2021 report on the operation of the Charter of Human Rights and Responsibilities – December 2022

2021 was another year of major upheaval in the lives of Victorians as they adapted to the Victorian Government’s public health responses to the COVID-19 pandemic.

The 2021 report on the Charter continues to focus on the impact of COVID-19 and provides an update on the Charter issues that emerged in 2021 in relation to additional measures the Victorian Government took to protect Victorians.

“Recovery from the COVID-19 pandemic will require care, compassion and close cooperation across all sectors. With strengthened transparency, scrutiny and accountability for decision-making, we can maintain an ongoing focus on protecting the rights of all Victorians and continue to provide support to those in our community who need it most.”

— Ro Allen, Victorian Equal Opportunity and Human Rights Commissioner

Throughout 2021, the Charter has provided an important framework to guide good lawmaking, develop and implement policy, make government decisions, and guide the courts’ interpretation of laws. It also proved to be a critical instrument for determining what can be considered ‘reasonable and proportionate’ amid an emergency.

The Charter ensured that people retained their ability to challenge government decisions in the courts on Charter grounds and complain about rights-inconsistent treatment to relevant authorities.

The new pandemic management framework established through the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 better reflects human rights principles through the

inclusion of additional safeguards that promote transparency, accountability and scrutiny. This will better protect the rights of all Victorians, not only for this pandemic but for any future pandemics.

The Commission will continue to consider the human rights impacts of the pandemic, including for communities affected by disadvantage and inequality. This will help to ensure that human rights continue to be safeguarded in the pandemic recovery.

• The Charter promotes human rights during public emergencies.
  The operation of the Charter ensured that public authorities considered and acted in accordance with human rights in decisions made by them to introduce and update public health measures, as well as in the implementation of public health orders.
• The new pandemic framework law improves transparency, scrutiny, and accountability.
  The new pandemic framework improved the transparency, scrutiny and accountability of public health measures when compared with the emergency powers that had previously been used. The new framework is also clear on how the Charter applies to the making of pandemic orders.
• The community wants to understand the reasons for limiting rights.
  The Commission encourages the government to explain in human rights terms why decisions to limit rights are being made, to build trust and confidence.
• The pandemic has a disproportionate impact on communities that are already experiencing disadvantage.
  Decision makers must be aware of the disproportionate impact of public health measures on vulnerable communities and proactively assess the human rights impacts of any measures on a case-by-case basis, considering any less restrictive options available in the circumstances, to ensure public health measures do not exacerbate disadvantage.
• Children and young people must be at the heart of public health measures that impact them.
  The Commission encourages decision makers to prioritise the rights of children and young people (including the right to protection in their best interests), in future pandemic responses.

The 2021 Charter report is primarily divided into two parts:

Part 1 – Overview: The Charter in 2021

The first part of this report provides an overview of the operation of the Charter in 2021, including how it was used by the Victorian community in the courts, and in enquiries and complaints made by people to the Commission and other relevant agencies.

2021 was a year that saw street protests surge in response to lockdowns, vaccination mandates and the development of new pandemic-specific emergency legislation.

Part 2 – The Charter and public health measures

The second part of this report highlights three areas where this impact was significant in 2021:

• Border closures – which looks at the Victorian Ombudsman’s investigation into the Department of Health’s decision-making around the Border Directions.
• Mandatory vaccinations – which examines vaccination mandates imposed to protect lives and promote health and safety, highlighting vaccination supply and access issues, and the experience of different cohorts in obtaining the vaccine.
• Children and young people – which considers the impact of public health issues on children and young people in 2021 and centres on the role the Charter plays in supporting decision-making that is in the best interest of children and young people