Australia: COVID-19 restrictions and the Civil Liberties - Human Rights quagmire

One positive outcome of the pandemic is it's brought awareness and concerns around human rights and civil liberties to the fore, with questions being asked as to whether recent lockdown measures, border closures and vaccine mandates might be encroaching upon them.

For some in the community, the fact that rights protections in this country are fairly weak might come as a surprise. For others – such as First Nations peoples, refugees and asylum seekers – this was well understood long before COVID-19 ever disembarked at an Australian airport.

Civil liberties advocates have been warning of a general erosion of rights that's been occurring due to the passing of numerous national security bills over the past two decades, with the last such piece of legislation – the Identify and Disrupt Bill – being passed during the extended NSW lockdown.

A key issue that sparked the recent anti-lockdown protests in Melbourne is vaccine mandates. And while most support the right to decide on receiving medical treatment, there are questions when it comes to, say, inmates whose liberty is denied by the state being overseen by unvaccinated guards.

This example reveals that certain rights can come into conflict. Another broader illustration of this is that while some are calling for the end of the lockdowns and the reestablishment of freedom of movement, there are also valid concerns over the right to health of vulnerable communities.

And these examples raise the understanding that some rights are absolute, while others can be limited, and while some are universal, others are based on being part of a society.

Evolving out of 17th century Enlightenment thought, modern human rights developed following the Second World War with the establishment of the UN, although concerns around these inalienable rights had already been expressed by its predecessor the League of Nations early last century.

Human rights are contained in the International Bill of Rights, which comprises the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights and the ICCPR's two optional protocols.

These rights are fundamental to being a human. And international human rights law recognises that most of these rights can have limits placed upon them.

There are only five absolute rights that can't be infringed upon. These are freedom from torture, freedom from slavery, freedom from imprisonment due to the inability to fulfil a contract, freedom from retrospective criminal laws, and the right to recognition before the law.

And there are also derogable and non-derogable rights. Derogable rights are those that can be limited. Article 4 of the ICESCR states that all rights within it can be limited to maintain democracy, while article 4 of the ICCPR stipulates that some of its rights can be limited in states of emergency.

The ICCPR further outlines that some of its rights are non-derogable, meaning they can't be limited during emergencies.

These are the right to life, freedom from torture and scientific experimentation, freedom from slavery, freedom from prison over the nonfulfillment of a contractual obligation, freedom from retrospective criminal laws, recognition before the law and freedom of thought.

The document also sets out the specific circumstances under which certain rights can be limited. In terms of public health emergencies, these are freedom of movement, freedom to manifest one's religion or beliefs, freedom of expression, the right to peaceful assembly and freedom of association.

The other main focus of debate around rights under pandemic measures are civil liberties, which are restrictions placed on government, so it does not interfere with personal freedoms.

This is as opposed to civil rights, which are laws that guarantee an individual's freedom from discrimination.

Some examples of basic civil liberties are freedom of the press, religious freedom, freedom of expression, the right to assemble, the right to privacy and freedom of speech.

These sorts of freedoms and rights are often guaranteed in a nation's constitution or a separate human rights bill.

Unbeknownst to many, Australia is the only western liberal democracy without a federal charter guaranteeing the rights of all citizens under the law. Indeed, the Australian Constitution only protects a handful of rights, including freedom of religion.

In the 1890s, as the Constitution was being drafted, contemplation of a bill of rights being enshrined in the founding document was considered. But it was thought this could lead to conflict with pre-existing laws that discriminated against First Nations people and Chinese residents, so it was dropped.

Over recent decades, progress has been made in this regard at the state and territory level with the enactment of the Human Rights Act in the ACT in 2004, the Victorian Charter of Human Rights and Responsibilities in 2006, as well as the Queensland Human Rights Act in 2009.

A federal bill of rights has been raised on a number of occasions since federation, most significantly in recent times by the Rudd government. Yet, the proposal is consistently dismissed by the major parties. And in NSW, the push for a state human rights act is non-existent at present.

As in Australia, debates around pandemic measures are prominent in the United States. Currently, vaccine mandates are front and centre. And that nation's bastion of freedoms protection, the American Civil Liberties Union has come out in favour of mandates for the COVID virus.

The ACLU has changed its previous position on vaccine mandates with the protection of vulnerable people, children and frontline workers as the reason. It further asserts that the requirement promotes the restoration of “most basic liberties” that have been lost during the COVID pandemic.

Another key issue being debated in the US are mask mandates in schools. A number of states banned mask requirements from educational settings. But with the virus sweeping through that nation again, a number of courts have overruled mask bans to protect kids with disabilities.

The provisions to execute the measures taken under the public health orders in this state are enabled by the Public Health Act 2010 (NSW). All other jurisdictions have similar legislation that enable public health crisis laws.

And there are various court challenges to the validity of pandemic restrictions taking place nationwide.

In terms of vaccine mandates, the federal government has made it mandatory for aged care workers to be vaccinated, while a national healthcare mandate is likely on its way. And in NSW and Victoria, there are long lists of authorised workers who are required to get the jab.

The NSW Council for Civil Liberties (NSWCCL) has long advocated for the protections of the rights of citizens in this state. On the subject of vaccines, it is very clear that it supports the rights of those who do not wish to get vaccinated, and it also supports a form of vaccination certification.

On vaccine passports or certificates, the council supports the requirement that people may need to show proof of vaccination to travel across borders, but it does not support the imposition of such a document in order to dictate whether people can enter certain places, including private premises.

And on a recent decision by the National Cabinet to link federal vaccination certificates with state and territory check-in apps, the NSWCCL has written to NSW customer services minister Victor Dominello to raise its concerns about the scope of this proposal and it has advised on limitations.

“As vaccination status, linked to full participation in public life, appears as de facto mandatory vaccination to many, alternatives must be available,” the NSWCCL letter reads.

“Especially there must not be unlawful discrimination against individuals based on disability, health or religious grounds.”

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