The need to contain the spread of COVID-19 has led to a raft of emergency laws that have challenged us to deeply consider the appropriate balance between community and individual rights. When faced with these laws, it has been easy for people to resort to knee-jerk responses that either dismiss and minimise the concerns of individuals, or to characterise fairly benign measures as an unjustifiable breach of fundamental rights.
In order to explore whether there might be a more a principled approach to resolving these debates, let’s start by considering three quite different recent examples.
On Tuesday, NSW Police dispersed a Black Lives Matters (BLM) protest in Sydney and fined six of the organisers after they had been refused authorisation to gather in breach of the COVID-19 Health Directions.
Last week in Victoria, the Andrews government mandated face masks for all people (over 12 years of age) in the Melbourne and Mitchell Shire when they were out of their homes.
Finally, on Saturday 4 July, nine public housing towers in Melbourne were placed on ‘hard lockdown’ without notice, with hundreds of police rostered on to prevent residents from leaving for any reason, including to purchase food, medicine or other necessities of life.
In all three of these examples, the need to protect public health in the midst of a global pandemic was used to justify the actions taken. Nonetheless, all of these actions were controversial, and there has been extensive debate over their legitimacy. In this context, we need to consider the appropriate role of human rights in the context of a state of emergency, and how best to navigate the complex issues being raised.
'Nonetheless, even in an emergency context, if a measure does engage and limit human rights, there is a clear test that can be applied when considering whether it might be justifiable.'
First, it’s important to acknowledge that not only are few human rights absolute, but a state of emergency — which we are arguably facing — is broadly accepted to be a legitimate reason to limit many human rights. Nonetheless, even in an emergency context, if a measure does engage and limit human rights, there is a clear test that can be applied when considering whether it might be justifiable.
The first question to ask is whether the measure pursues a ‘legitimate objective’. (What is it trying to achieve, and is this a reasonable and justifiable end goal for a democratic government?)
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