Vic human rights commissioner calls for scrutiny of new emergency laws

By Shannon Jenkins

Monday April 27, 2020

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Limitations on human rights under the Victorian government’s new emergency laws must be justifiable and subject to scrutiny, according to Victorian Equal Opportunity and Human Rights Commissioner Kristen Hilton.

State parliament on Thursday passed the COVID-19 omnibus bill, which included a wide-ranging package of reforms targeting justice and corrections, rental relief and financial support.

The act covers measures which would assist many Victorians during the pandemic, including support for people injured at work who cannot return or find employment due to the impacts of their injury and COVID-19. For people in rental properties, the act temporarily bans evictions and rent increases.

The emergency measures would expire after six months.

Hilton said that while the government has “acted decisively to safeguard public health” with necessary emergency measures, some of the provisions — including changes to procedures in courts and tribunals and restrictions in prisons — would likely impact the human rights of Victorians.

“During a state of emergency, some limitations on human rights may be unavoidable – and these are not decisions we can take lightly. Any restriction on human rights must be necessary, justifiable, proportionate and time-bound,” she said.

Under Victoria’s Charter of Human Rights and Responsibilities, the state government must act consistently with human rights. Any new laws must be accompanied by a statement of compatibility that shows how the law is consistent with the charter, Hilton noted.

“The statement of compatibility the government has provided with the act shows that it has given careful consideration to balancing human rights and any necessary limitations during this period. This is a compelling example of the charter in action, showing that it is possible to enact emergency measures while still ensuring human rights considerations are central to the law-making process,” she said.

However, Hilton argued the breadth of these powers and their likely impact requires close and independent oversight, and has called for greater scrutiny of the legislation and the government’s overall response to COVID-19.

“The government should establish an independent committee to scrutinise the response, that is informed by human rights expertise and can hear directly from the public. This is critical in maintaining public confidence and transparency,” she said.

Some of the major changes under the bill include:

  • a temporary ban on rental evictions and rent increases,
  • powers allowing the health minister (after consulting with the Australian Nursing and Midwifery Federation) to give hospitals more flexibility with nurse-to-patient ratios where the coronavirus places “extraordinary” demand on services,
  • allowing virtual meetings for local councils and remote work arrangements for joint standing committees of the parliament,
  • up to six additional months of weekly WorkCover payments for long term injured workers who are due to transition off WorkCover weekly payments,
  • granting the courts, corrections and wider legal system with temporary powers to make procedural changes by regulation,
  • judge-only trials where the defendant has agreed and the prosecution have been consulted,
  • greater flexibility for the courts to change their processes to reduce person-to-person interaction, including electronic filing and execution of affidavits and increased use of technology to conduct proceedings,
  • powers allowing the Magistrates Court to impose electronic monitoring conditions on Community Corrections Orders – a power currently only held by the County Court and the Supreme Court,
  • an extension on the time before which interim Family Violence Intervention Orders and Personal Safety Intervention Orders lapse, from 28 days to three months,
  • the allowance of quarantine orders in prisons and youth justice facilities,
  • more flexibility for the Youth Parole Board chair and alternative chair in hearing cases, with children and parents allowed to attend conciliation conferences and counselling remotely,
  • allowance for emergency care hearings to be heard by the Children’s Court on the next working day.

The most controversial changes relate to the justice system. The commission plans to monitor the effects of the new laws and policies on those who are most vulnerable, as well as their human rights impacts.

It will also work closely with the government and public authorities “to help them understand their obligations and balance any restriction on human rights with their obligations to protect public safety”.

Next week the commission plans to launch a COVID-19 hub on its website, which will provide regular updates on the human rights implications of the state’s emergency laws.

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