Whilst the measures introduced have contributed to Australia’s success in flattening the curve, it is important to be cognisant that those measures were introduced via regulation “with little oversight as to how they may affect human rights in Australia”, Australian Lawyers for Human Rights president Kerry Weste said, particularly with regard to Australia’s international human rights obligations to the rights to life and health, as well as civil, political, social and economic rights.

Whose human rights have suffered at this time?

In conversation with Lawyers Weekly, Ms Weste said: “In addition to the obvious risks to life and health, physical distancing and stay-at-home measures have meant that vulnerable people face more barriers in exercising their human rights, including accessing the legal and non-legal assistance they need.”

“People with chronic medical conditions have faced the obvious increased risk to life and health, which has affected their ability to go about their daily lives. People in aged or disability care facilities have in some cases faced incredibly strict physical distancing recommendations, including reports [of] people being locked in their rooms, whilst also facing the increased risk of health that has seen outbreaks of COVID-19 within those facilities. Where people require at-home assistance, this assistance may have been reduced,” she said.

“First Nations people face an increased risk to life and health due to higher levels of pre-existing medical conditions, as well as risks of transmission within remote communities. There are also concerns that the measures intended to protect First Nations people in remote communities can have the unintended effect of creating other risks, including in relation to food security.

“People in contact with the criminal justice system generally have faced more barriers in accessing legal advice about the charges against them. Whilst the courts have continued to operate, many of the face-to-face services, including legal advice, have significantly reduced because of the health risks.

“People in prison and detention facilities (including youth detention, police custody and immigration detention) face a much higher risk to life and health, due to the close confines within which they live, as well as limited access to legal assistance. People in immigration detention have made ​complaints to the Commonwealth Ombudsman​ due to the risks they face in detention and the inadequacy of measures being taken to mitigate those risks

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“People who are subject to domestic violence and elder abuse face barriers to accessing the legal and non-legal help they need due to [stay-at-home] and physical distancing measures, leaving them within the confines of the control of the perpetrator of the abuse.

“People with insecure visa status, including temporary visa holders, workers at risk of modern slavery, people seeking asylum and refugees have also been left in precarious situations, with limited access to basic medical, financial and social support​.”

Issues to be aware of moving forward

Ms Weste said that many of the human rights issues arising from the COVID-19 crisis bring into sharp focus the “complete absence” of any legislated national human rights law framework in Australia.

“We are the only Western liberal democracy without a federal Human Rights Act or Bill of Rights. This means that everyone in Australia lives without any human rights framework to ensure the work of government protects their rights and freedoms,” she posited.

“This pandemic has proven that the impact of the absence of adequate human rights laws in Australia is, and will continue to be, most keenly felt by the most vulnerable in our community such as people living with disability and chronic medical conditions, people in contact with the criminal justice system, children and young people, women and girls, First Nations peoples, workers at risk of modern slavery and refugees.

“When we look to human rights issues such as the right to privacy and the issues raised by the COVIDSafe App, we again see the dire need for an Australian Human Rights Act which would provide a framework for ensuring government measures are proportionate and contain appropriate safeguards.”

How lawyers can help

The legal community is one of the best-placed sectors to champion human rights and defend the rule of law,” Ms Weste submitted.

“As lawyers we must be particularly alive to trends in [lawmaking] that reduce the oversight of courts, impinge on judicial discretion and threaten the separation of powers. These principles are essential in protecting human rights,” she concluded.

“Our vigilance can’t just be about reacting to laws that undermine human rights, it also has to be about advocacy for positive changes to create a culture of respect for human rights. Lawyers have a key role to play in advancing the case for a federal Human Rights Act with lawmakers and also in educating the community so that everyone in Australia can enjoy the same human rights protections that are afforded to the citizens of every other comparable country in the world.”