On 27 October 2021, the Victorian government introduced the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 into the Legislative Assembly. The Bill, if passed, would give the Health Minister sweeping powers during a pandemic. Concerns have been raised about the potential of the new pandemic laws to undermine the usual checks and balances placed on parliamentary power. This article outlines what is proposed in the Bill, the criticisms that have been levelled at it and the rationale the government has given for the proposed changes.
What are the proposed pandemic laws?
Section 165AB of the Bill gives the Premier the power to make a pandemic declaration if satisfied that there is a serious public health risk arising from a pandemic or a disease with pandemic potential. The Premier must report to parliament when a pandemic declaration is made, varied or revoked. The declaration can be renewed for three months at a time, with no maximum duration.
Under the changes, once a pandemic declaration has been made, the Health Minister will have the power to make pandemic orders (section 165AI). The Minister may make any order he or she considers reasonably necessary to protect public health and must publish a statement of reasons for the orders made.
Orders that may be made under this power include:
- An order for the detention of a person or persons;
- Orders restricting movement;
- Orders restricting public or private gatherings;
- Orders requiring the provision of information;
- Orders for the medical examination of persons.
Pandemic orders may also be made to apply to a particular class of people including a class of people with an attribute protected from discrimination under Equal Opportunity legislation (for example, people with a particular political opinion).
The Bill provides for these orders to be disallowed by parliament, but only on particular grounds, such as incompatibility with the Charter of Rights and Responsibilities Act 2006.
The Bill also gives broad powers to Authorised Officers, who may under section 165BA, “take any action or give any direction, other than to detain a person, that the authorised officer believes is reasonably necessary to protect public health”.
It also provides for prison sentences and large fines for those who breach the rules.
Why are the new pandemic laws being proposed?
In the second reading speech for the Bill, Health Minister Martin Foley presented the legislation as a major reform designed to help the management of pandemics in Victoria in a transparent and accountable way built on the lessons learned from COVID. He said that the existing emergency powers under the Act are insufficient to deal with a pandemic on the scale of COVID as those powers are designed to deal with temporary emergency situations only. The State of Emergency declared under those powers cannot be extended beyond 15 December 2021 so new laws are needed.
The proposed laws ensure that public health decisions are made in consultation between the Premier, the Health Minister and the Public Health Officer. They provide for Authorised Officers to take action and give directions ‘on the ground’ and establish an Independent Pandemic Management Advisory Committee to provide advice on the exercise of pandemic powers.
Opposition to the Bill by lawyers
A group of prominent Victorian barristers has delivered an open letter to the government about the Bill and the letter was published in the Age on 29 October 2021. The 14 lawyers argue that the Bill risks creating a situation where the Victorian government rules by decree, with the Minister having unlimited power to make ‘pandemic orders’ at any time a pandemic declaration is in place. Given the nature of the COVID-19 pandemic, this is likely to mean that the Minister will have this power for the foreseeable future.
The letter penned by the lawyers further argues that the Bill gives extraordinary powers to Authorised Officers to give directions that are effectively unreviewable. The lawyers expressed their concern that while rule by decree is allowed under existing powers that are designed to be exercised on a short-term basis when a public health emergency occurs, the proposed laws “entrench rule by decree as a long-term norm”. They argue that the Bill is undemocratic and that any new legislation enacted should confer the power to do specific things such as order lockdowns or close borders and that those powers should be subject to unconditional parliamentary disallowance.
Other public responses to the proposed new pandemic laws
The Victorian Opposition Leader Matthew Guy has called the Bill an attack on democracy and said it is unprecedented to place so much power in the hands of a single person. However, the Human Rights Law Centre has reportedly provisionally endorsed the laws, saying they contain human rights and democracy safeguards.
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