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12. Human Rights / Civil Liberties
A. Overview
Primary and delegated legislation was made quickly and decisively, in response to a clear and present health emergency. It was relatively effective in meeting the widespread threat that COVID-19 might have posed to the lives and health of many more Australians, as judged by reference to international examples.
Nevertheless, legislation made in those circumstances brings with it the danger of an unusual level of justification for intrusion on human rights, and removal of their basic protections. See, for example, R v UD (No 2) [2020] ACTSC 90, [28]-[29].
B. Legislation
Commonwealth:
Made under the Biosecurity Act 2015 (Cth):
Privacy Act 1988 (Cth) amended by the Privacy Amendment (Public Health Contact Information) Act 2020 (Cth): elevates the provisions of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 into primary legislation and introduces additional measures to strengthen privacy protections. The purpose is to assist in preventing and controlling the entry, emergence, establishment or spread of the coronavirus known as COVID-19 into Australia or any part of Australia, by amending the Privacy Act 1988 to provide stronger privacy protections for users of the Commonwealth’s COVIDSafe app and data collected through the app (COVID app data) than the protections that would otherwise apply under Australian law (see Explanatory Memorandum).
Made under the Privacy Act:
Western Australia:
Made under the Surveillance Devices Act 1998 (WA):
Prisons Act 1981 (WA) amended by the Prisons Amendment Act 2020 (WA): the Amendment Act introduces a new s 46A regarding "Inspection of medical records and mandatory taking of blood or other body sample where prison officer may have been exposed to infectious disease" and a new s 46B providing for review of compliance with s 46A.
Australian Capital Territory:
Human Rights Commission Act 2005 (ACT) amended by the COVID-19 Emergency Response Legislation Amendment Act 2020 (ACT).
C. Case law
In Rowson v Department of Justice and Community Safety [2020] VSC 236, discussed in detail in the Obligations section of this Chapter, the plaintiff prisoner, Mark Rowson, alleged that officers of the State of Victoria threatened to act unlawfully by contravening three of the human rights protected under the Charter of Human Rights and Responsibilities Act 2006 (Vic): the right to equality (because he was at greater risk from COVID-19 of serious injury or death, by reason of his sex, age and physical disabilities), the right to life (because the State owed a positive duty to protect the life of prisoners from known threats) and the right of persons deprived of liberty to be treated humanely (at [77]-[81]). In granting an interlocutory injunction, the Court relied primarily on Mr Rowson’s pleaded case in tort (at [81]), and consideration of his human rights arguments awaits the substantive trial of the proceeding.
Several cases in the ACT Supreme Court have considered the potential infringement on the right to a fair trial of the exercise by that Court of a statutory power to order a criminal trial be heard by a judge alone, against the wishes of the accused: see the Juries and Trial by Judge Alone (Criminal Procedure) in Chapter 4.
Further, complex questions about "[c]ompeting public interests of great importance" may arise in the context of protests proposed to be conducted while "social distancing" restrictions remain in force: see, e.g., Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109, [7], although the Court's decision in that case did not turn on resolving the competition between such public interests.
D. Further resources
A. Overview
Primary and delegated legislation was made quickly and decisively, in response to a clear and present health emergency. It was relatively effective in meeting the widespread threat that COVID-19 might have posed to the lives and health of many more Australians, as judged by reference to international examples.
Nevertheless, legislation made in those circumstances brings with it the danger of an unusual level of justification for intrusion on human rights, and removal of their basic protections. See, for example, R v UD (No 2) [2020] ACTSC 90, [28]-[29].
B. Legislation
Commonwealth:
Made under the Biosecurity Act 2015 (Cth):
- Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020: provides privacy protections for data collected through a contact tracing app, providing that a person must not collect, use, disclose or otherwise deal with the data unless one of the exemptions listed in the instrument apply.
- Repealed by the Privacy Amendment (Public Health Contact Information) Act 2020 (Cth) (see below).
Privacy Act 1988 (Cth) amended by the Privacy Amendment (Public Health Contact Information) Act 2020 (Cth): elevates the provisions of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 into primary legislation and introduces additional measures to strengthen privacy protections. The purpose is to assist in preventing and controlling the entry, emergence, establishment or spread of the coronavirus known as COVID-19 into Australia or any part of Australia, by amending the Privacy Act 1988 to provide stronger privacy protections for users of the Commonwealth’s COVIDSafe app and data collected through the app (COVID app data) than the protections that would otherwise apply under Australian law (see Explanatory Memorandum).
Made under the Privacy Act:
- Privacy Amendment (Public Health Contact Information) (Data Store Administrator) Determination 2020: makes the Digital Transformation Agency the data store administrator for the purposes of all relevant provisions under Part VIIIA of the Privacy Act 1988.
Western Australia:
Made under the Surveillance Devices Act 1998 (WA):
- Surveillance Devices Regulations 1999 amended by the Surveillance Devices Amendment Regulations 2020
Prisons Act 1981 (WA) amended by the Prisons Amendment Act 2020 (WA): the Amendment Act introduces a new s 46A regarding "Inspection of medical records and mandatory taking of blood or other body sample where prison officer may have been exposed to infectious disease" and a new s 46B providing for review of compliance with s 46A.
Australian Capital Territory:
Human Rights Commission Act 2005 (ACT) amended by the COVID-19 Emergency Response Legislation Amendment Act 2020 (ACT).
C. Case law
In Rowson v Department of Justice and Community Safety [2020] VSC 236, discussed in detail in the Obligations section of this Chapter, the plaintiff prisoner, Mark Rowson, alleged that officers of the State of Victoria threatened to act unlawfully by contravening three of the human rights protected under the Charter of Human Rights and Responsibilities Act 2006 (Vic): the right to equality (because he was at greater risk from COVID-19 of serious injury or death, by reason of his sex, age and physical disabilities), the right to life (because the State owed a positive duty to protect the life of prisoners from known threats) and the right of persons deprived of liberty to be treated humanely (at [77]-[81]). In granting an interlocutory injunction, the Court relied primarily on Mr Rowson’s pleaded case in tort (at [81]), and consideration of his human rights arguments awaits the substantive trial of the proceeding.
Several cases in the ACT Supreme Court have considered the potential infringement on the right to a fair trial of the exercise by that Court of a statutory power to order a criminal trial be heard by a judge alone, against the wishes of the accused: see the Juries and Trial by Judge Alone (Criminal Procedure) in Chapter 4.
Further, complex questions about "[c]ompeting public interests of great importance" may arise in the context of protests proposed to be conducted while "social distancing" restrictions remain in force: see, e.g., Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109, [7], although the Court's decision in that case did not turn on resolving the competition between such public interests.
D. Further resources
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