Enhancing human rights in a post-COVID world

 The catalyst of a pandemic

Women in Property lunch

Emeritus Professor Rosalind Croucher AM

Acknowledgement

Thank you to the Property Council for inviting me to speak to you today—and particularly Jane Fitzgerald whose idea it was.

Let me begin by acknowledging the traditional custodians of the land on which we meet, the Gadigal people of the Eora Nation and pay my respect to Elders, past, present and emerging, and also to acknowledge any Indigenous guests attending today.

Given our proximity to Barangaroo, and our celebration of women, and ‘women in property’ today, perhaps we should also remember her. Barangaroo was the second wife of Bennelong, and acted as an intermediary between the Aboriginal people and the early British colonists in New South Wales. She was a member of the Cammeraygal clan of the Eora Nation from across the harbour. Although not her traditional land, Barangaroo is named in her honour.

Today, I am joined by two exceptional colleagues: the Sex Discrimination Commissioner, Kate Jenkins, and the Age Discrimination Commissioner, the Hon Dr Kay Patterson AO.

‘Women in property’

This is a women in property lunch, which brings together two key ideas for me.

I spent a large portion of my academic life researching, writing and teaching about property law — and with a gender lens. My PhD thesis juxtaposed ideas of ‘property’ with ideas of ‘family’ in legal history, focused on the idea of ‘testamentary freedom’. This was about the degree of freedom of property rights in the context of wills.

The idea of ‘women and property’ for me, as an academic, was expressed as an equation: about framing limitations on property in favour of rights of family. That’s by way of preliminary and to say I am so impressed to see a room full of ‘women in property’. Amongst you is also my amazingly talented sister (‘no 2’ in our family of four sisters), so indulge me in adding a tribute to her – Leone Lorrimer.

And so to my remarks. I have chosen to speak about the challenge, indeed opportunity, of enhancing our Australian understanding of human rights in a post-COVID world. Commissioner Jenkins and Dr Patterson can bring this into focus in relation to women.

The catalyst of a pandemic

Have you noticed over the past almost two years now that there’s been a lot of talk about rights?

I think this has been a really good thing, speaking to a heightened ‘rights consciousness’ in the face of COVID-19 restrictions—of which there have been many.

We have all encountered limits—to travel, to protest, to move freely in the community as and when we choose, such as to shop, to see family, to sing and play music in some contexts (especially if you are a woodwind player)—and we have had legal requirements imposed when we do move in the community— wearing masks, logging into every building that we enter and providing personal information about our vaccination status.

We have all encountered and navigated the burdens, of caring, of home schooling, of surviving the emotional and physical impacts of extended lockdowns. And Governments have had to work out whom to prioritise in protecting people from the pandemic – the elderly, frontline workers, people more vulnerable to impacts, such as persons with a disability and Indigenous communities, for example .

Sam Mostyn spoke fervently about the ‘human and social infrastructure of the care economy’ that has ‘kept us alive and together’ through COVID-19.^[1] It is ‘powered by women who are often underpaid, if they’re paid at all’—'these workforces are the arteries of our nation’.

The response to COVID-19 has united—and divided—Australia.

The Commission acknowledges that to protect against the spread of the virus, tough decisions have had to be made to restrict some basic human rights—such as freedom of movement and association.

This should never be done lightly.

And human rights law says that when considering any restriction, it is incumbent upon government to ensure that each restriction is necessary and proportionate to the benefits they achieve. All restrictions must be the least restrictive measures possible, and they must only be in place for the shortest period of time.

The Commission has been particularly concerned to ensure that the pandemic does not result in restrictions on rights that extend beyond their targeted need, and which would have an enduring impact on our community.

As an example, the Commission published a major report last year on Human Rights and Technology and expressed concerns about the use of facial recognition technology, calling for a moratorium on its use until such time as adequate safeguards are put into place. There has been speculation that such technology may be relied upon in various contexts to respond to the pandemic – although none have been put into place as yet. I can foreshadow the Commission would have serious concerns about the appropriateness of such technology being deployed, be it in quarantine or to identify people in public settings and would expect detailed explanation of the safeguards being put into place alongside any such measures, in order to determine whether this approach is appropriate.

Government measures in the interests of protecting the health of the entire community have provided a range of conversations about our rights. Not only is this a public health issue, it is also a human rights issue.

The Australian Human Rights Commission has provided much information on a wide range of topics on human rights and COVID, and we have worked closely with both the Federal bodies, like the Fair Work Commission and Safe Work Australia, and our state and territory counterparts, to ensure consistency of information.

Our Commissioners have been front and centre of many of the forums for discussion about the impacts of the pandemic on particular groups, and the ways forward. Kate Jenkins and Dr Patterson can speak about their leadership through this time—and particularly about the experiences of women who have been greatly affected by the pandemic and, to quote Sam Mostyn again, ‘trying to deal with the relentless upheaval caused to our world and this country by COVID’.

Other examples include: the work of Social Justice Commissioner June Oscar AO, particularly regarding the challenges faced by Aboriginal and Torres Strait Islander communities; the work of Disability Discrimination Commissioner, Dr Ben Gauntlett, in developing guidelines on the rights of people with disability in health and disability care, and the September 2020 report that the Commission co-authored with Kids Helpline on the impacts of COVID-19 on children and young people who contact Kids Helpline.

COVID-19 has also had an extraordinary impact on the number and type of complaints received by the Commission as part of our statutory complainthandling functions. We have received a huge increase in inquiries and more than doubled our complaints: first about racial discrimination (for anyone who looked of Asian appearance), then to topics such as travel restrictions, privacy, family reunions, masks and now vaccinations.^[2]

The claims about rights and freedoms in our community, sometimes even to the point of hyperbole, have demonstrated that it is timely to engage in a deeper conversation about human rights—and especially about what rights are protected, or not, under Australian law, and measures available to enforce them.

In part, this is a conversation about public understanding of rights. In part it is also a conversation about the legal architecture, or grammar, for protecting rights and freedoms in Australia. Our experience this year, of responding to a pandemic, has brought the contours of this conversation into stark relief.

It has provided the catalyst for enhancing human rights protection.

What I see as a significant lesson from this COVID pandemic is simple: Premiers, Chief Ministers, the Prime Minister and Health ministers, have stood before us – at times on a daily basis – and provided their evidence and the justification for why they have made decisions that significantly affect people’s lives and their human rights.

They have explained why closing down entire cities, or closing the borders of a state are necessary. They have explained what support they would put in place for community members experiencing extreme hardship as a result.

This has been a positive.

For a long time, Government only had a few tools in the box to slow the spread of COVID—such as lockdowns. Now they have more options with vaccination rates in the mid-90% range, albeit with equally, if not more complex, challenges to address.

Moreover, governments must be able to justify why the measures they have introduced are the most limited intrusion on human rights that is possible, and that they are proportionate to the situation, at all times, every day.

Governments haven’t always got it right, and views differ about whether they moved too quickly or too slowly, or the measures were robust enough or unnecessary, whether they affected certain groups in the community more or not.

But if we step back from the detail, there is one consequence to the way this pandemic has been managed that we should expect from our governments into the future.

Put simply, dialogue and evidence for their decisions.

The ‘new normal’ should be public discussion about whether enough is being done to protect human rights and, conversely, whether the minimal restriction on rights is being imposed.

The pandemic has busted the myth that this is too hard to do, or that expecting that governments will engage in this way somehow takes away from their authority as elected officials.

And what about our laws?

The limitations on our human rights architecture

Most Australians would be surprised to learn that there are very few direct legal protections of human rights and freedoms in Australia.

Australia has laws to protect people against discrimination. We currently have four federal Acts, in the areas of race, sex, disability and age, with Commissioner Jenkins and Dr Patterson appointed under two of these. And a proposal for another Act, the Religious Discrimination Bill, was introduced by the Prime Minister into the House of Representatives last Thursday. This would be the fifth piece, and an important one, in the architecture of federal discrimination law: the set of laws to protect against discrimination on particular grounds (or ‘protected attributes’)

In Australia, our discrimination laws are our principal tool for rights protection. There is big missing piece in protection.

The missing piece

The Commission was designed around a Human Rights Act. The Commission itself was the mechanism to operationalise it. But it never happened—the Bill for this central piece in the legislative design passed the House of Representatives, but did not survive the Senate. The institution of the Commission was established, but the full domestication of the laws that prompted our establishment, after the ratification of the International Covenant on Civil and Political Rights, did not happen. Instead, we got discrimination laws; one after the other.

From the perspective of the Commission’s jurisdiction, it is still unfinished legal architecture. We are like a doughnut—with a hole in the middle.

We don’t have laws throughout Australia that set down positively the rights and freedoms we should enjoy and what that should look like. And while we can and do have complaints that invoke instruments like the International Covenant on Civil and Political Rights, it is essentially a powerless and invisible jurisdiction,^[3] seen recently in some of the COVID-related complaints we have received raising things like travel restrictions and privacy. We can begin processes in relation to such complaints, but they are not based on Australian laws and complainants have no enforceable remedies anywhere.

Victoria, Queensland and the Australian Capital Territory have Human Rights Acts that require the governments in those places to act consistently with human rights and to fully consider human rights in law, policy and practice. No such law exists at the federal level or in other states and territories.

Australia is one of the only liberal democracies in the world that does not have its own Human Rights Act at the national level.

Such laws provide powerful framing instruments for decision-making and enable the development and embedding of what I call ‘rights-mindedness’ in policy and legislative design.The absence of a Human Rights Act does not mean that we do not have a strong tradition of rights and freedoms—we do—and they go back directly to the Magna Carta, a copy of which is framed in my home study, but it does mean that the rights and freedoms enshrined in these international human rights instruments are not directly enforceable in Australia. Which means that they can be conveniently ‘distanced’, where the moment or politics pushes the issue.

And so I ask, how do we create an Australian grammar of human rights, consistent with our promises to the world?

And when I say ‘our’, I refer to our federal Governments over the years. I note in this respect that if you look at the treaties Australia has committed to and their ratification, it is an equal split of Coalition and Labor support. It is neither a ‘Labor’ nor a ‘Coalition’ project.^[4]

The Australian conversation about human rights should, therefore, be above politics.

Our experience with COVID-19 responses has provided in many ways the national test case and setting for looking at answers.

What will the post-COVID world be like?

For a start, we will be far less complacent about viral transmission.

Workplaces will be different.

Workplace cultures will be different—‘presenteeism’ has been kicked out of the room and the opportunity has been opened wide to take the issue from ‘individual flexibility arrangements’, in the interests of work/life balance, essentially framed as a ‘women’s issue’, to a whole shift in workplace culture. From the individual to the systemic is a positive change.

Government accountabilities should be different—to maintain the people’s trust in our governments and our parliaments, and those who are delegated to act on our behalf, especially in times of emergency, a trust that has been the foundation of our democratic structure since 1688.

And we have the opportunity to put human rights thinking at the centre of decision-making.

***

Thank you for the opportunity for making some opening remarks as your keynote speaker today.

I am very honoured to be the ‘warm-up act’ to my colleagues, Commissioner Kate Jenkins and Dr Kay Patterson, and to leave you and them in the deft hands of Brooke Boney.

Thank you.

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Endnotes

1. Sam Mostyn, Address to the National Press Club of Australia, 24 November 2021.
2. Just as an example, in the period from 1 July 2021 to 31 October 2021, the Commission’s Investigation and Conciliation Service (ICS) received 1,520 complaints. This represents a 69% increase when compared with the same period last year. Of the 1,520 complaints received during this period, 778 were COVID-19 related. By far the most significant number of COVID-19 related complaints (483) concerned disability discrimination particularly in relation to mask wearing requirements and, increasingly, vaccination. COVID-19 also continues to have a significant impact on the number of enquiries received and dealt with by the Commission’s National Information Service (NIS) (9,671 compared with 5,168 in the same period last year).
3. See my consideration of the complaints-handling jurisdictions of the Commission in ‘“Seeking equal dignity without discrimination”—The Australian Human Rights Commission and the handling of complaints’ (2019) 93 Australian Law Journal 571.
4. Apart from the Second Optional Protocol to the ICCPR on the abolition of the death penalty which I am sure would have been supported by both sides of politics, it is an equal split for the remaining 20 signing and ratification moments