THE LEGAL PERSPECTIVE ON THE LIMITATION OF RIGHTS TO FREEDOM OF MOVEMENT AND PRIVACY

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The Legal Perspective on The Limitation of Rights to Freedom of Movement and Privacy

1. Introduction

With the onset of a global pandemic late in 2019, countries and states worldwide were sent into lock downs that demanded people stay home and not move as freely as they were previously allowed to move about. This measure of the detention of citizens by states was both a legal and scientific attempt to curb the spread of the highly infectious COVID-19 virus. Legal bodies and authorities such as state governments and international health organizations all agreed that the best ways to curb the spread of the virus would require states to set limits on certain human rights such as the right to freedom of movement. These said bodies also seemed to agree that although contact tracing was a measure that threatened individual privacy, it was critical for the monitoring and minimization of the spread of the virus. However, any legal limitations imposed on citizens were required to be deemed and proven to be absolutely necessary, lawful, proportionate and scientifically justified (Wilson 2020). This report finds that according to the Australian Government and the Australian Law Reform Commission, the limitation of rights of movement and privacy imposed on the nationals of Australia following the break out of the COVID-19 global pandemic was not only legally and scientifically justified but was also necessary for the preservation and protection of public health and public safety.

2. Limitation of Liberty During Pandemic: A Perspective of Australian Law

According to the Commonwealth laws and the Australian Capital Territory Legislation, in certain instances and circumstances, the enforcement of laws that interfere with the traditional rights and freedoms of humanity is necessary. The Australian Law Reform Commission in one of their publications explained that in times when circumstances cause important human rights to clash, then reasonably limiting some of those rights for the good of the public interest or even for individual interest can be accepted as the optimal legal decision a government can make and take. For example, during the pandemic, the rights of freedom of movement and privacy have been deemed to clash with the right to safety, security and health (Fahey and Hino 2020; Wilson 2020).

3. Distributive Justice in Times of Pandemic

Simply described, distributive justice refers to the state in which resources are shared and allocated fairly and equally among all members of a community. In the times of a pandemic, distributive justice would demand that all members of the community enjoy equal and fair access to healthcare and the finite healthcare resources. Governments and state health ministries of Australia and other states worldwide in an effort to ensure that their health care systems could support the high streams of patients that would need treatment for COVID-19 were required to ensure that resources such as ventilators, hospital beds, intensive care units and other vital healthcare resources were fairly distributed among all members of society without any form of bias or discrimination. However, establishing distributive justice in times of a pandemic can also be somewhat challenging as controversial questions arise on how the term fairness is described when sharing the finite medical resources (Cheung and Parent 2020 p.2).

4. Rights to Health and Rights to Freedom of Movement

Both the rights to freedom and the right to health are critical human rights that carry almost the same weight. The rights to health in a pandemic include both the right to access the finite medical resources whenever required as well as the right to be kept safe and protected. As a result, the legal requirements that called for actions such as lockdowns, closure of national borders, banning of international and local travel and other free-movement activities as well as calling for quarantines and self-isolation were all limiting measures taken to preserve and protect the right to health at the cost of the right to the freedom of movement for a finite duration of time (Wilson 2020).

5. Legal Justification to Prioritize the Rights to Health

To avert the adverse effects of the pandemic, Australian government and the Australian health systems recognized and accepted that detention of citizens was necessary to curb the spread of the virus. Individuals were advised and legally coerced to stay quarantined until the healthcare system determines it was safe for people to resume life as it was before the pandemic. Contact tracing, a measure now regarded as highly intrusive and invasive was suggested as the most effective and efficient way of identifying and tracing suspected infected persons and isolating them to prevent further spread of the virus. Evidently, some of the legal tactics embraced to counter and manage the spread of the deadly virus have adverse and unwelcome impacts on human rights but are necessary and thus legally justified (Wilson 2020).

6. Ethical Justification to Prioritize the Rights to Health

Legal actions taken to curb and control the spread of COVID-19 in Australia and in the rest of the world have often been described as measures taken for the greater good of the broader public. Ethically, this approach is commonly referred to as the utilitarian approach whereby decisions are made based on the greater good or the decision that causes the highest happiness at the least cost of discomfort. Therefore, limiting the freedoms of movement and privacy for a finite duration of time only until the pandemic subsides is a decision that is ethically justified according to the utilitarian theory of ethics. Therefore, ethically, it is considered fair and crucial that the rights to health are prioritized above the rights to freedom of movement and he right to privacy because doing so is considered life-saving (Marseille and Kahn 2019, p.2; Robert et al. 2020).

7. Conclusion

As aforementioned, legally, and also according to the Australian Government, the limitation of rights of movement and privacy imposed on the nationals of Australia following the break out of the COVID-19 global pandemic was not only legally justified but also necessary for the preservation and protection of public health and public safety as long as it was done legally proportionately and procedurally. Unfortunately, while the enforcement and practice of some of these limitations may have been performed unethically or even unfairly when no one was watching, the laws set were not meant to infringe unfairly and unlawfully against crucial human rights of certain groups or marginalized individuals but simply to promote the enhancement of other human rights deemed more urgent during the pandemic. The rights to life, healthcare, security and public safety are found to be far more superior than those of freedom of movement and privacy at such times. As such, this report found that limiting the rights of freedom of movement and the rights of privacy for finite durations was legally and ethically justifiable (Wilson 2020).

References

Cheung, A.T. and Parent, B., 2020. Mistrust and inconsistency during COVID-19: considerations for resource allocation guidelines that prioritise healthcare workers. Journal of Medical Ethics.

Fahey, R.A. and Hino, A., 2020. COVID-19, digital privacy, and the social limits on data-focused public health responses. International Journal of Information Management, 55, p.102181.

Marseille, E. and Kahn, J.G., 2019. Utilitarianism and the ethical foundations of cost-effectiveness analysis in resource allocation for global health. Philosophy, Ethics, and Humanities in Medicine, 14(1), p.5.

Robert, R., Kentish-Barnes, N., Boyer, A., Laurent, A., Azoulay, E. and Reignier, J., 2020. Ethical dilemmas due to the Covid-19 pandemic. Annals of intensive care, 10(1), pp.1-9.

Wilson, K., 2020. The COVID-19 pandemic and the human rights of persons with mental and cognitive impairments subject to coercive powers in Australia. International journal of law and psychiatry, 73, p.101605.