Melbourne’s COVID-19 Public Housing Lockdown Breached Human Rights

Photo by Weyne Yew on Unsplash (https://unsplash.com/photos/PCbpcMAY_ew)

What occurred?

A state of emergency was declared by the Victorian government on 16 March 2020. Under the relevant legislation, this designation granted new powers to the government, such as the power to restrict movements of the public, and the ability to detain persons within an emergency area.

How are human rights protected in Victoria?

Under the Charter of Human Rights and Responsibilities Act, it is unlawful for public authorities and government departments to not give adequate consideration to a relevant human right when making a decision.

“In a just society, human rights are not a convention to be ignored during a crisis, but a framework for how we will treat and be treated as the crisis unfolds.” — Victorian Ombudsman

Findings of the investigation

Although the Ombudsman conceded that Victoria’s charter recognises that human rights may be subject to reasonable limitations, findings showed the Victorian Government fell short of the required standards in many areas.

  1. Specific processes for residents to access fresh air and exercise during the first phase of the lockdown were absent. When exercise was allowed, it was contained to an area enclosed by temporary fencing. This was likened to a cage or prison, as they were also surrounded by police.
  2. The large numbers of police utilised to enforce the lockdown was described as being unnecessary and insensitive by both residents and health workers.
  3. Significant problems were identified with the provision of medical supplies to residents during the lockdown, including a dedicated hotline for medical supply requests being overwhelmed within the first few days of operation.
  4. Qualified interpreters were not available during the initial enforcement of the lockdown.
  5. Reasons for implementing the lockdown on the same day the directions were given were not clear. An immediate lockdown was not recommended by the DCHO, who anticipated that the operation would commence after further preparation.
  6. The DCHO had less than 15 minutes to consider the human rights implications of the lockdown order before the operation was to be announced. The 15 page assessment provided to her did not include any alternatives, or any explanation why it was considered necessary to detain residents immediately without warning. Evidence suggested that the decision to impose the lockdown was taken by the Cabinet two hours earlier, without any input from the DCHO.

 

All of these shortcomings in combination were found to constitute an incompatibility with the right to humane treatment when deprived of liberty. The Ombudsman also concluded that proper consideration was not given to the human rights of persons affected by the tower operation.

The response of the Victorian Government

Although the Ombudsman has the investigative powers of a royal commission, it can only provide the government with recommendations, which it can either accept or reject.

“I saw a journalist taking some pictures and I asked him why, and he told me the towers would be in lockdown in half an hour” — Tower resident

Did it save lives?

The report states that the Department of Health and Human Services considered the hard lockdown to be extremely effective at containing the tower outbreak of COVID-19. They also commented that the active case data showed a rising trajectory of infections throughout other hotspots in Victoria that would have likely been replicated if the intervention in the towers did not occur. This is reflected in the graph below.

Source: Victorian Ombudsman report p 162

Main takeaways

  • Residents of the towers were not afforded the right to humane treatment while being deprived of their liberty during the hard lockdown.
  • The government failed to give proper consideration to the human rights of tower residents affected by the hard lockdown.
  • The government did not accept the first recommendation of the Ombudsman’s report, being that residents of the towers should receive an apology.
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