Earlier this year I argued that in responding to the unprecedented public health risk posed by COVID-19, vigilant respect for fundamental human rights is vital. Only by upholding the full suite of human rights can we be sure that our responses to the pandemic are properly directed at protecting the health and wellbeing of everyone in our community.

There is now also a strong case to argue that the human right to health needs to be protected in law here in the ACT.

Sixteen years ago, the ACT's Human Rights Act 2004 came into force, primarily protecting a classic catalogue of civil and political rights drawn from the International Covenant on Civil and Political Rights. It does not currently recognise the right to health as a human right.

Yet we have all seen this year - writ large on a global scale - how important it is to have equitable access to healthcare and a functioning and quality health system. We have seen distressing images of people overseas unable to access essential healthcare, and health professionals being forced to make impossible choices about who should benefit from life-saving interventions. When public housing towers were locked down in Melbourne, we saw huge human rights problems which are currently being investigated by the Victorian Ombudsman.

Among other things, a legislated right to health would help to guide complex and difficult ethical decisions by health professionals, such as who should have priority access to scarce resources, including vaccines. It would inform the standards that we set for residential aged care services. It would enable best practice approaches to end of life treatment and palliative care options to be more readily identified and implemented. It would provide an objective lens over our stated commitment to Closing the Gap to achieve health equality for Aboriginal and Torres Strait Islander peoples.

The inclusion of a right to health in the Human Rights Act would place express obligations on ACT public authorities to act consistently with the right to health, and to give proper consideration to the right to health when making decisions. This includes taking account of the underlying determinants of health, such as a healthy environment.

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Bills introduced into the Legislative Assembly would have to expressly consider whether they were likely to adversely impact on the right to health (at the federal level, statements of compatibility for proposed federal laws must consider the right to health and are subject to scrutiny by the Parliamentary Joint Committee on Human Rights).

Recognising a right to health in the Human Rights Act would enable government action or inaction to be critically assessed from a human rights framework. It would help us to assess whether the government has developed a co-ordinated and comprehensive health strategy, which addresses structural problems and the needs of vulnerable groups in our community. It would help to ensure that marginalised groups are able to effectively participate in decision-making processes and the development of policies that affect them. It would assist to ensure the equitable distribution of all health facilities, goods and services.

In short, a rights-based framework for health would emphasise principles of accessibility, availability, acceptability and quality of care.

The right to health as a human right is recognised in one form or another in the bills of rights of many countries. It is also protected in Queensland's newly enacted Human Rights Act 2019, albeit in limited form. In countries like South Africa the legal right to health resulted in court cases enabling broader access to HIV anti-retroviral treatment drugs. Historically, the right to health has long been regarded as fundamental to human dignity and indispensable for the exercise of other human rights. The World Health Organisation declared in 1946 that the highest attainable standard of health is a fundamental right of every human being, without distinction of race, religion, political belief, economic or social condition.

As 2020 draws to a close, COVID-19 should serve as a wake-up call that we cannot take our human right to health for granted.