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LEGALDATE

Volume 34 Issue 1 2022

LEGALDATE

Volume 33, Issue 1, 2022

Covid-19 and its effect upon human rights and
civil liberties

Professor Spencer Zifcak, Australian Catholic University

Covid-19 has affected the lives of Australians in profound ways, most of which have been negative. Rights and freedoms to which Australians had become accustomed for seven decades suddenly had to be reconsidered. Instead of the steady trend towards the progressive advancement of these freedoms, we found ourselves having to adopt laws and policies the effect of which was to restrict the ambit of civil, political and social rights in order to combat the serious dangers to the population represented by illness and even death. 

Throughout the last two years, one of the most significant challenges Australian society has had to face is to create a fair and effective equilibrium between the protection of human rights such as freedom of assembly and movement on the one hand and the right to health on the other.

International human rights

International human rights law presents some clues as to how such an equilibrium could be fashioned. The problems, however, are deep. They can change shape and form through time, depending upon the nature and severity of the pandemic at different stages of its evolution.  

This dilemma can be illustrated when international human rights law, contained in international human rights treaties, is considered.

During the pandemic, the right to health has become ever more important in the implementation of government laws, policies and programs. But, even the right to health is not absolute. It may be constrained in the interests of social cohesion. Let’s look then at the relevant provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as a way of illustrating the problem. 

Article 12 of the ICESCR reads as follows:

‘12(1). The States Parties (nations) to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 

12(2).The steps to be taken by States Parties to the present Covenant to achieve the full realisation of the right shall include those necessary for…

     (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases.  

The Covenant recognises, however, that the right to health and other similar social rights may be restricted. So, Article 4 of the ICESCR states that:

4. The States Parties to the present Covenant recognise that, in the enjoyment of those rights provided by the States in conformity with the present Covenant, the State may subject such rights…to such limitations as are determined by law…solely for the purpose of promoting the general welfare in a democratic society.

These provisions set out the framework within which the current debate and discussion about how to achieve the right to health may reasonably be considered. The right to health is primary. But, it may be limited by laws which themselves are designed to promote societal and democratic welfare. Physical and mental health must be actively pursued. But, not completely at the cost of important civil and political rights like the freedom of speech, assembly and movement or rights to privacy and non-discrimination. 

In a practical sense, there are a number of principles that may inform the balance required. International human rights law allows a government to take emergency measures in response to a health pandemic. Measures that restrict human rights, however, should be plainly necessary, they should be proportionate to the risk to health, and they should be applied in a non-discriminatory way. This means that such measures should have a specific focus and duration and they should be enacted in a way that has the least intrusive effect possible upon recognised civil and political rights.

COVID-19 emergency measures

Emergency measures with respect to COVID-19 should only be used for legitimate public health goals. They should not contain measures that are not strictly necessary to address the health situation or to achieve unrelated purposes, for example to silence the work of journalists or the media. 

Governments should take concrete steps to inform affected populations of what the emergency measures are, where and to whom they apply, and for how long the measures are intended to remain in effect. This information should be updated regularly and distributed widely. 

In the context of health emergencies, restrictions on freedom of assembly and movement should be strictly necessary for that purpose, proportionate and non-discriminatory. As soon as it is safe and feasible, governments should ensure a return to life as normal as possible. 

As to such criteria, the Secretary-General of the United Nations, Antonio Gutteres, said in a recent speech that:

‘The world is facing an unprecedented crisis. At its core is a global health emergency on a scale not seen for a century, requiring a global response with far reaching consequences for our economic, social and political lives. The priority is to save lives. 

In view of the exceptional situation and to preserve life, countries have no choice but to adopt extraordinary measures. Extensive lockdowns, adopted to slow transmission of the virus, restrict by necessity freedom of assembly and movement and, in the process, the freedom to enjoy many other human rights.

Such measures can inadvertently affect people’s livelihoods and security, their access to healthcare, work and education…Measures need to be taken to mitigate any such unintended consequences.’

Limitations on rights

Against that background, we can now consider practical examples of how the requisite equilibrium between the right to health and competing rights such as freedom of movement may effectively be achieved. Before doing so, however, it is worth looking more closely at the criteria appropriate to determining whether limitations upon rights may properly be justified. The legal criteria are the following. 

Legality. The requirement of legality derives from the larger constitutional principle of the rule of law. So, in limiting rights, governments must act in accordance with the law and be democratically accountable for the content and application of the law.

  • Necessity. Limitations upon rights and freedoms must be necessary. The more dire or pressing a health situation becomes, the less likely it is that any limitation on the right to health will become.
  • Legitimate purpose. A law that limits fundamental rights must be enacted for a legitimate purpose. The purpose of this criterion is to ensure that the power of government is not abused when limitations upon rights are imposed.
  • Proportionality. Laws limiting fundamental rights must be proportionate to their purpose. This proportionality requirement is designed to ensure that in enacting limitations, governments do not go further than is necessary for the achievement of the purpose. Proportionality guards against governmental overreach. The limitation must match, but not exceed the protective purpose and be the least intrusive means for achieving it.
  • Non-Discrimination. The non-discrimination criterion ensures that, consistent with basic democratic principles founded upon a commitment to equality and human dignity, limitations should not discriminate against people on improper grounds such as race, sex, age, disability or sexual orientation.

 

The operation of these criteria may be illustrated by reference to one of the most controversial measures introduced by government in response to the COVID-19 pandemic. That is a requirement for vaccine mandates or passports.

Vaccine mandates

The Victorian Government has mandated vaccinations for certain classes of workers in some industries, for example, for health workers, aged care workers, workers on construction sites, hospitality workers and workers who are involved in the operation of large-scale events. 

Vaccine mandates in Victoria have been mandated pursuant to public health orders. Such orders are a form of subordinate legislation. Their enactment, therefore, fulfils the first requirement of legality. One example of these orders is the Guidance for the Pandemic (Open Premises) Order 2022, No.5. 

Pursuant to this order, all persons aged 18 and over, were required to show an employer evidence that the person was fully vaccinated, or possessed an official exemption from vaccination, every time the person entered public or private premises. Correspondingly, an employer must have taken reasonable steps to exclude persons who were are not fully vaccinated or exempt. An employer was not permitted to employ a prospective worker unless that person was fully vaccinated or exempt. 

It has been generally accepted that, subject to certain exclusions, vaccine mandates are a reasonable measure in order to protect individuals and workers in certain industries from the risk of contracting the virus. They are a necessary measure, given the very significant risk to public health caused, not only by COVID-19, but also by unvaccinated individuals. The purpose of the order is legitimate as a means of combating the spread of the disease throughout the population. The order applies equally to all and, on its face, applies in a non-discriminatory way.

Having said this, it is clear that some exemptions to compliance with the mandate are necessary and appropriate for reasons of proportionality. Exemptions should apply to people who are not eligible for vaccination, for example because they are too young. Similarly, exemptions should apply for people with certain medical conditions, for example, because the person is recovering from COVID-19 or because they are undergoing treatment for cancer. 

When issuing vaccine passports, steps should be taken to ensure that the private health information of individuals remains well protected. Vaccine mandates should be time-limited and they should be phased out gradually as case numbers and vaccination rates decline to a safe level.

Freedom of assembly

Another example of the delicate balance to be struck between the right to health and other human rights, concerns the right to freedom of assembly. This freedom allows citizens to gather together for a whole variety of reasons. These reasons range from attending church, watching sporting events and going to music concerts, as well as participating in conferences, viewing art shows, and taking part in cultural festivals. The freedom to gather with other people is fundamental for the exercise of any form of democracy. Article 21 of the ICCPR states that:

‘21. The right of peaceful assembly shall be recognised. No restrictions may be placed on its exercise unless they are in conformity with the law and…are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health…or the protection of the rights and freedoms of others.’

It should be noted immediately that according to this article, freedom of assembly may be restricted in the interest of public health. But, society’s interest in public health cannot be protected to the extent of overriding freedom of assembly completely. Once again, a balance must be struck.

Let’s take the recent protests in Melbourne against COVID related restrictions as an example of the extent to which freedom of assembly may be limited in the interests of public health. Clearly the right to health has to be paramount The overriding purpose of restrictions upon public and private gatherings and a host of other related activities was designed to save lives and prevent infections likely to occur when people gathered too closely together or in very large numbers. 

Restrictions on freedom of assembly came in many different forms. Protestors were required to obtain permits before they could demonstrate. Protests were confined to large public spaces. In crowds, protestors were required to wear facemasks. The imposition of rules with respect to social distancing were absolutely necessary. Penalties were to be enforced for any breaches of COVID rules detected by police. Nevertheless, despite the very real risks to the health of people at or near demonstrations, they were not banned. Instead they were regulated.

Looking again at the relevant criteria, limitations upon political demonstrations were lawful by virtue of enacted public orders. They were necessary for the protection of public health. They were designed for a legitimate purpose, that is, they were adopted in the interests of stopping the spread of the viral disease. They were not discriminatory in that the relevant COVID rules applied equally to all who chose to demonstrate their opposition to the government’s curtailment of certain rights, such as freedom of assembly and movement. 

The only question that remains was whether the enacted restrictions were proportionate in all the circumstances. Clearly there is room for disagreement on this question. One might argue, for instance, that the requirement to obtain a permit for a demonstration was a disproportionate infringement upon freedom of assembly. The right to protest should not be conditional upon governmental permission. On the other hand, it could be argued that permits were proportionate to foreseeable risks. They were necessary in order to ensure in advance that demonstrations would not spiral out of control, so endangering the lives and physical integrity of protesters and bystander alike. The second argument was stronger but the first could not be discounted. 

In considering the question of proportionality in this circumstance, however, two matters were  clear.  Article 21’s protection of freedom of assembly extends only to peaceful demonstrations. Violent protests lose their protection as rights automatically. Banning political demonstrations altogether, even in the interest of public health, is equally impermissible. Acts of civil disobedience, marches, sit-ins, and the use by participants of similarly passive means of protest will normally be proportionate responses to contestable governmental action. For that reason, such forms of protest should be allowable. 

Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and former President of Liberty Victoria.

Student activities

1. In your own words, why do you think we had to adopt new laws and policies to restrict our freedom?

2. Why was it important to find a balance between the right to freedom of movement and the right to keep ourselves, and others, healthy?

3. How does section (4) of the ICESCR restrict sections 12(1) and 12(2)?

4. Why do you think the rights to free speech, assembly and movement or the right to privacy and non-discrimination, should be contemplated when considering the right to health?

5. Under what conditions does international human rights law allow a government to take emergency measures?

6. What should COVID-19 emergency measures not contain?

7. What should be the priority of governments during a global health emergency?

8. In your own words, write a list of the five legal criteria that are used to determine the appropriateness of limitations on rights.

9. Why do you think vaccine mandates have been imposed? What justification is there for such mandates?

10. When are exemptions to vaccine mandates appropriate?

11. Explain the balance between freedom of assembly and the protection of public health. How could the question of proportionality affect this balance?

12. After reading this article, do you think lockdowns were necessary? Discuss.

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