07 July 2022

AUTHOR: CANDY GIBSON

Australia is the only country in the western world without a Bill of Rights. Proponents argue that’s because we haven’t had a nation defining moment. Could the COVID-19 pandemic be the trigger?

It’s the ultimate human right: to die with dignity, surrounded by loved ones.

Until three years ago, it was hard to believe this right could be denied. The pandemic has changed all that.

Images of terminally ill COVID-19 patients, alone in their hospital rooms, or surrounded by faceless strangers in surgical masks and shields, don’t seem as shocking now.

Heartbreaking stories about children and partners being kept from the bedside of a dying spouse or parent, don’t attract the headlines they once did.

Governments have strenuously defended strict border closures, extended lockdowns, aged care home and hospital bans that have impacted thousands of Australian families since 2020.

There is no doubt that, to protect the life and health of citizens, sacrifices are required, some of them deeply unpopular. However, has a line been crossed in Australia? And not just an ethical or compassionate one. Many are asking whether fundamental human rights have been breached in this health crisis and, if so, how Australia can ensure it doesn’t repeat the same mistakes when the next pandemic hits.

Dr Sarah Moulds

The claimed violations include restricting freedom of movement, detaining people without charge, denying children face-to-face education, breaches of equality, privacy, and protecting the most vulnerable. All have been contravened in this pandemic, says UniSA senior law lecturer Dr Sarah Moulds.

“The fact that Australia is the only western democracy in the world not guided by a national Human Rights Charter has fuelled the debate, but it’s more complicated than that,” Dr Moulds says.

“Because Australia is a federation, some services are overseen by the states (including schools, hospitals, transport and domestic borders) and others by the Federal Government (aged care, social services and international travel, for example).

“Even within the states, there is no obligation to adopt common ground, which is why we have so many conflicting and confusing rules at play in this pandemic.”

Australia does have a Human Rights Commission, established in 1986, but its powers are limited, restricted to complaints about discrimination covered under specific acts, such as sexual or racial discrimination. It can’t make a ruling on freedom of movement, or the right to die with dignity, for example.

Its independence is relative, too. Funded and overseen by Federal Government-appointed commissioners, there is no obligation to observe international human rights obligations.

Dr Moulds says the decision to transfer much of the decision-making to chief health officers and police commissioners in each state and territory during the pandemic has been practical to a point, but has come at a price.

“The legal framework used to facilitate that – the Emergency Management Act – was designed for bushfires and floods. There is no doubt that our senior police and health officers are very experienced and have tried to make decisions in the best interests of their constituents, but this Act was designed for short-term crises.

“We elect our parliamentarians to act on our behalf, and these long-term decisions, which have huge impacts for the community, should be their responsibility, not a police commissioner’s, whose power has been extended 24 times into the third year of a pandemic.”

The people who have paid a heavy price are minority groups who rely on their parliamentarians to be their voice, Dr Moulds says.

“People with disabilities, special needs, retail workers and Aboriginal Australians. They need representation, and the further we get into this pandemic, the more voices we miss when we limit the decisions to a very few, instead of our elected representatives.”

Without the added safeguard of a Human Rights Charter and a clear democratic outlet, there is a danger that community frustration spills over, witnessed in violent street protests in Melbourne, a city that endured the longest lockdowns.

Many around the world looked on in disbelief when Australia slammed its borders shut to 40,000 citizens stranded overseas, missing births, funerals, losing jobs and even dying from COVID.

The hermetically-sealed border was widely condemned overseas – and with justification, says Dr Moulds.

“Australia’s response has been way out of proportion and lacking objectivity. Preventing citizens from returning home – in many cases to provide comfort to dying relatives – could not be challenged legally because of the power invested in a few executive officers instead of being debated in parliament.

“Human rights are not simple, and parliament doesn’t always get it right, but it’s unwise to restrict power to the executive level in a long-term crisis. We need multiple voices making decisions for all sectors of society. It’s called a democracy.”

Dr Sarah Hattam

UniSA sociologist Dr Sarah Hattam points to Australia’s socialist roots as one of the key reasons why residents accepted – indeed supported – harsh border closures and other restrictions with minimal protests.

“Unlike the United States, which is strong on individual rights, Australia has always adopted a collective, ‘fair go’ mentality in line with its socialist origins. I think that’s also why we haven’t had a stronger push from mainstream Australia about a charter of rights focusing on the individual.”

Dr Hattam, a senior education lecturer at UniSA, has a doctorate in the history of the human rights movement in Australia.

She lists several potential reasons for the absence of a federal charter, including the oft-cited argument that Australia’s existing constitutional laws already do the job.

“The clash between federal and state laws is also a major barrier, as is the tension between community and individual rights, where our definition of human rights is not consistent.”

Lastly, some people perceive that aligning Australia with the international laws of the United Nations is a threat to Australia’s sovereignty.

Dr Hattam is pessimistic about the likelihood of a Human Rights Charter in the short term but says there are opportunities to strengthen the existing commission.

Ensuring its independence from government is a start. This necessitates a consistent level of funding, whoever is in power, and the appointment of commissioners made by an external body. Also giving commissioners the freedom to report directly to the United Nations rather than through a ministerial office, as currently happens.

“We also need to clarify what we mean by rights. There has been a hyper focus on individual rights in this pandemic but that can have tragic consequences for the community at large.

“Similarly, if we veer too far the other way, fears of communism are raised. We need to find a middle ground that ensures the welfare of all people.”

In mid-2020, the Law Council of Australia launched its own inquiry into the Federal Government’s response to the pandemic, concerned about how the Government’s actions might impact vulnerable people.

The JobKeeper scheme, for instance – created in haste – resulted in unfair outcomes for both employees and employers, leading to overpayments of $13 billion to some (already highly profitable) companies, with no imperative to repay, while short-term casual employees, migrant workers and international students were deemed ineligible.

The council raised these concerns, along with the possibility of a COVID-19 outbreak within Australia’s high-risk immigration detention facilities. It encouraged the Federal Government to follow the UK’s lead and release people held in immigration centres who did not pose a genuine danger to public safety or health. The request fell on deaf ears.

Temporary migrants who could not support themselves were told to leave Australia. For some it wasn’t possible, putting them at risk of destitution, homelessness and labour exploitation. This is despite international treaties, which give temporary migrants the right to work in favourable conditions, free of modern slavery.

The council expressed a very real fear that the COVID-19 pandemic could be a new driver of modern slavery, something Australia has worked hard to stamp out.

“The virus exposes vulnerable people to greater risk,” the council found in its inquiry. “The pandemic has pushed greater numbers of workers into exploitative situations, both globally and domestically, with government restrictions leading to millions of job losses.”

Education was another focus of the inquiry, particularly the detrimental impact of the loss of face-to-face learning for students in low socio-economic households. The digital divide and lack of online resources in these homes means students are less likely to complete a successful education and are at increased risk of entering the criminal justice system.

At the other end of the spectrum, the lack of oversight of aged care homes during the pandemic has put society’s most vulnerable at risk. While the decision to lock down aged care homes may have been done to protect residents’ health, it has had unintended consequences, the Law Council states.

Regular inspections of homes to ensure their compliance went by the wayside, along with the informal oversight by family and friends. Denying elderly people visits from loved ones has also triggered widespread stress, loneliness and mental health issues among residents, hastening their demise in some cases. 

In its summation, the Law Council strongly encouraged Parliament to consider the role that a Human Rights Charter could play in future national crises, including pandemics.

“A Charter could provide an important tool by setting out a framework under which human rights must be protected, respected and fulfilled in a crisis. It would ensure that these obligations are embedded into legislative processes from the outset. It would also provide an established framework for resolving tensions when different rights conflict and difficult policy decisions must be taken.”

Juliette McIntyre

In the absence of a federal charter, some states such as the ACT, Queensland and Victoria have established their own Bill of Rights, and it’s likely that others will follow suit, says UniSA law lecturer Juliette McIntyre.

“When it comes to human rights, it’s a mixed bag in Australia,” McIntyre says. “The [previous] Federal Government has ignored its international obligations in a number of areas – such as its treatment of refugees and Aboriginal rights – but has quite clear anti-discrimination laws. Australia was also one of the first countries to refer the situation in Ukraine to the International Criminal Court.

“However, I doubt we will see a constitutionally-embedded charter in my lifetime.”

A survey asking candidates in the recent SA election about their views on adopting a Human Rights Act in South Australia also elicited a mixed response. The Greens favoured it, Labor wanted more discussion and the Liberal Party agreed to “consider it”. There was no consistency across independent candidates.

The consensus among UniSA academics is that a big, nation-defining moment is needed as a catalyst.

“With New Zealand and Canada, it was a treaty with Indigenous peoples; with the UK it was their relationship with the European Union; with other countries it was a civil war,” Dr Moulds says.

Perhaps a pandemic will be the defining moment for Australia.

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Bills of Rights, worldwide

The foundation of legal charters goes back to the Middle Ages, the most notable being the Magna Carta in 1215, the first written Constitution in European history which enshrined that everybody, including King John of England and his government, was subject to the rule of law. It also guaranteed certain freedoms and rights for ordinary citizens.

Over the past 800 years, other countries have followed suit, establishing their own Bills of Rights:

Flag pole with flags of countries have established their own Bills of Rights

Source: wikipedia.org/wiki/Bill_of_rights