Introducing a major change to public sector accountability can be a difficult task in the best of times. It is no small feat to educate more than 200,000 public entity staff across the state about their new obligations to act compatibly with human rights and to properly consider human rights when making decisions. Throw in COVID-19 just three months into implementation and the degree of difficulty goes to the next level, right?
Well, yes but no.
I can envisage no greater test of new human rights legislation than a global pandemic. The situation necessitated a swift and far-reaching response from all levels of government to protect our community–and yet, in spite of the undeniable challenges this presented, the inaugural Annual Report on the operation of Queensland’s Human Rights Act reveals promising signs of a human rights culture emerging across our public sector, in our judiciary, and within the halls of parliament
The COVID-19 pandemic prompted the Queensland Government to impose restrictions on human rights the likes of which had not been seen in Australia since the world wars.
Almost overnight, people were grappling with the curtailment of their right to freedom of movement during the lockdown. Rights to the protection of families were denied when aged care and prison visiting arrangements were removed. People with disabilities were denied recognition and equality before the law and the right to security of the person when their carers were not designated to be essential workers, and other rights when their residential service providers were authorised to lock their doors and windows.
As the pandemic progressed, people were placed in mandatory hotel quarantine for 14 days and many were, and continue to be, denied the right to humane treatment when deprived of liberty, through the lack of access to fresh air and exercise.
Our courts were forced to abandon jury trials and make other radical changes to procedure that engaged the right to a fair hearing and rights in criminal proceedings. Several people complained that their right to vote had been unlawfully impeded at the March 2020 local government elections.
In June, a Black Lives Matter rally saw Queensland Police deftly accommodate 30,000 protesters exercising their right to peaceful assembly and freedom of expression.
Children from disadvantaged households who were unable to attend school remotely were denied their right to education.
All of these rights are now protected in law in Queensland by the Human Rights Act 2019. So, what sort of protection has the Act offered during the pandemic?
When considering COVID-19 and human rights, the discussion invariably starts with the positive obligations imposed on governments to protect the right the life. Clearly, the Queensland Premier and her Chief Health Officer have taken this obligation very seriously. In fact, not only has Queensland Health acknowledged its positive obligation to ‘take all steps necessary’ to protect life, it has characterised the right as “an absolute right which must be realised and outweighs the potential impacts on any one individual’s rights” .
Of course, as a matter of Queensland law, all human rights are not absolute and may be limited by restrictions that are reasonable and demonstrably justified in a democratic society based on human dignity, equality, freedom and the rule of law.
The Act sets out criteria for determining whether limitations such as the COVID-19 restrictions are lawful, requiring an assessment of reasonableness, necessity and proportionality. Despite the overarching duty to save lives by preventing the spread of the contagion, a public health emergency is not a blank cheque to override individual human rights. Rather, the public health response must be proportionate to the threat posed, should take account of the other risks posed to public health (such as the mental health impacts of the response), and should employ the least restrictive options.
The Human Rights Act has functioned well in its prevention role by providing a robust framework within which agencies can assess their impact on human rights prior to implementing programs. A good example of this can be found in the QPS philosophy of ‘communication, compassion and compliance’ developed to guide their approach to policing public health directions.
The pandemic has certainly got people talking about rights. Despite the chaotic disruption to our lives, it has clearly illustrated to Queenslanders that human rights are not abstract principles only relevant to academics and prison advocates. They are fundamental and inalienable rights that underpin our dignity and freedom. To this extent, COVID-19 has helped the Commission realise its mission of ‘making rights real,’ and the Commission’s complaint mechanism has helped make those rights more tangible by providing access to justice.
The more flexible complaint resolution process under the Human Rights Act (as opposed to that mandated by the Anti-Discrimination Act 1991) has allowed several to proceed to early resolution, and while the numbers resolved in time to be included in the 2019-20 annual report on the Act are small, there are encouraging signs nevertheless that the Act is capable of achieving some very positive outcomes. Public entities have also engaged in the complaints resolution process with a real willingness to examine creative solutions to problems, further demonstrating the promise and potential of the Act.
Rather than (as we might have perhaps expected) having an overall dampening effect on the implementation of the Act, the COVID-19 pandemic and the disruption it caused to service delivery and business as usual is instead accelerating the development of a human rights culture in Queensland.
Building a human rights culture takes time. Like any building project, there will be progress and setbacks, but it should be a reassurance to all of us that in a year which has presented so many challenges, the foundations laid so far are strong and sturdy.