Human Rights in the time of Covid

Human Rights in the time of Covid: Ensuring accountability in the contemporary public health context

26TH World Congress of Medical Law

Gold Coast, 5 December 2022

Emeritus Professor Rosalind Croucher AM
FRSA FACLM(Hon) FAAL TEP

Abstract: Responding to the COVID-19 pandemic as a public health emergency tested national readiness in a federal system to contain the spread of the disease effectively and required very quick action by governments. At the same time, those responses involved significant limitations on people’s rights and freedoms, especially freedom of movement. They were also implemented through executive power with limited parliamentary involvement and imposed through decision-making processes that involve significant delegations of power. A foundational principle of Australia’s democratic structure is the sovereignty of Parliament – but different layers of scrutiny have applied to the emergency measures, often without human rights compatibility analysis. This is not just of concern in relation to COVID measures, but more generally, posing serious challenges to Parliament’s constitutionally recognised law-making role. This paper considers the legal framework for responding to the pandemic and considers how human rights principles, and a Human Rights Act, can inform decision-making, especially in times of crisis.

Introduction

WAML President Professor Tom Noguchi, Program Chair, Professor Roy Beran, Co-Chair Professor Vugar Mammadov, distinguished guests.

I wish to acknowledge the traditional custodians of the land on which we meet and pay my respects to elders past, present and emerging.

As President of the Australian Human Rights Commission, the national human rights institution, I can observe that there are so many challenges to human rights globally – in the Ukraine, the position of women and girls in Iran and Afghanistan.

And for the World Association of Medical Law, there are always so many topics of interest, and indeed many emerging ones. Indeed, just last week I was a panellist in a forum on Neurotechnology and the Law, concerning the very many issues that arise where brains and computers are connected to each other. Perhaps such a topic will be on our agenda very soon.

The shared experiences of a public health emergency have prompted many reflections about public health responses, and about law – about the proper scope and limits of executive action and how one frames this in terms of rights.

This paper considers the legal framework for responding to the pandemic and assesses the responses with the application of the lens of human rights in the context of Australia’s limited incorporation of obligations under international human rights treaties. The paper concludes with a consideration of the impact that a federal Human Rights Act might have had on the decision-making responses of the federal Government.

The COVID-19 Public Health Emergency

The outbreak of the COVID-19 pandemic was an emergency: ‘the worst communicable disease outbreak for Australia and globally since the 1918 Spanish flu’.^[1] As at 28 October 2022, there had been over 625 million confirmed cases of COVID-19 globally, and over 6.5 million deaths.^[2]

The responses to COVID-19 united – and divided – Australia. It is appropriate to summon up Charles Dickens in saying, ‘It was the best of times, it was the worst of times’.^[3] There were fights over toilet paper, but it also showed how people could come together, supporting one another and putting ‘put the collective good before our individual interests, and our creativity and adaptability’.^[4]

We remembered the importance of quarantine as a first-line response – as it had been in 1919 in response to the ‘Spanish flu’ pandemic.^[5] Failures in quarantine, such as following the arrival of the Ruby Princess in Sydney, in March 2020, and breakdowns in hotel quarantine in Melbourne, Adelaide and Brisbane, resulted in mass community transmission – precisely as happened in 1919, when soldiers returning from World War One baulked at such constraints, such as, on 10 February 1919, when the men of the Argyllshire had had enough.^[6] Just as seen in recent times, blame was passed between the States and the Commonwealth.^[7]

From a public health point of view, the Australian Government Department of Health led a ‘dry run’, as it were, with Exercise Cumpston 06, to test the capacity of the Australian health system to prevent, detect and respond to a pandemic in accordance with the Australian Health Management Plan for Pandemic Influenza. It was the first comprehensive test held in Australia of elevated public health border measures at an international airport. It involved more than 1,000 participants from across government and non-government sectors in a series of events and simulations, closely observed by independent evaluators. The scenario included a simulated pandemic situation overseas and subsequent border control and other measures across Australia – ‘to contain or slow its spread for as long as possible to buy time for a vaccine to be developed to protect the Australian population’.^[8] All very prescient.

The Exercise was named after epidemiologist Dr John Howard Lidgett Cumpston CMG, the first Director-General of Public Health in the Commonwealth and former Director of Quarantine. (He was also my maternal grandfather). Under scrutiny were medical preparedness, border control policies, decision-making within and between governments, the deployment of the National Medical Stockpile, and public communications.^[9] It also exercised governance aspects of the National Action Plan for a Human Influenza Pandemic and state and territory plans. The exercise concluded that specific aspects of the plans needed updating, and recognised, somewhat prophetically, that ‘the capacity to sustain such a response over a prolonged period was not fully tested’.^[10] The report considered that Exercise Cumpston 06 provided ‘a valuable model for future exercises of similar scale’:

A key to the success of exercise planning, writing and conduct was the full and early involvement of specialist advisers, such as epidemiologists, relevant Commonwealth agencies and all the states and territories.^[11]

Recommendations included that decision-making structures and consultative processes needed to be streamlined; health communication systems needed to be further developed; clear and consistent public messaging needed to be prepared on things like social distancing; and further clarification of Commonwealth quarantine and state and territory public health and health emergency legislation was needed to ensure smooth operational interaction – including ‘detailed operational procedures for triggering and applying the relevant powers’.^[12]

The years following Exercise Cumpston saw the release of a series of plans to guide governments’ responses to serious outbreaks of infectious diseases. Communicable disease emergencies, including the 2009 ‘swine flu’ (H1N1) influenza pandemic, prompted formal reviews assessing how well the health sector had responded. In 2018, the Department of Health published an emergency response plan for nationally significant communicable disease incidents, outlining how agencies across all levels of governments should work together if a major communicable disease threat arose. ‘With all this activity’, wrote health policy writer Melissa Sweet in February 2020 when COVID-19 had not even been named yet, ‘it isn’t surprising that Australian governments were ready to swing into action when concerns began to emerge about the spread of a new pneumonia-causing coronavirus. They could draw on expertise, planning and processes developed over many years.’^[13]

On 18 March 2020, the Governor-General declared a ‘human bio-security emergency’ under the Biosecurity Act 2015 (Cth) on the advice of the Health Minister.^[14] The period was extended regularly after that date until 17 April 2022. The declaration enlivened the emergency powers of the Health Minister, who could then determine ‘any requirement’ that the Minister was satisfied was ‘necessary’, among other things to ‘prevent or control’ the entry, emergence, establishment or spread of the listed human disease.^[15]

The possibilities were vast.^[16]

States also had similar legislative frameworks – such as the Directions in Victoria under the Public Health and Wellbeing Act 2008 (Vic).^[17] Matters were handled along the lines of the division of powers between the Commonwealth and the States and Territories. Things like migration, the economy and pharmaceuticals sat with the Commonwealth; restriction of movement and social isolation rules affecting businesses, schools, public spaces and communities, sat with the States – although the lines of demarcation were not always clear. Areas of overlap became sites for ‘blame shifting’.^[18]

The responsibility for implementation was disbursed among other layers of government; and responsibility for enforcement fell in many cases to police officers, who were given discretionary powers to issue fines, arrest and charge people for breaching public health orders.

As an island nation, containment in the widest sense was and is necessarily the first option against the world; then containment of the spread of infection within – through quarantine, social distancing and personal hygiene – while vaccines were developed.

Australia’s overall pandemic responses may appear to be relatively effective compared to the rest of the world. Our total and comparative number of deaths has been relatively low, from a global perspective. Data from the John Hopkins University Coronavirus Resource Centre in March 2022 showed Australia as having had 5,691 deaths, with a case fatality rate of 0.1% and 22.44 deaths per 100,000 population. This contrasts starkly to the worst performing countries by each measure, namely the USA with 970,009 deaths, Yemen with a case fatality rate of 18.1%, and Peru with 651.15 deaths for 100,000 population.^[19] On global rankings from early 2022, calculated to include a variety of pandemic-related health, economic and social factors, Australia has consistently performed strongly. Australia ranked fifth on Bloomberg’s COVID Resilience Ranking,^[20] ninth on the COVID Performance Index compiled by the Lowy Institute,^[21] and fifth on the COVID Economic Recovery Index produced by the Horizon Group.^[22]

But Australians have also had to live with some of the most restrictive pandemic response measures in the world. ‘Containment’ involved significant incursions on people’s rights and freedoms, especially freedom of movement.^[23] International and internal borders were closed and restrictions were implemented for extended periods of time. This included the unprecedented step of travel caps, effectively preventing thousands of Australian citizens from re-entering Australia;^[24] and an outright ban on citizens returning from India (with penalties of 5 years imprisonment or a $66,000 fine) during the Delta outbreak in May 2021. The measures introduced were ‘previously inconceivable’;^[25] and the combined effect of the restrictions was to ‘reshape daily life in Australia as we knew it before March 2020’.^[26]

How does one assess these restrictions, in terms of democratic accountability – and through the lens of human rights – in responding to a public health emergency the scale of COVID-19?

The Lens of Human Rights

Australia is a party to seven core international treaties that enshrine the nation’s commitments to human rights as a nation.^[27] The right to life and the right to health are priorities under international human rights law – especially in response to pandemics.^[28]

The right to life has been described by the United Nations Human Rights Committee as ‘the supreme right from which no derogation is permitted’ – even in times of public emergencies.^[29] States parties also have the positive obligation to take appropriate measures to protect lives during a pandemic. The right to life trumps, one might say.

The right to health requires States parties to take necessary steps for ‘[t]he prevention, treatment and control of epidemic, endemic, occupational and other diseases’ and ‘[t]he creation of conditions which would assure to all medical service and medical attention in the event of sickness’.^[30] In the context of the pandemic, this includes the establishment of prevention and education programs to help prevent the spread of COVID-19, the creation of a system of urgent medical care to assist with the treatment of COVID-19 and efforts to control COVID-19, including ‘using and improving epidemiological surveillance and data collection on a disaggregated basis, the implementation or enhancement of immunization programmes and other strategies of infectious disease control’.^[31]

In protecting the right to life and the right to health, there were necessarily incursions on other rights. International human rights law provides the tools to assess such issues of intersections or limitations of human rights and freedoms in terms of proportionate responses.

Rights can be legitimately restricted in times of emergency and many rights contain express limitations within their terms.^[32] Any limitations on the International Covenant on Civil and Political Rights (ICCPR) must still meet certain core criteria: they must support a legitimate aim and are provided for by law, strictly necessary, proportionate, of limited duration, and subject to review against abusive applications.^[33] The burden of justifying any limitation rests upon the State seeking to impose the limitation.

Saying all of this in the abstract, in the generalised expression of international human rights standards, is one thing; applying those standards in the domestic, Australian, context in the context of a public health emergency is quite another.

While Australia has made promises to the world under these international treaties, the obligations of international law are not fully incorporated into domestic law. The rights that are protected are located in scattered pieces of legislation, the Constitution and the common law. It is incomplete and piecemeal. Specific Human Rights Acts have been passed in Victoria,^[34] the Australian Capital Territory^[35] and, most recently, Queensland.^[36] There is no overarching federal instrument, which means that a person’s legal access to rights protections is wholly contingent on where they live.

Emergency times may have required emergency measures, but what was experienced were the democratic challenges of emergency decision-making: enormous delegations of power which revealed significant gaps in the accountability of governments; and the challenge of human rights compliance.

At the federal level, the limitations of existing mechanisms were exposed.

The Role of Parliament

‘What is the role of Parliament?’ This was the question that opened the 2021 report of the Standing Committee for the Scrutiny of Delegated Legislation (SDL Committee) into its inquiry into the exemption of delegated legislation from parliamentary oversight. ‘The answer to this fundamental question’, they said, is to be found in s 1 of the Australian Constitution: the legislative power of the Commonwealth ‘shall be vested in the Federal Parliament’.^[37]

A foundational principle of the Australian democratic structure is the sovereignty of Parliament – that the Executive has no right to suspend, dispense with or ignore the legislation passed by Parliament, without Parliament’s consent. The courts also play a key role: ‘it remains an axiomatic feature of our legal system that courts will review the legality of executive action’.^[38]

Parliaments, nationwide, transferred extraordinarily wide powers to executive governments and agencies, with significant impacts on individual rights and freedoms.^[39] Many restrictions on rights and freedoms were introduced through the mechanism of delegated legislation; many were exempt from legislative oversight or review.^[40] Many measures were also implemented without sufficient transparency about government decision-making process, including regarding the evidence upon which decisions were based.^[41] They were often accompanied by increased police enforcement powers.

While the ‘modern reality is that Parliament must and should delegate many legislative functions to the executive branch’,^[42] Parliament still remains constitutionally responsible for lawmaking: the practice of delegation ‘does not absolve the Parliament of responsibility for laws so delegated’.^[43] A concern about how much was being delegated with exemption from disallowance, prompted the inquiry by the SDL Committee in 2020–21.

The Committee noted an increasing volume of delegated legislation over time: ‘from an average in the mid-1980s of around 850 disallowable instruments tabled each year, it currently sits around 1,500 each year’.^[44] There is a trend for increasing amounts of delegated legislation to be exempt from disallowance. In 2019, 20% of the 1,675 laws made by the Executive were exempt from disallowance.; in 2020 it was 17.4%; but since 2014 there had been a general upward trend.^[45]

Ordinarily the disallowance framework provides an opportunity for parliamentary consideration – and disallowance – of legislative instruments. While disallowance is not common, the mechanism serves a crucial function, as it is through this process that delegated legislation can be scrutinised on technical and policy grounds.^[46] When an instrument is ‘exempt’ from disallowance, this scrutiny does not occur; and without the ability to scrutinise, ‘it can lead to Parliament effectively abdicating its power by simply not knowing how that power is being exercised’.^[47]

Scrutiny is essential to democratic legitimacy of all measures – especially those made in situations of emergency.

Two federal scrutiny committees turned considerable attention to COVID-19 measures: the SDL Committee, the oldest of the scrutiny committees,^[48] from the traditional scrutiny perspective, including whether the instruments ‘unduly trespass on personal rights and liberties’,^[49] and the Parliamentary Joint Committee on Human Rights (PJCHR), from the perspective of human rights compliance.^[50]

Within the existing frameworks of parliamentary scrutiny, key issues were identified and action advocated. The current wholesale exemption of public health emergency orders from the scrutiny applicable to subordinate legislation was regarded simply as ‘unacceptable’.^[51]

The SDL Committee concluded that:

An exemption from disallowance means the Parliament, the institution charged with making laws, loses the chief mechanism it has to prevent delegated legislative power being exercised in a manner not foreseen or provided for in the primary legislation, or in a way that might otherwise be considered undesirable.^[52]

COVID-19 measures brought these issues to the forefront for public law scholars and the Committees. It brought focused attention on changes to the existing scrutiny processes and parliament’s understanding of them.

What difference would an embedded human rights framework have had? With, at its core, a federal Human Rights Act.

 Human Rights Act

The key value of a human rights framework is the ‘upstream’ focus on decision-making – to ensure that human rights are considered in the planning phase, encouraging greater due diligence, transparency and accountability. It requires decisions about prioritising resources and policy responses to be justified publicly with reference to human rights, so that the public can properly assess them. It ensures that the stringent effects of emergency measures are mitigated through the provision of support and the embedding of safeguards. It prevents emergency measures from becoming the ‘new normal’.

A human rights framework sets out a balancing process that takes into account the needs of every person in the community and prevents the most vulnerable from falling through the cracks. It prevents arbitrary decisions and blanket rules by requiring sufficient flexibility to respond to individual circumstances: allowing a person to cross a border to bury a family member; or an elderly person to receive a visitor. It provides a check on executive power by drawing lines that should not be crossed – such as locking vulnerable citizens out of their own country. It ensures that responses to emergencies are humane.

A Human Rights Act may not lead to perfect results, but it would help the making of better decisions. COVID-19 has highlighted the need for a shared set of rights and values to guide us through difficult times.

Human rights law provides a framework for making decisions in times of crisis. During the COVID-19 pandemic, some expressed sentiments that human rights were not relevant, or less relevant, to such emergencies.^[53] This is not the case – human rights law is designed to take into account emergency situations and allows for limitations and even the suspension of certain rights where this can be justified by the circumstances. Human rights are most important in times of crisis, where the usual rule of law mechanisms and political norms are secondary to responding efficiently and effectively to emergencies. Human rights not only provide an important check on executive power; they help make emergency decisions that are rational, balance multiple factors, minimise human cost and prioritise human life.

When applying a human rights approach to COVID-19 measures such as lockdowns, one can come to conclusions about appropriate courses of action that align with human rights. Each measure must be lawful and clearly communicated to the public. COVID-19 measures are in pursuit of public health measures and have a legitimate aim. Whether a measure is reasonable, necessary and proportionate depends on the circumstances, including the level of risk to health (which changes over time), the necessity of the measure to addressing the health risk, and the extent of the impact on other important rights. Restrictions on the right to protest may be justified, when the population is unvaccinated and COVID-19 is prevalent in the community, but may be less justifiable when there are high vaccination rates and precautionary measures are taken by the protest organisers to mitigate COVID-19 risks. The implementation must also be proportionate – excessive or criminal sanctions for peaceful protesting would be unnecessary to realising the goal of the restrictions to protecting health.

The human rights framework also requires safeguards such as time constraints and reviews on any steps taken to limit human rights. If the measures are no longer necessary, they should cease.

A Human Rights Act would also provide accountability, with people being able to make a complaint, based in law, with the possibility of remedies.

Australia’s COVID response was relatively effective in protecting rights to life and to health, compared to many other nations. There were key failures which resulted in human rights breaches and insufficient consideration for certain vulnerable and marginalised groups, throughout the COVID response. A domestic Human Rights Act would have provided law and guidance that may have improved Australia’s response in certain key respects.

Conclusion

Emergencies ‘require governments to govern differently’.^[54] What of appropriate scrutiny? The question of whether Australians have been exposed to potentially unnecessary or disproportionate restrictions of their human rights is an important one. It deserves to be given comprehensive consideration in the post-pandemic environment – to ensure that appropriate lessons are learned and that future emergency responses embed a strong and more effective human rights scrutiny process. While the suspension of reflection and review mechanisms may be necessary in a time of emergency, it is important to ensure that emergency decision-making itself does not permanently undermine the rule of law and core democratic structures.

The checks and balances that ordinarily exist are integral to democracy. Australians have been, and continue to be, exposed to potentially unnecessary restrictions of their rights and freedoms, because of the lack of transparency and accountability. The decisions may be justified, but how can one know, without appropriate democratic scrutiny and accountability?

The current system for protecting human rights lacks a sufficient level of proficiency, or fluency, to converse in human rights terms when discussing issues of major concern to the community.

The past two and a half years has brought this into sharp relief. People are talking about rights. People are demanding their rights. Governments are defending their incursions on people’s freedoms in terms of rights.

International human rights law provides the core criteria for assessing restrictions on rights – all of which should guide the accountability of public health measures in the name of the pandemic. Australians need to embed a human rights scrutiny process better into all emergency responses, to ensure that any intrusion on our rights is always fully justified, and the debate is had at the time the restrictions are considered – not afterwards.

Such scrutiny would aid in maintaining public trust and ensuring compliance with restrictions. It would also provide a safeguard that, when planning for recovery from this crisis, no one gets left behind. Embedding human rights thinking more broadly in decision-making, and the accountability measures that express it, will assist in ensuring the maintenance of trust in governments and parliaments, especially in times of emergency, a trust that has been the foundation of the democratic structure for hundreds of years.

There is a strong sense of rights and freedoms in Australia. There are also expectations of accountability – as seen for example in people invoking ‘their rights’ in response to some COVID-19 measures. The language of rights has been on many people’s lips since March 2020. It is also a language that inherently has existed in the Australian national character over time and in Australia’s common law history and institutions.

In the experiences of COVID-19, what was exposed was the potential for, and experience of, an imbalance in the separation of powers, and the absence of a commonly understood, let alone embedded, framework to help grapple with the challenges that confronted everyone.

The beauty of a Human Rights Act, and other measures that frontload rights-mindedness, is that they are expressed in the positive – and they are ahead of any dispute. They become the foundation of improving decision making so that disputes can be avoided.

A statute names them; it provides an obligation to consider them and a process by which to do it – together supporting a cultural shift towards rights-mindedness, becoming part of the national psyche, not just an afterthought.

Endnotes

^[1] Paula O’Brien and Eliza Waters, ‘COVID-19: Public Health Emergency Powers and Accountability Mechanisms in Australia’ (2021) 28 Journal of Law and Medicine 346, 359.

^[2] World Health Organization, ‘WHO Coronavirus (COVID-19) Dashboard | WHO Coronavirus (COVID-19) Dashboard With Vaccination Data’ <https://covid19.who.int/>.

[3] The opening lines of A Tale of Two Cities, set during the time of the French Revolution.

^[4] Janina Boughey, ‘Executive Accountability in Emergencies: Lessons from the COVID-19 Pandemic’, paper presented at the Samuel Griffith Society Conference 2022.

^[5] The virus earned its ‘Spanish’ adjective as the King of Spain was among one of its earliest victims. The most likely explanation is that ‘a milder form of influenza carried to Europe by American troops in April 1918 was transformed into the Pandemic type which, by October, spread throughout Europe and into Africa, Asia and the Americas; Australia remained free from infection until the following January’: Humphrey McQueen, ‘The “Spanish” Influenza Pandemic in Australia, 1912–19’ <https://labourhistorycanberra.org/2018/06/the-spanish-influenza-pandemic-in-australia-1912-19/>, originally published in Jill Roe (ed), Social Policy in Australia – Some Perspectives 1901–1975 (Cassell Australia, 1976).

^[6] See, eg, Humphrey McQueen, ‘The “Spanish” Influenza Pandemic in Australia, 1912–19’ <https://labourhistorycanberra.org/2018/06/the-spanish-influenza-pandemic-in-australia-1912-19/>, originally published in Jill Roe (ed), Social Policy in Australia – Some Perspectives 1901–1975 (Cassell Australia, 1976). Re the quarantine power of the Commonwealth, see John HL Cumpston, Influenza and Maritime Quarantine in Australia (Commonwealth of Australia Quarantine Services, Publication No 18, 1919).

^[7] For example, the account of the Argyllshire debacle in the Daily Telegraph, 10 February 1919: < https://trove.nla.gov.au/newspaper/article/239591510?searchTerm=argyllshire>.

^[8] Australian Government Department of Health and Ageing, Office of Health Protection, Exercise Cumpston 06 Report: National Pandemic Influenza Exercise (2007) 20.

^[9] Melissa Sweet, ‘Precautionary Principles: Can infectious disease outbreaks help strengthen Australia’s response to another health crisis?’ Inside Story (6 February 2020).

^[10] Australian Government Department of Health and Ageing, Office of Health Protection, Exercise Cumpston 06 Report: National Pandemic Influenza Exercise (2007) 1.

^[11] Australian Government Department of Health and Ageing, Office of Health Protection, Exercise Cumpston 06 Report: National Pandemic Influenza Exercise (2007) 2.

^[12] Australian Government Department of Health and Ageing, Office of Health Protection, Exercise Cumpston 06 Report: National Pandemic Influenza Exercise (2007) 3–4.

^[13] Melissa Sweet, ‘Precautionary Principles: Can infectious disease outbreaks help strengthen Australia’s response to another health crisis?’ Inside Story (6 February 2020).

^[14] Biosecurity Act 2015 (Cth) s 477(1).

^[15] Biosecurity Act 2015 (Cth) s 477(1)(a).

^[16] The Health Minister could determine matters such as requirements that apply to persons, goods or conveyances when entering or leaving specified places; requirements that restrict or prevent the movement of persons, goods or conveyances in or between specified places; requirements for specified places to be evacuated – and requirements for giving effect to this: Biosecurity Act 2015 (Cth) s 477(3).

^[17] See, eg, my consideration of aspects of these in Rosalind Croucher, ‘Lockdowns, Curfews and Human Rights: Unscrambling Hyperbole’ (2021) (2021) 28(3) Australian Journal of Administrative Law 137.

^[18] Janina Boughey, ‘Executive Power in Emergencies: Where Is the Accountability?’ (2020) 45(3) Alternative Law Journal 168, 169.

^[19] Johns Hopkins University of Medicine, ‘Mortality Analyses’, Coronavirus Resource Centre (Webpage, 18 March 2022) <https://coronavirus.jhu.edu/data/mortality>.

^[20] Bloomberg, ‘The Covid Resilience Ranking: The Best and Worst Places to be as the Omicron Threat Fades’ (24 February 2022) <https://www.bloomberg.com/graphics/covid-resilience-ranking>.

^[21] Lowy Institute, ‘Covid Performance Index: Deconstructing Pandemic Responses’ <https://interactives.lowyinstitute.org/features/covid-performance/>.

^[22] ‘Covid Economic Recovery Index’ < https://www.covidrecoveryindex.org/ranking>.

^[23] See, eg, the discussion in Kylie Evans and Nicholas Petrie, ‘COVID-19 and the Australian Human Rights Acts’ (2020) 45(3) Alternative Law Journal 175, 176–178. At the federal level, this has included changes to visa arrangements and restricting travel overseas. See, eg, Migration (LIN 20/122: COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class GG) visa) Instrument 2020 (Cth) and Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth). At a State and Territory level, delegated legislation has been used to implement measure including self-isolation orders, restrictions of visitors to aged care facilities and restrictions on the size and place of gatherings. See, eg, Public Health (COVID-19 Gatherings) Order (No 3) 2020 (NSW) and COVID-19 Emergency Response (Schedule 1) Regulations 2020 (SA). Other legislated restrictions have often been passed quickly with minimal parliamentary scrutiny and have included increased powers for police.

^[24] See, eg, Elias Visontay, ‘More than 45,000 Australians stranded overseas registered for government help’ The Guardian (Online, 21 September 2021).

^[25] Commonwealth of Australia, Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight, Final Report (16 March 2021), xv.

^[26] Paula O’Brien and Eliza Waters, ‘COVID-19: Public Health Emergency Powers and Accountability Mechanisms in Australia’ (2021) 28 Journal of Law and Medicine 346, 347.

^[27] The International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of All Forms of Racial Discrimination (CERD); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child (CRC); the Convention on the Rights of Persons with Disabilities (CRPD).

^[28] ICCPR art 6; ICESCR art 12. United Nations Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic, 30 April 2020, CCPR/C/128/2 [2]. See Sarah Joseph, ‘International Human Rights Law and the Response to the COVID-19 Pandemic’ (2020) 11 Journal of International Humanitarian Legal Studies 249, 250.

^[29] United Nations Human Rights Committee, General Comment No 36: Article 6: right to life, CCPR/C/GC/36 (3 September 2019) [2].

^[30] ICESCR arts 12(2)(c), 12(2)(d).

^[31] Office of the High Commissioner for Human Rights, General Comment No. 14: The right to the highest attainable standard of health (Art 12), UN Doc E/C.12/2000/4 (11 August 2000) [16].

^[32] ICCPR art 12(3); ICESCR art 4.

^[33] United Nations Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4, Annex (28 September 1984) [12]. These principles were formulated at a conference sponsored by non-governmental organisations in Siracusa, Italy, in 1984. The object of the conference was to achieve a consistent interpretation and application of the limitation and restriction clauses of the ICCPR.

^[34] Charter of Human Rights and Responsibilities Act 2006 (Vic).

^[35] Human Rights Act 2004 (ACT).

^[36] Human Rights Act 2019 (Qld).

^[37] Commonwealth of Australia, Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight, Final Report (16 March 2021) [1.1].

^[38] Janina Boughey and Lisa Burton Crawford, ‘Executive Power in an Age of Statutes’ in J Boughey and L Burton Crawford (eds), Interpreting Executive Power (Federation Press, 2020) 1, 2.

^[39] Sarah Moulds, ‘Scrutinising COVID-19 Laws: An Early Glimpse into the Scrutiny Work of Federal Parliamentary Committees’ (2020) 45(3) Alternative Law Journal 180, 180–181.

^[40] The existing framework for exemptions from disallowance is summarised in Commonwealth of Australia, Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight, Final Report (16 March 2021) ch 3.

^[41] Senate Select Committee on COVID-19, Final Report (April 2022) [5.15]. See also, Paul Karp, ‘Human rights commission says national cabinet should not be covered by secrecy laws’ The Guardian (Online) 17 September 2021 <https://www.theguardian.com/australia-news/2021/sep/17/human-rights-commission-says-national-cabinet-should-not-be-covered-by-secrecy-laws>.

^[42] Janina Boughey, ‘Executive Accountability in Emergencies: Lessons from the COVID-19 Pandemic’, paper presented at the Samuel Griffith Society Conference 2022, 2.

^[43] Commonwealth of Australia, Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight, Final Report (16 March 2021) xv.

^[44] Commonwealth of Australia, Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight, Final Report (16 March 2021), [1.28].

^[45] Commonwealth of Australia, Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight, Final Report (16 March 2021), [1.29].

^[46] Commonwealth of Australia, Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight, Final Report (16 March 2021) [1.23].

^[47] Commonwealth of Australia, Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight, Final Report (16 March 2021) [3.48]. See also [3.62].

^[48] The Committee was established in 1932: Parliament of Australia, Senate Standing Committee for the Scrutiny of Delegated Legislation <https://www.aph.gov.au/Parliamentary_Business/
Committees/Senate/Scrutiny_of_Delegated_Legislation>.

^[49] D Pearce and S Argument, Delegated Legislation in Australia (4th ed, 2012) 93. See discussion in Laura Grenfell, ‘An Australian spectrum of political rights scrutiny: “Continuing to lead by example?”’ (2015) 26 Public Law Review 19.

^[50] For a summary of the parliamentary scrutiny committees, see, eg Australian Law Reform Commission, Traditional Rights and Freedoms: Encroachments by Commonwealth Laws (Final Report no 129, 2015) ch 3.

^[51] Commonwealth of Australia, Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight, Final Report (16 March 2021) [7.91]. Guidance is also set out in [7.92]. See rec 8.

^[52] Commonwealth of Australia, Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight, Final Report (16 March 2021) [3.24].

^[53] See, eg, discussion in Sarah Joseph, ‘COVID-19, risk and rights: the “wicked” balancing act for governments’ The Conversation (Online) 16 September 2020 <https://theconversation.com/covid-19-risk-and-rights-the-wicked-balancing-act-for-governments-146014>.

^[54] Eric Windholz, ‘Governing in a pandemic: from parliamentary sovereignty to autocratic technocracy’ (2020) 8 (1–2) The Theory and Practice of Legislation 93.