Human rights were violated during Covid

Ask any Australian why they got vaccinated against Covid.

“I had to get it to keep my job.”

“I needed to travel interstate to bury my dad.”

“I needed to visit my mum in hospital.”

A conversation I will never forget - a woman tearing up when she told me it felt like rape, agreeing to an injection that she didn’t want (she would have lost both of her jobs without it).

Another vignette burned in my memory - a family who were prevented from seeing their grandfather in aged care for two years because they weren’t vaccinated. He caught Covid from the vaccinated nurses or visitors and died. They were only allowed inside afterwards, to view his body.

Sure, some were scared of the virus or wanted to do the right thing, but in the country with the strictest vaccine mandates in the world, many Australians really got vaccinated against job loss or separation from loved ones. Of those who didn’t get vaccinated, some lost everything except for their integrity.

Covid measures impacted everyone, everywhere. Be it lockdowns, border closures, quarantine rules, social distancing, vaccine mandates, mask mandates, school closures, business restrictions, or police brutality, we’ve all got a story to tell.

Now, the Australian Human Rights Commission (AHRC) wants to hear your stories.

Australians are invited to share their personal stories with the Commission about how they were impacted by local, state and federal Covid measures, as the Commission “seeks to understand the impacts of pandemic responses on aspects of daily life such as health, family and employment.“

Four and a half years into the pandemic response, I thought they’d never ask.

The AHRC says that its review of the human rights impacts of Australia’s Covid response will “support the development of a human rights emergency and disaster framework to improve responses to future emergencies and disasters in Australia.”

Australians can submit their stories to the AHRC Covid measures impact review.

During Covid, human rights strangely went out of fashion, particularly on the left of politics, where human rights have traditionally been a core concern.

In Australian legal cases alleging human rights breaches during Covid, judges have tended to agree that human rights were breached, but have argued that this is ok because the emergency justified it.¹

This argument is not without basis. Under human rights law, not all rights are absolute. Absolute rights, such as the right to be free from torture or the right not to be held in slavery, cannot be suspended under any circumstances.

Other rights can be suspended or subject to limitations in special circumstances, such as an emergency. This distinction is called ‘derogability’. Broadly speaking, derogable human rights can be suspended or infringed upon in the right circumstances (such as an emergency), whereas non-derogable human rights must not be.²

During Covid times in Australia, the dispute has centred around whether rights are derogable, and the proportionality of emergency measures taken.

Restrictions based on vaccination status are an example of the argument over derogability. Under the International Covenant on Civil and Political Rights (ICCPR), which Australia is a party to, the right to freely consent to (or freely refuse) medical or scientific experimentation is non-derogable.

Additionally, informed consent for all medical procedures (experimental or not) is a core principle of medical codes of conduct, underscored by common law precedent. The case of Rogers v Whitaker (1992) in which Mrs Whitaker successfully sued her doctor for not adequately informing her about the risks of vision loss associated with her scheduled eye surgery (unfortunately Mrs Whitaker lost total vision due to the surgery) established the legal principle for informed consent.

As readers well know, Australians had some of the most coercive Covid vaccine mandates in the world. Combined with lack of transparency about the full risk profile, and with no medium or long-term safety data available, most Australians were pressed into a medical experiment without informed consent. Yet, Australian judges have tended to treat this non-derogable right as derogable.

International Covenant on Civil and Political Rights 1976, United Nations

Where rights are considered derogable, proportionality must be considered to justify their suspension or infringement. Were Covid measures and concomitant human rights infringements proportional? This obviously depends on whether you think zero-Covid to be a reasonable policy position, whether you believe that mental and emotional health matter, whether you measure the harms as well as the benefits of interventions, whether you believe banned treatment options would have been effective, and whether you think public health policies were actually effective.³

One of the few professionals to speak up about human rights violations in Australia’s Covid response from the beginning is human rights lawyer Peter Fam, of Sydney firm Maat’s Method.

In testimony provided to a Senate inquiry into Terms of Reference for a prospective Covid Royal Commission earlier this year, Fam noted that the Australian Covid response breached numerous human rights treaties that Australia is a party to.

This has resulted in “unprecedented impositions on the rights enshrined in the Core Treaties as well as domestic law,” said Fam, calling for “a full and comprehensive assessment” of human rights for the purpose of assessing whether Australia has upheld its obligations under international rights law.⁴

The AHRC’s pandemic measures impact review is just the beginning in this respect.

In an email exchange about the AHRC review, Fam told me that Australia’s Covid response, “exposed the impotency of Australia’s legal mechanisms for protecting fundamental human rights.”

“Liberty of movement; the right to freely consent to medical procedures; the right not to be discriminated against; even the cardinal right of self-determination: all of these were promptly and firmly put on hold whilst desperate individual citizens were declared powerless to do anything about it."

Fam argues that the government’s disregard for human rights during the Covid era is not an aberration, but is a continuation of Australia’s legacy.

“This approach may be consistent with Australia’s illegitimate founding as a prison colony on fraudulently declared vacant land, but it is still a damning inditement of any progress the Government claims has been made in the 250 years since.

“Importantly, it is a lesson all Australians should remember: do not rely on the Government to recognise your human rights. Historically, it has always been up to the people to advocate for themselves. This means individuals and communities of individuals supporting themselves and avoiding dependency on external systems and frameworks that can be used as leverage against them.”

Australians aged 18 years old and over can submit their stories to the AHRC Covid measures impact review. Stories must be no longer than 1,000 words.

Consultation closes midnight Sunday 30 June 2024.

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1. For example, Kassam v Hazzard (explained here), Falconer v Commissioner of Police (explained here).

Even in cases where judges have ruled in favour of those whose rights were breached, it has come down to procedural technicalities, not the core principle. For example, a Queensland Supreme Court judge overturned the Police Commissioner’s vaccine mandate not because it infringed on the police workers’ human rights, but because the Commissioner did not go through the right procedural steps in going about the human rights infringement.

2. Acknowledging that the terms ‘absolute’ and ‘non-derogable’ are not interchangeable, but that non-derogable rights encompass absolute rights. There are pedantic arguments for derogating non-derogable rights under special circumstances, however it is not within the scope of today’s article to get into the weeds on this matter.

3. Very few attempts have been made to quantify the pros and cons of Australia’s Covid response, but where the accounting has been done, it lands squarely on the side of net harm. UNSW economics professor Gigi Foster estimated that the Covid response cost 68 times more than the benefits delivered (measured in wellbeing life years, or WELLBYs), and conservative think tank the Institute of Public Affairs (IPA) estimated that 31 time more life years were lost than were saved from the first nationwide lockdown alone (March and April 2020).

4. “On the international stage, Australia has asserted itself as among the leaders in becoming a party to and advocating for the core international treaties and covenants. Australia was one of only eight nations involved in drafting the Universal Declaration of Human Rights. In addition, Australia as a nation is a party to the seven core international human rights treaties. These are:

1. the International Covenant on Civil and Political Rights (ICCPR)

2. the International Covenant on Economic, Social and Cultural Rights (ICESCR)

3. the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

4. the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

5. the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

6. the Convention on the Rights of the Child (CRC)

7. the Convention on the Rights of Persons with Disabilities (CRPD).”

Quoted with permission from Peter Fam’s response to questions on notice from the Covid Royal Commission Terms of Reference Inquiry.