'Lacking in transparency': ACT pandemic response prompts human rights concerns

The ACT Human Rights Commission has raised concerns the new laws enacted in response to the coronavirus pandemic are lacking in oversight. Public health directions, like restrictions on travel and gatherings, are signed off on by the chief health officer and do not have to pass through the Legislative Assembly.

"Public health emergency directions are not subject to the usual human rights scrutiny requirements under the Human Rights Act," the commission said.

"We are concerned that their implementation has also been largely lacking in transparency."

The commission said it acknowledged the government needed flexibility to quickly enact legislation to stop the spread of the virus. "This flexibility does not, however, detract from the argument for consistent and enhanced oversight," it said.

"On the contrary, ongoing scrutiny of reactive and evolving delegated legislation must be available to ensure that these instruments have appropriately considered and are consistent with relevant human rights."

While praising ACT police's measured approach, it wants the force to be more clear about what directions officers have been given to enforce public health directions. The commission said a human rights approach in a public emergency required that laws were accountable to scrutiny mechanisms.

"Such oversight plays a vital role in ensuring that any preventative measures are circumscribed to their purpose, feature adequate safeguards, mitigate against unforeseen consequences and, in turn, warrant public confidence," it said.

"Human rights scrutiny is especially essential where delegated legislation determines the content of obligations that attract fines or potential imprisonment for non-compliance."

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An ACT parliamentary committee looking into the COVID-19 response has recommended the government provide human rights compliance statements and additional Assembly oversight for coronavirus laws.

It also recommended that ACT Policing make public the guidance it's given officers about how to enforce the public health directions

Further, it wants police, ACT Health and Access Canberra to publish weekly deidentified data about compliance activities taken under any public health emergency directions. These would include the number of infringement notices or formal cautions issued; the number of compliance checks conducted; and basic socio-demographic indicators of affected individuals or businesses.

The government is yet to respond to the recommendations and the Attorney-General, Gordon Ramsay, did not answer questions directly.

A government spokesman said the committee's recommendations would be considered. "The government is fully committed to democratic transparency, especially during the ongoing pandemic," he said.

"This unprecedented health and economic emergency will continue to be felt in our community for many years.

"Given the likely long-term impacts of the pandemic on our community, we will continue to monitor the situation in determining if changes are required to the way in which emergency legislation and its associated functions are presented, introduced or enacted."