Updated: Apr 7, 2021
'In a just society, human rights are not a convention to be ignored during crisis' – Victorian Ombudsman, Deborah Glass
Victorians will remember July 2020 as the beginning of the second wave of COVID-19, which triggered the strictest and longest lockdown in Australia. However, days before the state-wide lockdown began, the Premier of Victoria announced restrictions on 3,000 residents of public housing towers in North Melbourne and Flemington. The 'hard lockdown' took effect with such immediacy, that many residents were not aware of the restrictions until told by police outside their building.
On 17 December 2020, the Victorian Ombudsman handed down a report declaring the immediacy of the towers' lockdown to be a breach of human rights. While the Ombudsman is not a court, and therefore does not determine the lawfulness of the decision, this report is a compelling analysis of the use of emergency powers and their impact on human rights.
Human rights in Victoria
The Victorian Charter of Human Rights and Responsibilities was passed to protect human rights in three facets of the law: creation, interpretation, and application by public authorities. In Parliament, the Charter requires that a statement of compatibility be prepared and presented before the second reading speech. This provides an opportunity for the Scrutiny of Acts and Regulations Committee to report on such compatibility. The Charter acknowledges that there are situations in which human rights may be limited if they are 'demonstrably justified in a free and democratic society based on human dignity, equality and freedom'. It also allows Parliament to override the application of the Charter in 'exceptional circumstances'.
Human rights and COVID-19
In situations involving a serious risk to public health, the Chief Health Officer has the power to declare a state of emergency after consulting the Emergency Management Commissioner, under the Public Health and Wellbeing Act. A state of emergency was first announced on 16 March 2020 by the then Minister of Health, Jenny Mikakos, thereby enlivening powers to pass laws circumventing regular parliamentary processes. The state of emergency was extended throughout most of 2020, as the government saw necessary, to give them the power to make directions. While this process is important in responding to the threat of the fast-moving virus, it circumvents parliamentary and public scrutiny, potentially eroding the protection of human rights.
However, these laws are not passed without limitations. If COVID-19 restrictions interfere with human rights, it must be explicitly disclosed with reasons. It is for the Chief Health Officer to consider the human rights implications of any given public health direction.
A key concern in the Ombudsman's report was that the Deputy Chief Health Officer, who was responsible for checking the statement of compatibility at the time, only had 15 minutes before the press conference announcement to read and sign the documents. The Ombudsman queries whether the Deputy Chief Health Officer 'was permitted to bring an independent mind to the issue' at all. When public authorities do not have time (or are not given the time) to exercise independent thought, the checks and balance on executive power deteriorate. The Ombudsman stated that the decision to lockdown the towers was not a contravention itself, but the immediacy of the lockdown and strictness of the rules breached human rights.
Enforcing human rights
Although the Ombudsman's report declares a human rights breach and stipulates recommendations to the Victorian Government and the DHHS, these recommendations are not legally enforceable. Thus, holding the government accountable for contravening human rights during times of crisis is limited.
There have been reports of potential legal action on behalf of the residents against the government. However, noting Loielo v Giles, the Supreme Court's willingness to deem government health directions unlawful depends on whether human rights interference is proportionate to the public health risk. In Loielo, the court found that the broader curfew direction was compatible with Charter rights, bestowing the government with extensive powers in a state of emergency. Who, then, acts as a check and balance on government power under emergency legislation?
It seems that public health officials' review of the directions is determinative. Hence, one of the Ombudsman's recommendations is for more information on the process for making complaints concerning the exercise of emergency powers during the COVID-19 pandemic to be published by the Department of Health and Human Services.
'We may be tempted, during a crisis, to view human rights as expendable in the pursuit of saving human lives. This thinking can lead to dangerous territory. It is not unlawful to curtail fundamental rights and freedoms when there are compelling reasons for doing so; human rights are inherently and inseparably a consideration of human lives.'
You may read the full 'Investigation into the detention and treatment of public housing residents arising from a COVID-19 'hard lockdown' in July 2020' here.
You can also find a list of all the COVID-19 related laws passed by the Victorian Parliament here.
 Charter of Human Rights and Responsibilities 2006 (Vic) (‘The Charter’) s 1(2).
 Ibid ss 28, 30.
 Ibid s 1(2)(d).
 Ibid s 7(2).
 Ibid s 1(3).
 Public Health and Wellbeing Act 2008 (Vic) s 198(7)(c).
 Victorian Ombudsman, Investigation into the detention and treatment of housing residents arising from a COVID-19 ‘hard lockdown’ in July 2020 (December 2020) 18 .
 Rachel Eddie and Chloe Booker, “Haunted’ tower residents want to know why government won’t say sorry’, The Age (online, 17 December 2020) <https://www.theage.com.au/national/victoria/melbourne-s-public-housing-lockdown-breached-human-rights-ombudsman-20201217-p56o71.html>.
 Loielo v Giles  VSC 619.
 Victorian Ombudsman (n 7) 181.
 Ibid 5.
Image: Getty Images
Monique Walker is completing her final year of a Bachelor of Arts and Law. Having completed a major in Psychology, Monique is interested in the interaction between public policy and behaviour change. She enjoys engaging with and writing about issues of human rights and sustainable development.