We're not the 'human rights nation' we thought we were

Governments have done things we should not have tolerated - things we should not have had to tolerate.

Some of these actions were known to have no documented health benefits; like the imposition of curfews or restricting time spent exercising outside.

Some placed extremely minimal risks above human compassion, preventing loved ones from seeing dying relatives or attending funerals. Others were straight up wrong; like the Andrews government preventing Victorian residents from returning home if they (lawfully) visited NSW. Plenty were hypocritical, like having one rule for sports stars and elites and different rules for ordinary people.

Right now, we are exploring ways to coerce people to get vaccinated against their will.

Though it may be heresy to say it, there are some things that are more important to society than safety. Millions of people throughout history have given their lives for the freedoms our society tossed away because of fear of COVID-19.

It is not so much that the majority has supported an extremely risk-averse approach. This is understandable in a global pandemic. The problem arises from unreasonably and forcibly extending this approach to everyone.

Democratic societies are supposed to have protections - including, but not limited to, human rights - to prevent the tyranny of the majority.

Documents like the ACT Human Rights Act or the Victorian Charter of Human Rights and Responsibilities contain many fine words about human rights. Yet, they appear to have been absolutely no barrier to politicians announcing any pandemic policy they wanted.

The Victorian charter was no obstacle to the imposition of a curfew in Melbourne. The Premier made conflicting statements on the motivations, and little or no evidence was presented or available that the curfew was necessary or had a significant health effect at all.

Yet, effectively on nothing more than the judgment of the government expert who introduced the measure, it was considered a reasonable restriction on human rights by the courts.

If that is the test, the protections in the charter are almost meaningless.

Not only are those protections illusory, but many of the institutions, bodies and individuals supposed to support and advocate for them either folded the second it was politically unpopular or cheered on the restrictions.

For example, where was the outrage from the Victorian Equal Opportunity and Human Rights Commission or the Australian Human Rights Commission over the Melbourne curfew? The Victorian Commission could have intervened in the Loielo challenge to the curfew, but didn't.

Some supposed human rights advocates - who once claimed asylum seekers could enter the country any way they wanted, and government was abusing their human rights by not releasing them all into the community - suddenly supported a government preventing its citizens from returning home.

And not only did they support lockdowns, but they argued vociferously on social media that we should be locked down harder and longer.

Credit is due to those like former race discrimination commissioner Tim Soutphommasane who have taken a stand against some of these measures, despite strong criticism from former political allies.

But these voices have been all the more notable because they have been so few. Indeed, seemingly the only check on the government response to COVID has been embarrassing press coverage where measures have clearly offended the public's sense of decency.

Some, like Adam Creighton from The Australian and Tim O'Connor from Amnesty International Australia, have suggested in response that a national human rights act or a constitutional bill of rights is needed.

With the greatest of respect, they are misguided.

There are a number of valid concerns about these acts and bills: they increase the power of unelected judges, the left and the right cannot agree on what rights should be protected, and there is significant potential for unanticipated future consequences.

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We can now add two more to this list.

First, there is no reason to think a legislative charter or bill of rights will be any more effective at the national level than they have proven to be at the state level. Victoria has a charter of rights, while NSW does not, yet at every stage the Victorian COVID response has been more draconian than the NSW one.

Second, Australia doesn't have a culture of judicial review that would encourage the judiciary to overrule government policy. Even where clear rights do exist - for example, in relation to the closure of state borders - courts have not sought to second-guess government decision-making.

It is far from clear that encouraging this culture is a good idea. As the review of the Supreme Court currently being conducted in the United States shows, this culture has undoubtedly led to an unhealthy politicisation of the judiciary.

The US system does a better job of protecting rights in some instances. But there are serious - and obvious - drawbacks in the way the courts have effectively created previously unknown rights. In addition, it also arguably protects rights at the cost of undermining confidence in important societal institutions.

In truth, there is no good solution to this problem. Politicians having discovered that the strength of our connection to certain freedoms is far weaker than expected, it is inevitable that these new limits will be tested in the near future.

The Andrews government's recent proposal to "streamline" the process of declaring and accessing emergency powers is likely the first such step.

If there is a silver lining, it is that we can now have a more honest conversation about what is, and what isn't, a human right. Believers in human rights now have much work to do.