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Human rights charter guides pandemic response: A-G

Human rights charter guides pandemic response: A-G

By Karin Derkley

Courts COVID-19 Justice 


Even in the face of the "wicked and infectious enemy" that is COVID-19, the government has continued to consider Victoria's Charter of Human Rights, Attorney-General Jill Hennessy said at the 2020 Higinbotham Lecture.

Challenging and difficult decisions had to be made by a small number of people using “very intensive interventionist, controversial, unprecedented legislative powers”. But the Charter had not been suspended, Ms Hennessy said in her keynote address at the annual lecture hosted by the RMIT Graduate School of Business and Law.

"In a pandemic such as this one the legal tools are very blunt. This is not a time of nuance and argument.”

"The changes show that for government to work effectively it has to work nimbly. We have to adapt quickly to the changing circumstances. We have to respond to risk. We have to respond to data."

Ms Hennessy praised the "tireless dedication" of those who have been working in the legal system to adapt to the restrictions.

"A decade of technological advances has occurred across the courts in just six months. We have seen that a significant part of the courts’ work can be done virtually. It hasn't been easy and it will continue to be incredibly challenging.

"We had to just make it work and people are working tirelessly to ensure that that is the case. It does demonstrate that we can be creative and ingenious when there is no other choice.

"I want to acknowledge the tireless dedication of so many of our judges and magistrates and those who glue the system together, our lawyers, those that work at administration, the specialist service providers and all of those that provide the important services around.

"As immensely challenging as this time is, it is a very important opportunity for us to ask who has been hit hardest by this and why, and what isn't working within our legal structures and what can we change for the better."

Responding to Ms Hennessy’s address, Centre for Innovative Justice associate director Stan Winford said the rapid adaptations showed that change in the legal system and in the courts did not have to be as "glacial" as might have been thought. "We have seen that there is great capacity for innovation in our system."

He said that within many of the specialist courts some of the changed practices had been beneficial, by removing some of the anti-therapeutic effects that people had previously experienced going to court.

But he also warned that without face to face contact, fewer people were being identified and referred to those courts. "There's a loss of a sense of engagement and the warmth that comes from (face to face contact)."

Also speaking at the lecture, RMIT Professor of Law Bronwyn Naylor said the fall in prison numbers during the pandemic had drawn attention to the question of why we are using detention and how we could use it more efficiently in future.

"Are we detaining the right people or are we detaining some of the wrong people? "The fact that more people are getting bail and that in many other jurisdictions prison numbers have decreased as people have been released, shows we need to be only using imprisonment where it's absolutely necessary."

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