Pandemic and human rights: watching over the watchdogs

State Parliament’s COVID-19 Response Committee will hold its first hearings on Thursday. With the pandemic emergency prompting new laws handing extraordinary powers to authorities, the committee should hold them to account, argues Sarah Moulds.

Apr 22, 2020, updated Apr 22, 2020
Photo: Tony Lewis/InDaily

Photo: Tony Lewis/InDaily

South Australia could be well positioned to avoid the worst when it comes to the health impacts of COVID-19, but the impacts of the virus on our livelihoods, lifestyles and rights is set to be deep and long lasting.

When it comes to South Australia’s legislative response to COVID-19 we have seen significant activity from the Government and the Parliament in the form of new legislation, amendments to our existing legal framework for dealing with public emergencies.

These include broad discretionary powers to law enforcement officers to enforce physical distancing measures and quarantine, new powers for authorised officers to detain people (such as those with mental illness) who may not be able to look after themselves, and changes to the legal relationships between landlords and tenants in both residential and commercial sectors.

No doubt many of these measures are necessary. Efforts have been made by the relevant Ministers, public servants and police officers to have regard to the rights of individuals when implementing these new or changed laws.

However, the fact is that some very extraordinary powers have now become law – and South Australians need confidence that the impact of these laws on their rights and liberties is proportionate to the risks we face.

Parliamentary committees are being used nationally and in the states and territories to ensure that the laws made in the rush to respond to the COVID-19 public health disaster are effective at achieving their objective, and proportionate when it comes to their impact on other important public objectives such as individual privacy, freedom of movement or economic activity.

In some Australian jurisdictions, human rights legislation sets out when and how rights can be trampled in terms of emergency, and specialist parliamentary committees are tasked with reviewing all laws against principles designed to ensure the appropriate delegation of legislative power to the executive. Human rights commissions also keep watch.

In South Australia, we have no human rights body or Human Rights Act.

The parliamentary committee system incorporates some of these criteria into the review of delegated legislation but generally operates on an ad-hoc basis, setting out new criteria for scrutiny of proposed or enacted laws when it sets up each new Committee.

Whilst this can give rise to concerns that rights issues might not be fully considered within the South Australian parliamentary scrutiny system, it also provides the freedom to to develop a ‘turbo charged’ committee in times like these.

On 8 April 2020 the South Australian Parliament resolved to establish a COVID-19 Response Committee chaired by Greens MLC the Hon Tammy Franks, sitting alongside the Hon Connie Bonaros MLC, the Hon Emily Burke MLC, the Hon Nicola Centofanti MLC, the Hon Dennis Hood and shadow Attorney General the Hon Kyam Maher MLC.

The Committee is tasked with reviewing laws including COVID-19 Emergency Response Act 2020 (SA), COVID-19 Emergency Response (Schedule 1) Regulations 2020 and of Emergency Management (Gatherings No 2) (COVID-19) Direction 2020.

The COVID-19 Committee has been given scope to define the contours of its Terms of Reference, and to utilise the broad range of powers available to South Australian Parliamentary Committees including powers to call for submissions, hear and examine witnesses, request documents from Government and publish reports.

Given the extraordinary nature of the South Australian legislative response – which include preventing landlords from terminating leases, enabling ‘authorised officers’ to detain people for up to 28 days without charge, giving police officers the right to issue $1000 fines to anyone standing too close to another person and empowering the Commissioner of Police to call all the shots how and when travellers should be kept away from the rest of us – the COVID-19 Committee has a big and important job on its hands.

The South Australian community may well think that these laws make sense: at the moment. But this thinking might change dramatically as the risk posed by the COVID-19 begins to dissipate in our State.

It might also change if the South Australian community think that these powers are being used unfairly, or if the need for these powers no longer exists in light of other useful ways to minimise risk such as advances in contact tracing or testing.

This means that it is absolutely vital that the COVID-19 Committee takes the opportunity to embrace a broad terms of reference, and a broad set of scrutiny criteria to define its work.

At a minimum this should include consideration of the extent to which each legislative or regulatory response to COVID-19 is necessary and proportionate to the health risk posed and do not unduly trespasses on personal rights and liberties.

It should also look to see whether the laws are effective at minimising the risk posed by COVID-19 and whether the executive powers they confer are subject to sufficient safeguards and oversight.

Perhaps more importantly, the COVID -19 Committee should also be ambitious when it comes to the way it seeks to engage with the South Australian community, experts and key government agencies in its work.

The Committee should all use of the traditional submission-making processes but also alternative engagement strategies such as social media to promote the work of the select committee and encourage community engagement ‘virtual’ community forums, particularly targeting regional and remote communities. Proactive engagement and outreach is needed to hear the voices of those most deeply affected by the impact of these new legislative and regularly measures.

In other words, the COVID-19 Committee should look to ‘turbo-charge’ its scrutiny function from both a technical and practical perspective – showing the South Australian community that our ad-hoc approach to rights protection can deliver balanced, meaningful outcomes and hold those with extraordinary power to account.

Dr Sarah Moulds is a lecturer at the University of South Australia, with teaching and research interests in the area of public law, administrative law, anti-discrimination law and human rights.

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