May 27, 2020

Law and order

COVID-19 versus human rights

By Russell Marks
COVID-19 versus human rights

© Stephen Barnes / Alamy

The virus is the latest excuse for governments to slash and burn the individual rights of prisoners

For many government departments and agencies, COVID-19 has become a reason not to creatively protect and enhance human rights, but to further restrict them.

In my day job, I advocate for people subject to involuntary orders under Queensland’s Mental Health Act 2016. Many patients confined to hospital wards found their measly packets of “leave” summarily cancelled as the COVID-19 crisis emerged, even if all they had been accessing was escorted walks around hospital grounds.

Some police officers have relished the extra powers they’ve been given under the emergency health regulations. Reports from the Northern Territory claim that officers have barged into houses to do headcounts. As of May 25, NT police had issued 60 fines tied to infringements of health regulations, at least 15 of which were issued in Tennant Creek, a town of just 3000 people, half of whom are Aboriginal. In most of those cases, police no doubt had the discretion to simply advise people of the restrictions. Professionals working with emergency-housed homeless people in Brisbane tell me that police have been patrolling the corridors of serviced apartments under the cover of conducting COVID-19 compliance checks, and they have taken the opportunity to execute outstanding warrants.

“COVID-19 versus human rights” is also the title of a brief essay published last week by Queensland Corrective Services on its own website.

QCS accepts that it is tasked “with the humane containment and supervision of prisoners and offenders”. It also accepts that the state’s new Human Rights Act 2019 and the Optional Protocol to the Convention against Torture (OPCAT, which the Turnbull government ratified in 2017) are “worthy and important principles”. But inside a prison, QCS explains, COVID-19 presents some real challenges. In some prisons overseas, infection rates have topped 90 per cent.

“The nature of prisons makes social distancing all but impossible,” QCS laments, “and the incarcerated population … has significantly poorer health indicators than the general population.” It’s not wrong there. Mental illness, intellectual disability, heart disease, lung disease – prisoners collect these accoutrements like stamps. In response to the pandemic, QCS has cancelled visits by families and lawyers, sent all “new receptions” into 14-day isolation, and generally limited prisoners’ access to exercise. “The reality is,” says QCS grimly, “the virus cares not for an individual’s rights.”

Assuming for a moment that “humane containment” is not an impossibility (like “protectionist deregulation” or “false truth”), one solution to prisons’ inherent vulnerability to COVID-19 is to get people out of them. In March, the parliaments of NSW and the ACT passed emergency legislation giving their respective Corrections commissioners the power to release prisoners – much like the United States has done. Which is great, except that neither commissioner has since ordered a single COVID release under their new powers.

Last week, the Palaszczuk Labor government introduced its own legislation that would have allowed prisons to release prisoners up to a week before their scheduled parole dates. This would allow for better coordination with what are now very infrequent flights home – including to Aboriginal communities in the state’s far north – so as to avoid parolees wandering the streets in breach of health restrictions. But Palaszczuk’s commitment to sense and reason didn’t survive the mere posing of questions by the Murdoch-owned Courier-Mail, which wasn’t having a bar of it. The government backflipped by 8pm the same day, with its police minister saying something enlightening about doing crime and doing time.

When Queensland’s attorney-general introduced that state’s new human rights laws in parliament 19 months ago, she said the laws were “about changing the culture of the public sector”. Five months after they came into effect, there’s precious little evidence of cultural change. The same could be said of Victoria, where a human rights charter (in effect since 2007) did not cause the minister responsible for the welfare of detained children, or her department, to think twice before transferring them into a maximum-security wing of Barwon Prison in 2017. (The courts ultimately decided the transfer was illegal, but the damage had been done.)

As if to underscore the propensity for Australian governments to react to emergencies by slashing and burning individual rights, Scott Morrison this week promised to further “reform” Australia’s industrial relations laws so as to “create” more jobs. There’s only one way that IR law reform can conceivably have a job-creating effect, and that’s by relaxing regulations such as the minimum wage and award conditions – as if WorkChoices hadn’t relaxed them enough. But, as many who work as “contractors” in the gig economy are discovering, working for low pay and poor conditions isn’t all it’s cracked up to be.

Even as (some) state and territory parliaments have enacted shiny new human rights laws in recent years, governments have found it not at all difficult to get around them. COVID-19 is merely the latest of many excuses. But it’s in emergency situations that human rights are most valuable.

Russell Marks

Russell Marks is a lawyer and an adjunct research fellow at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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