By Maria O’Sullivan

In 2020, human rights law is being tested to its limits. 

As we are now all aware, in March 2020, the World Health Organization declared that an outbreak of the viral disease COVID-19 had reached the level of a global pandemic and called for governments to take urgent action to stop the spread of the virus.

The role of law in this health emergency has been central. It has permeated all aspects of our lives. In Australia, executive directions have been issued which require the closing of non-essential businesses, placed limitations on public gatherings, and severely restricted the movement of individuals. These measures have serious implications for various human rights protections, including the right to liberty, freedom of association, freedom of movement and the right to privacy. 

Normally, such restrictions would be unlawful. However, as I have noted elsewhere, a declaration of a state of emergency allows governments to enact restrictive measures in the interest of  protecting public health. For instance,  Victoria’s state of emergency declaration gives state authorities wide powers under its Public Health and Wellbeing Act 2008 to issue directions to restrict people’s movement and regulate public behaviour. This is important because officially declaring a state of emergency allows exceptional powers to be used in exceptional circumstances.

Because this emergency is testing the limits of our human rights protections in Australia, it represents an opportunity to consider how our legal system functions when society is tested. And, in particular, what the operation of the Covid laws say about how human rights are protected in Australia. 

In some ways, Covid presents new challenges which can be met by ‘old solutions’, that is, our existing principles and oversight mechanisms. Importantly, however, Covid also presents some new challenges which require human rights law in Australia to adopt new approaches and develop new solutions.

Here, I wish to highlight one particular aspect of Covid which demonstrates that we require some rethinking about human rights protections in Australia: the recent debates about mobile phone tracing to assist in controlling the Covid outbreak.

A New Challenge which requires a New Solution – Privacy and Surveillance

As reported in the media in recent weeks, the Australian government is planning to launch an app which will automate coronavirus contact tracing. Although the exact specifications of the app are still unclear, it appears that it will trace every person who has been in contact with a mobile phone owner who has tested positive for coronavirus in the previous few weeks. It will do so using Bluetooth smart phone connections to record who has been near a person for 15 minutes or more (the period defined as a contact). 

Obviously, this raises serious concerns for privacy. This is so even if installing the app is to be voluntary rather than mandatory.

International human rights law is clear that state parties have an obligation to protect everyone against arbitrary or unlawful interference with their privacy, family, or correspondence (Article 17 of the International Covenant on Civil and Political Rights).

This is where the Covid emergency represents a new challenge which human rights law must meet. 

Many would probably agree that certain fundamental limits should be put in place to regulate such a surveillance tool. First, any use of data should only be used only for the purpose of responding to the COVID-19 pandemic and cease once the pandemic is over. In this regard, the tracing app raises the issue of “mission creep”: that the government will use it for COVID purposes, but continue to access the data once the pandemic is over. Second,  the data must be properly and safely stored. Here I note that there have been some concerns around how the Australian government is going to protect data privacy, particularly given that the contract for storing the app’s data is going to a US-based company (Amazon). Third, these technologies must address risks in relation to discrimination against racial minorities and marginalised populations.

But on a more conceptual level, I would argue that we must rethink how privacy and technology interact. This is something which has been highlighted by the Covid emergency, but will remain a problem after that is resolved.

There are two aspects of concern here which require new legal approaches. First, there is often a lack of transparency in how technology is implemented in Australia. This may be a problem which can be remedied by a public education campaign to ensure that those affected by technology have at least a rudimentary understanding of how data is used by authorities and an understanding of their rights.

Second, given the nature of the information many people hold on their phones (photos, intimate messages etc) it could be argued that they are an extension of ourselves and are part of our private life, even perhaps part of our identity. This is because they reveal information that is reflective of our personal attributes. For instance, the types of dating apps on a person’s phone will reveal their sexual identity. Other information and apps may reveal  an individual’s political and religious beliefs. Mobile phones are therefore not simply ‘telecommunications devices’. This means that human rights law must reconceptualise the concept of privacy and a ‘private life’ to deal with this societal fact.

In terms of specific changes to existing regimes, I would highlight that Australia does not have a statutory, legally-enforceable right to privacy. Therefore, as the Castan Centre recommended in a recent submission to the Human Rights Commission’s Inquiry on Human Rights and Technology, a tort for serious invasion for privacy should be adopted. This would allow for better protection against intrusion and misuse of private information and serve as an accountability mechanism for governmental actions in this area.

Broader Reflections: Implications for human rights in Australia

I have discussed above a specific example of an area in which Australia needs to reform its protection of human rights, specifically the right to privacy.

However, I would argue as a more general proposition that Australia relies heavily for its human rights adherence on oversight and accountability mechanisms (such as parliamentary processes). Whilst some of those have continued to operate, it is becoming increasingly clear that we require greater entrenchment of our rights than our legal system currently provides.

The Castan Centre has long advocated for a federal Human Rights Charter. When we have defeated Covid-19, I would argue that this should happen.

I also wish to make some broader reflections about the implications for society of the current epidemic. Most people in Australia have never undergone such extensive personal restrictions on our freedoms as we are currently experiencing. It is my hope that this experience may lead  us to have some insight into the plight of others – to deepen our understanding of the human rights abuses that many marginalised and vulnerable people in Australia and elsewhere have faced and continue to face today. The government has said many times that we must come together as a nation. This is true. But we must also reflect on inequality and disadvantage in our society and come together as a nation to ensure our law protects us fairly and equally from those problems. 

*I wish to acknowledge the excellent editorial assistance and suggestions provided to me by Castan Centre Project Officer, Andrea Olivares-Jones in the preparation of this article.

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This post was originally published on Castan Centre for Human Rights Law.