The Victorian Government’s nightly curfew, which effectively places Melburnians in home detention, constitutes in my view a serious violation of human rights.
Given the Victorian Chief Health Officer has confirmed there is no health rationale for the curfew and this was not something he ever recommended, I believe the curfew does not comply with Australia’s obligations under international human rights law or the Victorian Charter of Human Rights.
The curfew is set out in Clause 1AF of Stay at Home Directions (Restricted Areas) (No 14) as authorised by the Deputy Public Health Commander Dr Finn Romanes pursuant to Section 200 of the Public Health and Wellbeing Act (the Act). Dr Romanes is authorised to exercise emergency powers by the Chief Health Officer under section 199(2)(a) of the Act.*
The curfew should be immediately revoked. We are not living in 1960s East Germany or some other police state. There is simply no legitimate basis for such draconian laws which transgress Victorians’ basic freedoms and liberties.
The Premier’s justification for the curfew – that it assists Victoria Police to enforce a distilled set of lockdown laws – does not stack up.
Laws which limit the right to freedom of movement and liberty in order to control the entry, establishment or spread of COVID-19 may be justifiable if they protect the right to life and health. However, international human rights law recognises that these limitations must in pursuit of a legitimate objective; be rationally connected to their stated objective and be proportionate to the objective sought to be achieved.
As a matter of human rights law, a nightly curfew which prevents Melburnians from leaving home except for work or to get or provide urgent care is not rationally connected to its stated objective (ease of police enforcement according to public statements by Premier Daniel Andrews) or proportionate to the objective sought to be achieved.
That the curfew is made pursuant to public health emergency powers only, and not on public order or policing grounds, supports this conclusion.*
Background note: Across Victoria, there are currently only four categories of reasons to leave home which are justified on public health grounds as authorised by the Chief Health Officer under his emergency powers. To be clear, I am not suggesting that these laws constitute a breach of human rights because it is arguable, though not certain, that they are rationally connected to their stated objective (to prevent the spread of COVID-19) and are proportionate to the objective sought to be achieved.
10 September 2020
(*Statement updated with these paragraphs on 11 September 2020.)