By Karl Hoerr -
Trust is hard-earned and easily lost, so goes the saying. High levels of trust in government early in the Covid-19 pandemic, meant that extraordinary limits on personal freedoms were initially, largely accepted. But as the pandemic dragged on, trust waned, and the restrictions were questioned. So, what are the lessons for a future, perhaps more likely pandemic and a potentially less compliant population?
In October, a panel comprising Chair Robyn Kruk, Professor Catherine Bennett and Dr Angela Jackson, published the final report of the independent Covid-19 Response Inquiry. There were nine recommendations and 26 actions for change, in dealing with future health emergencies.
The report contains a whole chapter on ‘Trust and human rights’. It notes that trust in government peaked in mid-2020. “Australians were initially willing to forgo their usual high levels of freedom to unite for the common good … By the second year of the pandemic, restrictions on personal freedoms were less accepted as Australia’s rate of infection remained low relative to other countries.”
It soberly observes that trust is critical to any pandemic response and must be rebuilt and maintained. “Government cannot rely on people willingly adhering to similar public health restrictions in a future public health emergency.”
Absence of legislation
Dr Elizabeth Hicks is a lecturer from the Melbourne Law School at the University of Melbourne and has written about governance during the pandemic. Specifically, she has examined the issue of international border closures and how Australia dealt with repatriations, compared with places like Israel and New Zealand.
She says the pandemic has bolstered the argument for a federal human rights act. “Australia is one of the only countries in the world that doesn’t have any kind of human rights instruments at that federal level.”
Hicks says in New Zealand in particular, the presence of a human rights framework did make a difference. “Courts did step in and correct or criticise some aspects of policy around border closures and effectively required government to do more.”
Human rights are key
Bruce Chen is a Senior Lecturer from Deakin Law School, at Deakin University, whose teaching interests include human rights law, public law and statutory interpretation.
He says the link to trust, as outlined in the report, makes absolute sense.
“[W]hen we think about human rights, we think about a person’s inherent dignity, their humanity. We think about concepts like accountability, transparency, evidence-based and a culture of justification. And these were some of the key themes that were picked up by the response inquiry when talking about trust.”
Chen says the pandemic highlighted the fact that existing human rights legal protections are piecemeal.
“The sense of what rights protections we have are often inaccessible to the broader Australian community, because there isn’t that one source of rights protections that we can go to,” he says.
Impact on children
The response inquiry found restrictions disproportionately affected certain groups in the community, including children. Bruce Chen says there will have to be much greater consideration of these issues in handling a future pandemic.
“[W]e need to ensure that children have a right of participation in matters which affect them and I do query whether that was really the case in the Covid-19 pandemic.”
Hicks argues that proportionality can still have a role during a protracted emergency. “In the short term, it may be that there is very little that the government can do, that the nature of an emergency really requires a very strong response and there’s a tragic choice to be made. But over time, the nature of that emergency starts to change and we saw this with the pandemic.”
“I think the pandemic was this really interesting stress test for the accountability mechanisms that we have around human rights,” says Hicks.
She says the reluctance to adopt a human rights act in Australia, probably comes down to the nature of our political system. “[I]n the current two-party system that we have in Australia, having that pressure to reorganise how decisions are made, is probably not seen as desirable.”
“It would limit the opportunities that political parties have to campaign in this very particular … competitive system and practice of politics that we see in Australia.”
Chen says having a human rights act would be a symbol of a mature body politic.
“It’s a matter of political will and political courage to make that happen.”
