Hansard debates

Mr PAKULA (Keysborough—Minister for Industry Support and Recovery, Minister for Trade, Minister for Business Precincts, Minister for Tourism, Sport and Major Events, Minister for Racing, Minister for the Coordination of Jobs, Precincts and Regions: COVID-19) (10:33): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Bill 2020.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Bill 2020 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The Bill amends the Public Health and Wellbeing Act 2008 (the Act) to:

lengthen the total period for which a state of emergency may continue in force in respect of the COVID-19 pandemic (from 6 months to 12 months); and

alter the circumstances in which certain powers may be exercised by authorised officers; and

clarify the power of the Chief Health Officer (the CHO) in respect of directions; and

clarify the application of the definition of ‘serious risk to public health’ for purposes relating to emergency declarations and the exercise of certain powers; and

enhance reporting requirements when a state of emergency declaration in respect of the COVID-19 pandemic is extended beyond 6 months.

Human rights issues

Although none of the amendments in the Bill directly interfere with human rights protected by the Charter, they do allow for the exercise of significant powers which may do so. In my view, and in the present circumstances of the COVID-19 pandemic, this is sufficient to warrant discussion of those rights in this Statement of Compatibility.

First, the Bill amends section 198(7)(c) of the Act to lengthen the total period for which a state of emergency declaration may continue in force with respect to the COVID-19 pandemic from 6 months to 12 months (the total period otherwise remains 6 months). The making or extending of a declaration of a state of emergency does not limit the Charter rights of any person; however, it means that authorised officers may be authorised to exercise extensive powers under section 200 of the Act in ways which may limit various Charter rights.

Second, the Bill alters the circumstances in which certain powers may be exercised by authorised officers. The Bill inserts the word ‘reasonably’ into section 199(1)(b) of the Act. Once the Act is amended, the CHO will be able to authorise authorised officers to exercise any of the public health risk powers and emergency powers if the CHO believes that it is reasonably necessary to grant the authorisation to eliminate or reduce a serious risk to public health.

Third, the Bill clarifies the definition of ‘serious risk to public health’, which is relevant to when a declaration of a state of emergency can be made and when certain powers may be exercised. Specifically, clause 3 of the Bill introduces new section 3(4) of the Act to clarify that an infectious disease (including COVID-19) may pose a ‘material risk of substantial injury or prejudice to health of human beings’ (being part of the definition of ‘serious risk to public health’) even where the rate of community transmission of the infectious disease in Victoria is low or there have been no cases of the infectious disease in Victoria for a period of time.

The second and third amendments alter the threshold requirements for declaring a state of emergency or authorising the exercise of the public health risk powers or emergency powers. As with the making or extending of a declaration of a state of emergency, these amendments do not limit the Charter rights of any person; however, they will allow the use of extensive powers under sections 190 and 200 of the Act, the exercise of which may limit Charter rights.

Finally, the Bill enhances the reporting requirements associated with extending a state of emergency declaration in respect of the COVID-19 pandemic beyond 6 months. Under new section 198(8A) of the Act, the Minister must report on the reasons for the extension and the relevant powers exercised, and provide a copy of the advice of the CHO in respect of the extension. The report must be laid before Parliament (if it is sitting at the relevant time) or provided to the Clerk of each House of Parliament (to be provided to each member and then laid before Parliament when it next sits). These amendments increase transparency with respect to extending a state of emergency and are therefore rights promoting.

I note that the lengthening of the total period for which a state of emergency declaration may continue in force only applies in the context of the COVID-19 pandemic and will not have any broader application.

Although it is not possible to foresee all the possible uses of the powers under a declaration, in relation to the current COVID-19 pandemic, the powers have been used to, for example:

require Victorians to ‘stay at home’ unless they have a permitted reason for leaving their home;

impose time and distance limits on Victorians leaving their home, and require the wearing of ‘face coverings’;

prevent certain public gatherings;

prevent participation in certain recreational activities or use of certain public facilities;

close certain businesses and prevent other businesses from operating in certain ways;

require businesses and other workplaces to comply with various cleaning, signage, record-keeping and other requirements;

implement ‘permit schemes’ in order for people to attend workplaces and access childcare;

require people who have been diagnosed with the virus, or have come into ‘close contact’ with such a person, to self-isolate or self-quarantine;

require people who returning from overseas to be temporarily detained in a quarantine facility;

require people in high risk premises to be temporarily detained in those premises or a quarantine facility; and

place restrictions on the circumstances in which people can visit hospitals and other types of care facilities.

The full scope of the rights that will be engaged by the exercise of the powers can only be determined when it is known exactly how the powers will be used and implemented (at which time the decision makers will be able to give proper consideration to relevant rights in light of the precise ways in which they are limited). However, the use of the powers in the manner described above engages a number of rights. The nature and scope of each of those rights is considered below, along with an example of how the use of the powers could engage those rights.

Rights to life and health

First, it is important to recognise that the amendments and the powers they ‘trigger’ promote the right to life and health. Section 9 of the Charter provides that every person has the right to life and has the right not to be arbitrarily deprived of life. In the present circumstances, because the COVID-19 virus is life threatening, the Bill furthers this right, particularly in relation to vulnerable members of society who are at particular risk from a broad and unrestricted spread of COVID-19, by lengthening the total period for which a state of emergency declaration may continue in force from 6 months to 12 months. A state of emergency was first declared in Victoria on 16 March 2020. Under the Act, unamended, it is only permitted to continue in force until 16 September 2020. However, the virus continues to circulate in the community at concerning levels, with large parts of Victoria currently under ‘Stage 4’ restrictions due to a ‘second wave’ of transmission. Community transmission, and resulting mortality rates, would have continued to rise without the implementation of these restrictions, which are empowered by the state of emergency under the Act. The six-month limit on state of emergency extensions will very soon expire; accordingly, lengthening this total time limit to 12 months is considered necessary.

Right to equality

Section 8(3) of the Charter provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect. ‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 (EO Act) on the basis of an attribute in s 6 of that Act, which includes age, race, sex, disability and parental status amongst many others.

The use of the powers may potentially amount to either direct or indirect discrimination under the EO Act because of the differential effect that their use may have on certain groups of people. Indirect discrimination occurs where there is a requirement, condition or practice imposed that is the same for everyone but disadvantages a person, or is likely to disadvantage a person, because they have one or more of the protected attributes, and the requirement, condition or practice is not reasonable. Direct discrimination occurs where a person treats a person with an attribute unfavourably because of that attribute. Any use or exercise of powers that may give rise to direct or indirect discrimination will need to be reasonable and proportionate in all the circumstances in order to be compatible with the right to equality.

Protection from medical treatment without consent

Section 10(c) of the Charter provides that a person must not be subjected to medical treatment without consent. The Charter does not define ‘medical treatment’; however, it may encompass compulsory medical testing. The powers could be used to require people to undergo medical testing for an infectious disease (including but not limited to COVID-19), if powers in addition to the examination and testing order powers in section 113 of the Act are required. The Act clearly envisages that there will be circumstances in which it will be reasonably necessary to require a person to undergo medical testing in order to ascertain whether a person has an infectious disease. Provided such testing is reasonable and proportionate in all the circumstances, it will be compatible with the right to protection against medical treatment without consent.

Freedom of movement

The right to freedom of movement is contained in section 12 of the Charter and applies generally to a person’s movement within Victoria. It applies to persons lawfully within Victoria and is made up of the following components: the right to move freely within Victoria, the right to enter and leave Victoria, and the right to choose where to live. The right has been described as providing protection from unnecessary restrictions upon a person’s freedom of movement. It extends, generally, to movement without impediment throughout the State and a right of access to places and services used by members of the public, subject to compliance with regulations legitimately made in the public interest.

Relevantly, the right to freedom of movement will be engaged where a person is: required to move to, or from, a particular place or is prevented from doing this; subject to strict surveillance or reporting obligations relating to moving; or directed or ordered where to live. Many of the ways that the powers have been, and are likely to be, used will limit people’s freedom to move about, both indoors and outdoors. Any such limits will need to be reasonable and proportionate in all the circumstances in order to be compatible with the right to freedom of movement.

Rights to privacy, family and home

Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. Section 13(a) contains internal qualifications; namely, interferences with privacy only limit the right if they are unlawful or arbitrary. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

‘Privacy’ is a right of considerable amplitude. The fundamental values which the right to privacy expresses are the physical and psychological integrity, individual and social identity, and autonomy and inherent dignity, of the person. It protects the individual’s interest in the freedom of their personal and social sphere. Relevantly, this encompasses their right to establish and develop meaningful social relations. The right to privacy may also potentially incorporate a right to work of some kind and in some circumstances.

The ‘family’ aspect of s 13(a) is related to s 17(1) of the Charter, which states that families are entitled to protection by society and the State. However, whilst the two rights overlap, they are not co-extensive. Section 13(a) is a negative obligation that only prohibits unlawful or arbitrary interferences with family; whereas s 17(1) is a positive obligation on society and the State.

The ‘home’ aspect of s 13(a) refers to a person’s place of residence, regardless of whether they have a legal interest in that residence. What constitutes an interference with this aspect of the right to privacy has been approached in a practical manner and may cover actions that prevent a person from continuing to live in their home, as well interferences with the home itself.

All three aspects of this right may potentially be limited by the directions that could be made in reliance on the emergency powers, which could affect personal autonomy and private relationships, require the disclosure of private information, affect the ability of families to gather with members who are quarantined due to diagnosis with an infectious disease (including COVID-19), and the ability of people to reside in their own homes if they are quarantined at another location. Any such limits will need to be reasonable and proportionate in all the circumstances in order to be compatible with the rights to privacy, family and home.

Freedom of religion

Section 14 of the Charter provides that every person has the right to freedom of thought, conscience, religion and belief, including the freedom to demonstrate one’s religion or belief individually or as part of a community, whether in public or private, through worship, observance, practice and teaching. A person must not be restrained or coerced in a way that limits their freedom to have a belief. The freedom to hold a belief is absolute, however the other aspects of the right are not.

If powers are used, for example, to limit the size of gatherings and the use of places of worship, they may limit the freedom to demonstrate religion or belief as part of a community. Any such restrictions will need to be reasonable and proportionate in all the circumstances in order to be compatible with the right to freedom of religion.

Freedom of expression

The right to freedom of expression in s 15(2) of the Charter extends to the freedom to seek, receive and impart information and ideas of all kinds, including orally, in writing, in print, by way of art or in another medium. The right contains an internal limitation in s 15(3)(b), which permits lawful restrictions that are reasonably necessary for the protection of public health, including to deal with a serious threat to the health of the population or to prevent widespread disease. The internal limitation may limit the scope of the right or it may indicate the kinds of limits that will be considered reasonable under s 7(2).

The right may be limited by requiring people to provide information (compelled expression), such as disclosing an infectious disease diagnosis or by preventing large gatherings in which expression occurs (such as political or artistic expression). Any such restrictions will need to be reasonable and proportionate in all the circumstances in order to be compatible with the right to freedom of expression.

Freedom of peaceful assembly and association

Section 16(1) of the Charter provides that every person has the right to peaceful assembly. This provision reflects the right of persons to gather together as a means of participating in public affairs and to pursue common interests or further common purposes.

Similarly, section 16(2) of the Charter relevantly provides that every person has the right to freedom of association with others. This right is concerned with allowing people to pursue common interests in formal groups, such as political parties, professional or sporting clubs, non-governmental organisations, trade unions, and corporations.

This right may be limited by prohibitions on large gatherings or directions that place limits on who a person can have contact with. Any such restrictions will need to be reasonable and proportionate in all the circumstances in order to be compatible with the right to freedom of peaceful assembly and association.

Protection of families and children

Section 17(1) of the Charter recognises that families are the fundamental group unit of society and entitles families to protection by the society and the State. Section 17(1) is related to the section 13(a) privacy right and an act or decision that unlawfully or arbitrarily interferes with a family is also likely to limit that family’s entitlement to protection under section 17(1).

The Charter does not define the term ‘family’; however, it is given a broad interpretation. It at least includes ties between near relatives, with other indicia of familial relationships including cohabitation, economic ties, and a regular and intense relationship. Cultural traditions may be relevant when considering whether a group of persons constitute a ‘family’ in a given case. In this respect, the cultural right in s 19(2)(c) of the Charter, which states that Aboriginal people must not be denied the right to maintain their kinship ties, is also relevant.

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. It recognises the special vulnerability of children, defined in the Charter as persons under 18 years of age. ‘Best interests’ is considered to be a complex concept which must be determined on a case-by-case basis. However, the following elements may be taken into account when assessing the child’s best interests: the child’s views; the child’s identity; preservation of the family environment and maintaining relationships; care, protection and safety of the child; situation of vulnerability; the child’s right to health; and the child’s right to education.

These rights could be limited where families are prevented from having contact with each other or where children are detained under quarantine restrictions or prevented from attending school when self-isolating because of their own diagnosis or close contact with a diagnosed case of an infectious disease, such as COVID-19. Any such measures will need to be reasonable and proportionate in all the circumstances in order to be compatible with the right to protection of families and children.

Cultural rights

Section 19 of the Charter protects the right of all persons with a particular cultural, religious, racial or linguistic background to enjoy their culture, to declare and practise their religion and to use their language, in community with other persons of that background. In particular, section 19(2)(c) of the Charter provides that Aboriginal people must not be denied the right to maintain their kinship ties.

Limits on large gatherings may limit the right to enjoy one’s culture in community with other persons. Any such restrictions will need to be reasonable and proportionate in all the circumstances in order to be compatible with cultural rights.

Right to property

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. There are three elements to this right:

the interest interfered with must be ‘property’, which includes all real and personal property interests recognised under the general law;

the interference must amount to a ‘deprivation’ of property, that is, any ‘de facto expropriation’ by means of a substantial restriction in fact on a person’s use or enjoyment of their property; and

the deprivation must not be ‘in accordance with law’ in that the law must be adequately accessible and formulated with sufficient precision to enable the person to regulate their conduct.

It is possible that directions may restrict the use or enjoyment of property. Any such measures will need to be reasonable and proportionate in all the circumstances in order to be compatible with property rights under the Charter.

Right to liberty

Section 21 of the Charter protects the right to liberty. The liberty rights in section 21 reflect aspects of the common law right to personal liberty, which has been described as the most elementary and important of all common law rights. In particular, section 21(2) prohibits a person from being subjected to arbitrary detention, whilst section 21(3) prohibits a person from being deprived of their liberty except on grounds, and in accordance with procedures, established by law. Together, the effect of sections 21(2) and (3) is that the right to liberty may legitimately be constrained only in circumstances where the deprivation of liberty by detention is both lawful, in that it is specifically authorised by law, and not arbitrary, in that it is reasonable or proportionate in all the circumstances.

The scope of the right in s 21 extends beyond detention as part of the criminal justice system to protective or preventative forms of detention, including to prevent the spread of infectious diseases. Whether a particular restriction amounts to a ‘deprivation of liberty’ for the purpose of the right in s 21 is a question of degree or intensity. Detention or deprivation of liberty does not necessarily require physical restraint; however, the right to liberty is concerned with the physical detention of the individual, and not mere restrictions on freedom of movement.

Exercising powers under the Act to detain people, or require people to self-quarantine or self-isolate, may amount to a deprivation of the right to liberty. Any such measures will need to be reasonable and proportionate in all the circumstances in order to be compatible with the right to freedom of expression.

Humane treatment when deprived of liberty

Section 22 of the Charter requires that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person. The right to humane treatment while deprived of liberty recognizes the vulnerability of all persons deprived of their liberty and acknowledges that people who are detained should not be subject to hardship or restraint other than the hardship or restraint that is made necessary by the deprivation of liberty itself.

As discussed above, the use of the powers under the Act may involve deprivations of liberty. Where the powers are used in this way, the agency responsible for that deprivation must ensure that the needs of those deprived of liberty are provided for so that any such deprivation is humane.

Martin Foley, MP

Minister for Health