How a lack of foresight in Australia’s COVID-19 pandemic response exposed a gap in measures to protecting the right to health.

By Monique van Cauwenberghe, LLM student International Human Rights Law, University of Groningen, m.van.cauwenberghe student.rug.nl. 

Introduction

In Australia, the COVID-19 death rate for those from a migrant background was reportedly more than twice as high than for individuals who were born in Australia.[1] The impact of the COVID-19 pandemic has placed a spotlight on the barriers of information accessibility (particularly relating to language and information dissemination issues) to health information and healthcare services amongst individuals from migrant backgrounds, yet within Australia this is by no means something new. While such barriers may add to a higher risk of hospitalisation and death, it should be noted that this is not the only contributing factor, nevertheless it warrants a closer analysis.[2] This blog will examine how Australia’s response to the COVID-19 pandemic displays a lack of foresight in addressing barriers of information accessibility for individuals from migrant backgrounds. In doing so, it demonstrates how Australia has fallen short of its obligation under article 2 and 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), to ensuring access to information relating to health services in a non-discriminatory manner.[3]

Legal basis of the right to health

There are several international binding and non-binding instruments that provide a sound legal framework for the protection of the right to health. This analysis will focus on article 2 and 12 of the ICESCR, which outlines that the right to health, including physical and mental health, should be accessible to everyone and without discrimination.[4] Article 2(2) of the ICESCR also explicitly outlines language as a possible source for discrimination.[5] As a party to the ICESCR, Australia has an obligation to respect, protect and fulfil the rights outlined within the Covenant.[6] While the ICESCR requires progressive realisation of right to health, States must ensure the implementation of minimum core obligations which should be of an immediate effect, which also entails the non-discrimination of such rights.[7] Importantly, this outlines the connection between the right to health and the obligation to immediately implement non-discriminatory measures, such as language accessibility through policy measures. Information accessibility refers to the ‘right to seek, receive and impart information and ideas’.[8] It should be done in a way that information is able to reach everybody equally.[9] Indeed, the World Health Organization in its report ‘WHO’s Response to COVID-19’ highlights that a lack of information or accessibility to health and health services is an exacerbating factor to COVID-19.[10]

Information accessibility and the right to health

While Australia’s health system response to the COVID-19 pandemic has demonstrated positive aspects, there, nevertheless, remain gaps amongst certain vulnerable population groups in their access to healthcare. Certainly, it can be said that the pandemic exacerbated a pre-existing problem.[11] Notably, obstacles include language barriers and interpretation needs, without which can lead to a lack of awareness about the healthcare system, subsequently contributing to health inequalities and the spread of misinformation.[12] In a study by Grey and Severin on multilingual communication policies, such as the NSW Plan for Healthy Culturally and Linguistically Diverse Communities: 2019-2023,[13] with a particular focus on the State of New South Wales, it was concluded that, even among other states, there remained inconsistent policy on this matter.[14] As such, these policy issues were seen materialising as barriers in accessing information. While certain local and state government multilingual communications platforms and services exist, many were not available from the beginning of the pandemic, yet once developed, many noticeable issues remained.[15] Concerns that were raised included doubts that information was still not reaching specific communities, and that certain information remained incoherent.[16] Indeed, the ICESCR Special Rapporteur on the right to health noted that information and access to healthcare services should be provided in a clear language and format that is able to provide the same outcomes on an equal basis with others.[17] Indeed, in order for Australia to align with international standards, further should have been done, in particular, concerning the obligation to fulfil human rights, which requires that States take positive measures towards achieving these rights, regardless of language or community background.

Considering this, within its General Comment No. 14, the Committee on Economic, Social and Cultural Rights (CESCR) offers four key guideposts to facilitate implementing the right to health.[18] Known as the ‘AAAQ’ framework, it aims to ensure healthcare services are available, accessible, acceptable, and quality, and although it is not legally binding, it can be argued as authoritative.[19] Adopting the AAAQ framework can help policy makers to pinpoint necessary elements when drafting measures.[20] Similarly, this approach could be applied to providing non-discriminatory information on health and services. It can be argued, by ensuring that policy measures align with this framework, noticeable gaps would not be overlooked. Issues in accessibility, for example difficulties in navigating English language websites to locate translated content, may subsequently be addressed.[21] Consequently, by not eliminating discrimination immediately for information accessibility from healthcare services, Australia is in violation of its obligation to fulfil under the ICESCR.[22]

Conclusion

The identified barriers in information accessibility, notably, language and information dissemination issues, have visibly been linked to issues of health inequality. As one such contributing factor, Australia has seen a very regrettable consequence in the COVID-19 death rate for those from migrant background. Australia has a clear obligation, in particular, for the immediate implementation of non-discriminatory measures. As such, it is recommended that the Australian government utilise the AAAQ framework when developing and distributing health information and services. However, for now, Australia falls short of upholding its obligations to the right to health.

[1]‘COVID-19 Mortality by wave’ (Australian Bureau of Statistics, 16 November 2022) <https://www.abs.gov.au/articles/covid-19-mortality-wave#overview > accessed 21 December 2023.

[2] Sally Hayward et al, ‘Clinical outcomes and risk factors for COVID-19 among migrant populations in high-income countries: A systematic review’ (2021) 3 Journal of Migration and Health 2.

[3] International Covenant on Economic, Social and Cultural Rights (ICESCR) (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3.

[4] Committee on Economic, Social and Cultural Rights, ‘General Comment No. 14 on The Right to the Highest Attainable Standard of Health (Art. 12)’ adopted 11 August 2000 UN Doc E/C.12/2000/4 para 2.

[5] ICESCR (n 3).

[6] Committee on Economic, Social and Cultural Rights (n 4) para 33.

[7] Committee on Economic, Social and Cultural Rights, ‘General Comment No. 3 on The Nature of State Parties’ Obligations (Art. 2, Para. 1, of the Covenant)’ adopted 14 December 1990 UN Doc E/1991/23 para. 1.

[8] Committee on Economic, Social and Cultural Rights (n 4) para 12.

[9] Committee on Economic, Social and Cultural Rights, ‘General Comment No. 20 on Non-Discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights)’ adopted 2 July 2009 UN Doc E/C.12/GC/20 para 3.

[10] ‘Looking back at a year that changed the world: WHO’s Response to COVID-19’ (World Health Organization, 22 January 2021) <https://www.who.int/publications/m/item/looking-back-at-a-year-that-changed-the-world-who-s-response-to-covid-19> accessed 22 December 2023. 

[11] Alexandra Grey, 'Communicative Justice and COVID-19: Australia's Pandemic Response and International Guidance' (2023) 45 Sydney Law Review 1.

[12] United Nations Commission on Human Rights (UNCHR) ‘Final Report Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Dainius Puras’ (2020) UN Doc A/75/163 para 36.

[13] NSW Health, NSW Plan for Healthy Culturally and Linguistically Diverse Communities: 2019-2023 (2019).

[14] Alexandra Grey (n 11). See also Alexandra Grey and Alyssa A Severin, 'An Audit of NSW Legislation and Policy on the Government's Public Communications in Languages Other than English' (2021) 31 Griffith Law Review 25.

[15] Alexandra Grey (n 11).

[16] Rachael Dexter, ‘COVID-19 information bypasses Melbourne’s non-English speakers’ (The Age, 17 May 2020) <https://www.theage.com.au/national/victoria/covid-19-information-bypasses-melbourne-s-non-english-speakers-20200517-p54tq4.html >accessed 21 December 2023.

[17] UNCHR ‘Interim report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ (2018) UN Doc A/73/216, para 46.

[18] Committee on Economic, Social and Cultural Rights (n 4) para 12.

[19] ibid. para 12.

[20] Marlies Hesselman, Antenor Hallo de Wolf, Brigit Toebes (eds), Socio-Economic Human Rights for Essential Public Services Provision (Routledge, 2017) ch 16.

[21] Alexandra Grey (n 11).

[22] Committee on Economic, Social and Cultural Rights (n 7) para 10. See also Mariette Brennan, 'The Good, the Bad and the Unhealthy: An Assessment of Australia's Compliance with the International Right to Health' (2015) 39 University of Western Australia Law Review 373.How a lack of foresight in Australia’s COVID-19 pandemic response exposed a gap in measures to protecting the right to health.