We need to think about post-lockdown rights

I have been reading the Universal Declaration of Human Rights. All of it.

Most people who think about such things know the words of Article 1 (“All human beings are born free and equal”) and Article 3 (“Everyone has the right to life, liberty and security of person”).

But until this most recent reading I had forgotten, or never knew, the bit towards the end – Article 29 – which states, “Everyone has duties to the community in which alone the free and full development of his personality is possible” and goes on to say that “limitations” should be only those “determined by law” to protect the rights and freedoms of others and “the general welfare in a democratic society”.

The Universal Declaration is a document composed in a particular postwar context, when democracy seemed ascendant and it was possible to write about humans and use only male pronouns. But as a broadly recognised definition of human rights, it’s as good as we are ever likely to get.

Now, as Australia crab-walks its way towards whatever comes next in the management of the pandemic, it is the territory between these two articles – the right to security of person and the duty to the community – that we will have to navigate. We are ill-equipped to do so.

In particular, “vaccine passports” will likely become part of our everyday lives within weeks. Access to venues, goods and services, and perhaps the ability to cross state borders, will become contingent on being able to prove that you have had the double jab.

Prime Minister Scott Morrison has ruled out making vaccines mandatory, and it is easy to understand why. To allow the state to literally penetrate the skin of its citizens, to enforce a medical treatment, to inject a foreign substance against the person’s will? Even those of us who have willingly accepted public health measures that take away our freedoms, that are autocratic – the curfews, the military on the streets, the suspension of parliaments – may draw the line at it.

Yet depending on how they are rolled out, vaccine passports may effectively make the jab compulsory. Already, you can’t hold jobs in aged care unless you have been vaccinated. Soon you may not be able to volunteer or to be employed in your chosen occupation unless you have bared your arm to the state. You may not be able to eat out.

I had been reading the Universal Declaration following difficult conversations with my son. Twenty-three years old and locked in a flat on the other side of the city, outside my permitted 5-kilometre radius of travel, he is angry. His generation will, I think, be angry. They are hobbled when they would otherwise be embarking on adult life. But my son’s anger transcends his own situation. I have basically bought into and accepted the public health justification for the restrictions on our liberties. He does not. This is no small thing between us.

He thinks me naive for believing that government will give up its extraordinary powers once the emergency is over. He hates the unacceptable compromise of principle – of freedom – for public health measures not always supported by evidence. He says he is ashamed of Australia, and Melbourne in particular, for giving up liberty so easily. And when I texted him “I miss you like crazy, btw”, he responded, “Well missing people is just one of the many unquantifiable costs of lockdown. Add them up and you have a policy which makes Melbourne a city I do not want to live in.”

So, this is both an intellectual challenge and a ­heartache.

The second spur for my reading was an essay my son referred me to in The Atlantic magazine, in which California-based staff writer Conor Friedersdorf asked how long Australia could maintain its emergency restrictions on citizens’ lives while still calling itself a liberal democracy. He catalogued all the things we have signed up to and largely complied with – including bans on leaving the country and sometimes our states, curfews and, for those in the South Australian home quarantine trial, an app allowing the government to check where you are. It made a frightening list.

Friedersdorf correctly identified the reason why Australia, more than other comparable countries, is in this position. The early lockdowns were predicated on flattening the curve so as not to overwhelm the health system while betting that a vaccine would be invented. They worked. Australia, having successfully suppressed the virus to the point of elimination, was then in a position to marshall its military and civil society to vaccinate the nation as quickly as possible, allowing it to lift restrictions more fully than Europe and the United States. Instead, the federal government failed to spend up big enough on vaccines. It sapped our urgency, “even though that lack of urgency meant months more of basic human rights being abrogated”.

And so, Australia, more than almost any other nation, is stuck in the territory between those two Declaration articles. Security of person. Duty to community.

As in so many aspects of this pandemic, we are underprepared to negotiate this dilemma, yet we are having to do so at high speed. Our legal system is lacking precedent; our intellectual life is bereft of serious debate. If you raise human rights issues, you are cast as some kind of anti-vaxxer idiot. Under pressure, we seem capable of thinking only in binaries.

It says something about Australia that the most significant legal challenge on COVID-19 restrictions so far – Clive Palmer’s case against the state of Western Australia over its closed border – was couched in terms not of human rights but of trade. The politics, and attitude towards Palmer, meant there was scant attention to the implications.

Our Constitution does not contain a bill of rights, or any explicit statement of the rights of citizens, so Palmer argued his case under section 92 of the Constitution, which states that “trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free”. Palmer was leaning heavily on the words “intercourse” and “absolutely free”.

The High Court found against him, applying reasoning on “structural proportionality”. This was the first time the court has used this principle outside cases on freedom of political speech. It accepted that COVID posed a risk to the population of WA, and that the consequences of uncontrolled outbreaks included death and hospitalisation and could be “catastrophic”. Therefore, it decided, the public health orders under state emergency legislation were “proportional” to the need, and constitutionally valid despite section 92. It also observed that virtually every system of constitutional justice in the world had adopted “structured proportionality” in balancing the rights of individuals and the community – with the “partial exception” of the United States.

There, the principle of liberty is part of the culture, part of the revolutionary fervour in which the nation was born. Our constitution, on the other hand, is a bureaucratic document, largely about taxes.

Article 13 of the Universal Declaration of Human Rights may insist that “Everyone has the right to freedom of movement and residence within the borders of each state” (meaning nation states), and that “Everyone has the right to leave any country, including his own, and to return to his country”. But structured proportionality, the High Court judgement seems to suggest, means that this, along with every other “right”, can be given away.

Most democracies also have the power to declare a state of emergency, thereby conferring the government with extraordinary powers and suspending norms. (It is generally understood that states of emergency are short lived, such as a natural disaster and its aftermath.) For example, the Commonwealth has powers under the Biosecurity Act, which allows the chief medical officer to detain people, isolate them, restrict their behaviour and force them to yield up health information. When a ­biosecurity emergency has been declared, the minister for health can “issue any direction to any person … to prevent or control the entry, emergence, establishment or spread of a listed disease”.

Does that include the power to force vaccination? Perhaps.

Public health and emergency acts give state governments even more broad powers. In Victoria, for example, in a declared public health emergency the chief health officer can order people to be detained “for as long as reasonably necessary” to reduce risks to public health, as well as closing borders and “giving any other direction reasonably necessary to protect public health”.

Does that also include mandating the jab? Perhaps.

In a state of emergency, democracies become, to some extent, autocracies. The difference between democracies and dictatorships is that the powers are contained in laws that are passed by elected parliaments. The authors of the authoritative legal textbook Emergency Powers in Australia observe: “the remarkable trait of a liberal democracy is that while the powers to cope with emergency provide the potential for authoritarian rule, such powers are terminated with the restoration of normalcy”. But our present situation is unlike any other emergency. What is normalcy in the post-pandemic world? When will we know we have reached it?

I said to my son that the High Court was one of the checks and balances on autocratic state power. And he argued, reasonably enough, that there is no way to say when the crisis is over. What level of risk do we as individuals accept? What level of risk will government accept? What about the still uncertain science with which risks are calculated? Surely, he argues, principle is important too. The principle of individual freedom.

When it comes to vaccine mandates, these questions are unresolved. In researching this piece, I could find no one with a confident grip on the complex maze of rights, responsibilities, practicalities and legal jeopardies.

Yet vaccine passports are almost upon us.

First, there are questions over the responsibilities of employers, mostly under state law, to provide safe workplaces. That might justify mandating vaccination for employees, but what about the “security of person” for a worker who does not want to take the jab? Then there is anti-discrimination legislation – a mix of state and federal laws – which includes the rights of those who might conscientiously object to the jab on religious grounds. And there is the more practical question of insurance. Lack of insurance might force a business to close, and insurers might well insist on employees being vaccinated. Finally, there are duties of care to clients and customers, under a mix of civil and criminal law.

The Australian Human Rights Commission has a hub of information on its website about COVID restrictions and mandates. It says employers should be “cautious” about mandatory vaccination policies, due to discrimination legislation that operates in different ways in different states. More generally, the AHRC proclaims the essence of the balance between individual liberty and duty to the community: “Protecting public health and protecting human rights are not mutually exclusive choices. Measures to protect public health can protect human rights, like the right to life. And restrictions on human rights can sometimes be justified if they are necessary to protect public health.”

But it warns of “creeping authoritarianism” and the need to make sure we do not accept greater restrictions on our rights and freedoms than are needed to keep us safe. During the pandemic, the AHRC points out, many decisions have been made by the so-called national cabinet rather than by parliaments. “The responsibility for implementing those decisions has been split between federal, state and territory governments. This complicates the ability to ensure proper human rights scrutiny of the measures.”

Notably, the commission “is concerned at the lack of transparency in explaining the continued justification for some emergency measures, and even for identifying which level of government is responsible for some measures”.

As for vaccine passports, the AHRC states, crucially, that they are more likely to be consistent with human rights if they are used as a tool to ease existing restrictions and improve public health outcomes. Rather than becoming a further requirement on top of existing restrictions, vaccine passports should “generally operate in place of them”.

The difference between me and my son is that I believe the institutions of democracy will keep us safe, that the powers will by and large be used proportionately and that our traditions, and ultimately our courts, will ensure that at some stage we return to an acceptable state of normal. He thinks that’s credulous. On the day of an anti-vaccination demonstration in Melbourne, he told me that he was not an anti-vaxxer and that most of the people there were idiots (on this we agreed), but that he could anticipate a day when he might stand shoulder to shoulder with such people to defend his civil liberties. I said that if the restrictions remained any longer than was necessary, I would be standing there with him. And he asked me how I would judge when that moment came.

We are so ill-prepared, as we come into the next stage in the management of the pandemic. We are hungry for freedom. We are frightened of the risks. We have not done the thinking, as a nation, and now time is short. There can be no referendum, no consultation, no collective thinking through. We are rocketing ahead.

Governments will almost certainly have to legislate on vaccine passports. Insurers will set polices. The Fair Work Ombudsman will adjudicate. The High Court will likely be troubled again.

My son is contemplating moving to the United States. Perhaps to New Hampshire or Idaho. Only in the US, he says, are rights understood as inalienable, rather than endlessly contingent.

“I will visit,” I respond.

But I know where I live. With a mind that operates in shades of grey, in a country that struggles to know itself.

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