the full source code of the app, so that experts can verify the privacy protections the government claims to have incorporated in legislation. This information should be accessible, accurate, easy to understand, timely and readily available.
The press needs to have access to parliamentarians, government officials and timely access to relevant information in order to report on COVID-19, and provide scrutiny of Government action.
Sharing information as it becomes available, including government modelling of the spread of COVID-19, will increase public trust in government and the community’s understanding of the measures put in place.
Right to Equality
The right to equality means that every person is equal before the law and is entitled without any discrimination to the equal protection of the law (6). This right guarantees every person protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
To contain the spread of COVID-19, governments in Australia have expanded police powers to enforce new public health directions on social distancing. Police across Australia now have the power to issue fines to people they deem to have breached social distancing directions. While police are bound by conduct obligations to give proper consideration to human rights in their decision-making where a charter of rights applies, their new enforcement powers have been criticised for lacking clarity, which could result in inconsistent application.
Notably, there are concerns that fines are being inconsistently and unjustifiably applied to certain minority groups, thereby constituting a breach of the right to equality. One analysis shows a disproportionate number of fines in NSW issued in areas where there are high First Nations and/or migrant populations(7). Any policing of these measures must not be arbitrary or discriminatory in nature. Australian governments at all levels need to ensure accountability measures are in place to prevent discriminatory and over-policing of minority groups.
You can view international comparisons of covid measures, focusing on emergency laws that affect civil liberties and human rights tracked by the International Centre for Not-for-Profit Law here.
Australian policing and legal support
Factsheets for First Nations People on COVID-19 restrictions
You can view factsheets detailing the rights and restrictions applying to metropolitan areas and remote Aboriginal communities developed by the National Justice Project, NATSILS and UTS Jumbunna here.
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1. UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4, available at: https://www.icj.org/wp-content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-1985-eng.pdf.
2. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 21 (‘ICCPR’).
3. Melbourne Activist Legal Support, Statement of Concern: Unique protest squashed by police due to COVID restrictions (4 April 2020), available at: https://melbourneactivistlegalsupport.org/2020/04/04/statement-of-concern-unique-protest-squashed-by-police-due-to-covid-restrictions/.
4. ICCPR, art 12.
5. ICCPR, art 19.
6. ICCPR, art 26.
7. Osman Faruqi, ‘Compliance fines under the microscope’ The Saturday Paper (online, 18 April 2020) <https://www.thesaturdaypaper.com.au/news/health/2020/04/18/compliance-fines-under-the-microscope/15871320009710>