As the COVID-19 pandemic enters its third year, public health directions have become part of our daily lives. We are used to complying with directions, issued by the ACT Chief Health Officer, covering mask-wearing, isolating or quarantining at home, density limits for hospitality venues and QR check-ins. On the whole, we have gotten on board and understood the need for such measures.
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What may surprise Canberrans, however, is that the Chief Health Officer's powers to issue public health directions are not limited to directions aimed at the community at large - they can also be addressed to a particular individual. This means that the Chief Health Officer can make an order about you specifically, and what you must do or not do. In certain instances, as we described in our submission to an inquiry currently under way in the ACT Legislative Assembly, this could include making an order for you to stay in a specific location, such as a quarantine facility or a hospital.
This is essentially a power to detain you.
A person detained under these emergency powers has no right to appeal the direction. There is no provision as to the manner of their detention, or that it be subject to minimum entitlements and supports. No one has any obligation to assist the detained person to contact family or lawyers, nor are there any requirements to notify oversight entities such as the Ombudsman or the Human Rights Commission.
There is also no obligation to publicly report the number of directions issued against individuals. Many people would be surprised to hear that a person detained under the ACT's public health emergency legislation has fewer rights than someone who is detained under the ACT's counter-terrorism laws.
The ACT Human Rights Commission recently detailed these concerns to the Assembly committee inquiring into a government bill which seeks to introduce new laws for the ongoing management of COVID-19. In many respects, the bill is a significant improvement to the current legislative framework, and provides for better oversight of public health decisions that are directed at the community-wide level.
For example, the government will be required to publish the medical advice and human rights justifications it relies on for any future public health directions that are issued to the community. The government must also consult with the Human Rights Commissioner when making such directions, to help ensure they are consistent with human rights. COVID-19 management declarations and vaccination directions will be subject to veto by the Assembly, and a standing committee must report to the Assembly on any human rights issues raised by directions issued by the Health Minister or the Chief Health Officer.
These are important transparency and accountability mechanisms, and the government should be commended for including them in the bill.
However, while the proposed bill contains a better framework for the oversight of decisions at the community-wide level, it falls short in ensuring there are similarly robust safeguards in the application of expansive powers to individuals.
The commission is deeply concerned that the bill will largely retain the existing powers for the Chief Health Officer to issue directions to individuals, effectively requiring them to be detained in segregation and isolation, without any obligations to notify family, legal representatives, or advocates. People may be detained potentially incommunicado for extended periods of time.
Given the serious human rights implications of these powers, it is concerning that neither the bill's explanatory statement nor the presentation speech by Minister Rachel Stephen-Smith made any reference to the fact that the Chief Health Officer's powers to issue directions requiring the segregation or isolation of people also extends to a power to detain them.
The bill includes review and exemption mechanisms - and we welcome these. They include an important new right to independent merits review for people subject to segregation and isolation directions. But these safeguards are not sufficient on their own to ensure that real-time assistance and oversight will be available where a person is detained under these laws. Review rights on their own do not help if a person cannot access suitable supports in a timely way, including through the help of an advocate or representative.
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Without proper oversight of individuals subject to public health directions, there can be little visibility of them, little advocacy for better alternative options, and little protection for their rights.
In light of these concerns, the commission urges the government to amend the bill to include a requirement to notify an oversight entity (such as the Public Advocate in the Human Rights Commission, where appropriate) when the Chief Health Officer issues a segregation or isolation direction that involves the detention of an individual. Empowering and resourcing an oversight entity to act in real time to monitor the implementation of detention decisions is best practice wherever people are detained.
Such a proposal is not groundbreaking. Similar notification requirements already exist for safeguarding the rights of people who are subject to mental health orders, or who are preventatively detained under counter-terrorism laws.
As Canberrans, we should be proud of our reputation as a human-rights jurisdiction. But a human-rights-promoting culture requires more than taking a minimalist approach to human-rights compatibility, or balancing the public interest against individual rights in an overly legalistic and rigid way. It's about putting in place best-practice systems that can respond appropriately and adjust to the circumstances and needs of vulnerable individuals, while keeping the community safe.
The commission hopes the government will take this opportunity to hear the concerns that have been raised over the course of this inquiry, and amend the bill to ensure it is the best version it can be, for the benefit of all Canberrans.
- Dr Helen Watchirs OAM is the ACT Human Rights Commission president, and Human Rights Commissioner. Karen Toohey is the Discrimination, Disability, Health Services and Community Services Commissioner.
