In response to various posts on COVID restrictions I have received comments, both public and private, from people wanting to put arguments about why the restrictions are unlawful. This is a blog not a series of refereed journal papers and I have not had time to deal with those questions fully. In this post, and in the one that follows (Challenging COVID restrictions – part 2) I will try to address some of those questions.

This first part will look at the big picture and the power of state and federal governments to impose the sorts of restrictions they have.  In part 2 I will look at some criticism of the specific restrictions and their enforcement.

The Australian Constitution does not have a bill of rights.  We do not have any constitutionally guaranteed rights other than the implied right to freedom of political communication. Even so Australia has signed up to various international treaties in particular the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights.  Those two treaties, along with the Universal Declaration of Human Rights are said to be the International Bill of Rights.

Even though Australia has signed up to those conventions, they do not form part of Australian law until adopted by the domestic legislature.  The Commonwealth does not have a Human Rights Act but there is the Australian Human Rights Commission established by the Australian Human Rights Commission Act 1986 (Cth). One of the functions of the Commission (s 11(e)) is:

… to examine enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments, as the case may be, are, or would be, inconsistent with or contrary to any human right, and to report to the Minister the results of any such examination.

But human rights (other than the right to life) are not absolute. Every convention provides that rights can be limited, for example the International Declaration of Human Rights says (emphasis added):

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

In the current crisis minds may differ what is required for the ‘just requirements of … the general welfare’.  Some people may think the current restrictions go beyond that limitation; others will think that it does not.  One way to resolve that, other than a shouting match, is the requirement that the restrictions ‘are determined by law’.

In Australia, the Commonwealth legislature has the power to make laws with respect to, inter alia, ‘quarantine’ and ‘immigration and emigration’ (Australian Constitution s 51(ix) and (xxvii)).  To give effect to those powers (and others) the legislature has passed the Biosecurity Act 2015 (Cth).  Addisons lawyers, in their blog post What is the scope of government powers in response to COVID-19? (6 April 2020) say (references omitted):

Since the declaration of a “human biosecurity emergency” under the Biosecurity Act in relation to COVID-19 on the 18 March 2020, the Federal Health Minister has had expansive emergency powers to:

  • restrict the movement of persons, goods or conveyances;
  • require that places be evacuated; and
  • make directions to close premises,

which can be exercised up to 18 June 2020, unless the “human biosecurity emergency” is extended. The Governor-General may extend the period indefinitely, with each extension being for no longer than 3 months.

The Director of Human Biosecurity also has expansive powers to create temporary quarantine areas (“human health response zones”) to reduce the risk of spread of COVID-19, and biosecurity officers have powers to require individuals to undertake certain biosecurity measures (e.g. movement restrictions and medical examination).

We can see the Commonwealth’s action in areas like requiring everyone who enters the country to undergo 14 days quarantine.

The states have much wider powers than the Commonwealth and most of the restrictions imposed are being imposed under state or territory public health laws.  To again quote Addisons (references omitted):

The States and Territories have very broad powers under each of their public health legislation, which each state and territory has used in its response to the spread of COVID-19 in Australia.

In NSW, the Minister for Health and Medical Research has wide powers under the Public Health Act 2010, to take actions and give directions considered necessary to deal with public health risks. Additionally, on 25 March 2020, the NSW Parliament enacted the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 to amend various pieces of legislation to prepare services and institutions for the impacts of COVID-19.

In Victoria, there are general public health powers available to authorised officers to eliminate or reduce risks to public health (e.g. closure of premises, restriction on movement and information gathering). However, following the declaration of a state of emergency on 16 March 2020 in relation to COVID-19, the Chief Health Officer has the expansive power to give any direction that is reasonably necessary to protect public health.

On the 29 January 2020, the Queensland Minister for Health and Minister for Ambulance Service declared a public health emergency in relation to COVID-19. By declaring a public health emergency, this gave emergency officers access to an exhaustive list of powers to do such things as restrict the movement of people and entry into premises. On 19 March 2020, the Queensland Government enacted the Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020, to give the Chief Health Officer expansive additional powers, including the ability to give any direction considered necessary to protect public health.

If we take as given that the current restrictions are curtailing what are otherwise expected, and accepted, human rights (see Facemasks, beards and COVID-19 (March 26, 2020)) they have to meet the sort of threshold set out in the International Covenant of Human Rights – that is the restrictions have to be a reasonable and proportionate response to the risk to human health (see Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7; Human Rights Act 2004 (ACT) s 28; Human Rights Act 2019 (Qld) s 13).

If you think that the laws do not meet those thresholds ie that they are not ‘reasonable and proportionate’ you would have to do something about it.  And here let me make it clear that yelling into the wind (ie writing to me, or your MP, or posting on Facebook) is not doing something about it.  You could complain to a human rights watchdog such as the Australian Human Rights Commission but that Commission, like those in Victoria, the ACT and Queensland, cannot declare legislation ‘invalid’ because it breaches human rights. They can make a report to the Minister or Parliament or a court may rule that an Act is inconsistent with human rights. The Parliament may or may not chose to amend the law, but a law that is a contravention of those international obligations remains a law (even if you want to describe it as a bad law) (Australian Human Rights Commission Act 1986 (Cth) s 29; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 31; Human Rights Act 2004 (ACT) s 32; Human Rights Act 2019 (Qld) s 43)).

Agencies like the Health Department etc are required to give effect to human rights. So the Act may not be inconsistent with human rights but the way it is used may be.  Again one could seek a declaration or a finding that the actions is a breach of human rights. Let us assume someone wants to do that about the terms of a public health order currently in force.  Rights can be limited. To again use the phrase from the International Covenant (which is not exactly the same as that in the human rights legislation in those states that have human rights legislation but will suffice to convey the meaning), the restriction has to be ‘for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of … the general welfare in a democratic society.’

If you were to try to get a remedy from a Supreme Court, or the High Court of Australia, you would need to do more than assert your belief that governments are not acting for that purpose or that the restrictions go beyond the ‘just requirements of … the general welfare in a democratic society.’  You may think those things are true but no doubt the government would have evidence to say that is exactly their purpose, they want to restrict our movement not only to protect us but to protect others from us, ie to secure the right to life of those particularly vulnerable to COVID-19.  As for what is acceptable in a democratic society it would be very hard to argue that the restrictions we face are exceptional given that they are consistent with what is happening in nearly every other country including those that would be accepted as ‘democratic’.

A person’s conspiracy theory, that the actions of government are really an attempt to silence objectors, or to make money by those that sell PPE etc won’t prove that there is an ulterior purpose, no matter how much you believe it.  Equally claims that COVID-19 is no worse than seasonal flu or that the economic consequences exceed the benefit won’t prove that’s true particularly if all you can rely on is what you found on the internet. Remember that those advising governments will no doubt be aware of and have studied for years, other pandemics and diseases. Mere assertions that you think they should do something else will no way persuade a court that this is true.  If you wanted to challenge the government’s decisions you need to be privy to and address their evidence and advice, not merely present your own.

If you get nowhere in Australia, you could go to an international body like the Human Rights Committee of the United Nations.   Assuming you meet the thresholds to get there you are not going to get a ruling in time to make any difference to the current restrictions.  In any event, as noted, human rights can be limited and given every country in the world is doing so, arguing that the restrictions in Australia are not ‘for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of … the general welfare in a democratic society’ would seem like a hard mountain to climb.

Conclusion

If you think the current restrictions on your liberty is a breach of your fundamental and inalienable human rights, you could challenge them.  You could apply to a human rights watchdog and in some states, you may be able to seek a declaration in the Supreme Court.  My prediction is that, given the near universal international response, you would have no chance of persuading any tribunal that the current powers are not lawful.  (I would also predict that it would take so long that by the time you got a result the restrictions will have been lifted anyway).

If the general power to make restrictions cannot be denied, the alternative is to challenge the particular application, that is to argue that the various orders are not lawfully made under the Act or that the enforcement is not lawful.  That will be the subject of Challenging COVID restrictions – part 2 (23 April 2020).