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Legislative Assembly for the ACT: 2021 Week 10 Hansard (Wednesday, 6 October 2021) . . Page.. 2750 ..


through legislation, all of those actions and the human rights compatibility of them are scrutinised in the Scrutiny of Bills Committee, which is obviously not available when the parliament is not sitting and when processes do not go through the parliament.

Therefore, the statement that has been made today is not completely fulsome. I am not saying that the work has not been fulsome, but the public statement of the work does not include a justification for each and every action to show that it is reasonable and proportionate as per section 28 of the Human Rights Act. Section 28 in 3B says:

(1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(a) the nature of the right affected;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

It is so important in a human rights jurisdiction like the ACT that this is a public conversation. The whole purpose of our human rights model is that we conduct a publicly accessible conversation. If a conversation like that were a normal part of what has happened during the lockdown, then there may be less surprise about things like mandatory vaccination decisions that are being made by the government, because they could be explained under that justification. I am not saying that there is not a justification, but how that is justifiable under our Human Rights Act is not being publicly discussed. It is also why the Human Rights Commissioner has suggested that future health directives should be done through primary legislation because it is a more open and transparent process.

Certainly, there would be a great benefit in having a debate in this place on the decisions that were announced yesterday about frontline health workers. We can accept that human rights will be reduced at times, but this should be done in order to help the community cope with the fact that they are being required to do something which seems so intrusive and is not common in our system of government—for people to have a health treatment, whether they like it or not, essentially. People can leave their jobs, but the public health order to take a health treatment gets between their ability to do their jobs and their health. It restricts their self-determination about their health. So this is a really important part of our system.

I thank the minister for this initial statement from the Chief Health Officer, and I hope that we will improve in this area and have more open and publicly available statements as to the human rights justifications that have been undertaken about each and every health order as they are made. Thank you very much.

Question resolved in the affirmative.


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