The Victorian government’s latest pandemic legislation, the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 has been the subject of some serious concern within the legal profession.  In an open letter signed by some of Victoria’s leading silks it states:

The overriding concern is that the Bill, if passed, may allow the Victorian government effectively to rule the State of Victoria by decree for the foreseeable future, without proper Parliamentary oversight or the usual checks and balances on executive power.

The Rule of Law Education Centred interviewed Mr Chris Blanden QC, President of the Victorian Bar Association regarding this Pandemic Bill.  The video can be accessed below:

In the interview Mr Chris Blanden QC states:

This is legislation, that any sensible person reading it would agree, has very extensive powers given to the government and .. those powers on occasions are necessary .. but this is in enshrining in legislation powers without the necessary checks and balances.  It is a mystery why this has to be pushed through so quickly and why there hasn’t been time given to discuss, debate etc how those powers should be .. controlled by the parliament.

Quick History lesson

Giving special powers in times of an emergency is not a new concept

The Hon Austin Ashe AC QC explains that in Ancient Roman times even the most fervent democracy (republicans) supporters accepted that ’emergency powers’ be given to one person to deal with a danger quickly and efficiently. When the danger had passed, the leader would then hand the power back to the people.  When power was not handed back, the consequences were not pretty.. think Nero, Caligula.

He states:

The ancient Romans, after the expulsion of the Tarquins, became stout republicans.  But they accepted the situation that, in times of danger, the State might be run temporarily by one person who could mobilise resources quickly and efficiently. They would elect a ‘dictator’ which is the first use of the term, and at that time meant no more than ‘leader’, with special powers which he was expected to relinquish when the danger had passed. And he did. The famous Fabuis Maximus Cunctator, having finally defeated the Carthaginians under Hannibal, handed his power back to the Republic and retired to his Sabine farm. Later Romans were not so lucky and they ended up getting loveable characters like Nero and Caligula.

In more modern times, French philosopher Montesquieu wrestled with an autocratic ruler, Louis XIV.  Montesquieu believed that the concentration of power in a single person or group of people was a threat to liberty and believed checks and balances were needed. He said:

Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go….To prevent this abuse, it is necessary from the very nature of things that power should be a check to power….When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner

History tells us that emergency powers are necessary but must be time limited with checks and balances. We should heed the words of Lord Acton in his famous phrase ‘all power tends to corrupt and absolute power corrupts absolutely.’

Q&A on the proposed pandemic bill

Will lockdowns continue in this new Bill?

The Premier and Health Minister will have absolute, unreviewable power to indefinitely keep Victorians in lockdown.

This can be done even if there are zero cases in Victoria and can be for an indefinite period of time.

The good news is, the Premier will give you the reasons as to why he believes it is an emergency- but sadly you (or anyone else in Parliament) cannot disagree with his reasoning as long as he is satisfied there is a serious risk to public health from the (potential) pandemic.

Will there still be rules limiting what I can and cannot do?

The Health Minister can make rules (called Pandemic Orders) to protect everyone from the (potential) pandemic. The primary consideration in making the rule will be whether they are reasonably necessary to protect public health.  The Chief Health Officer will provide advice and this advice will be made available to the public.

The rules have not been limited in any way and will continue to be broad reaching and can restrict movement, require masks, or require persons to be subject to detention or quarantine requirements.

If I have a disability, can I be discriminated against?

A Pandemic Order can be directed to specific groups or class of persons. This means it can discriminate against those at most risk of getting the virus such as those in aged card facilities, people in detention facilities, Aboriginal and Torres Strait Islander people and people with a disability and can specifically cancel or restrict their rights in order to protect the health of the wider community.

Who else will have new powers?

The new rules also allow Authorised Officers such as police officers, Worksafe inspectors and health service providers to take actions and give directions that they believe are reasonably necessary to protect public health.

This will give an individual Authorised Officer the power to restrict movement, detain a person for a period, provide information or even shut down a political protest- so long as they believe it is reasonably necessary to protect public health.

Individuals must provide information to an Authorised Officer, regardless of whether it would implicate them in a wrongdoing.

Their power is unreviewable.

Who will check the rules (Pandemic Orders) are fair and reasonable?

When Pandemic Orders are made, the Health Minister will provide a statement of reasons as to why human rights such as right to movement, right to privacy, right to peaceful assembly and been limited.

Rather than the usual cross party parliamentary committee (ie MP’s from different political parties) to oversee and provide parliamentary oversight of the Pandemic Orders, there will also be an internal government body, controlled by the Premier, that will review the Pandemic Orders, recommend disallowance on narrow grounds, and make recommendations regarding any human rights that are unduly impacted.

A second body, called an Independent Pandemic Management Advisory Committee, made up of human rights, public health and community representatives will also consider the impact of the pandemic orders and table a report in parliament.  The committee can only make recommendations.

What if I get caught breaking a Pandemic Order?

Maximum fines: $21,909 (previously $1,817) for an individual breaking Pandemic Order, $109,044 (previously $10,904) for a business

However if you are caught deliberately breaching a quarantine order that has the potential to result in serious risk to health, then you could be fined up to $90,500 or two years imprisonment. Businesses could be fined up to $452,500 .

If I am unhappy with a Pandemic Order how can I complain?

Pandemic Orders will be lawful so long as the Health Minister believes they are reasonably necessary to protect public health.  It will be very difficult to prove in a court case that the Pandemic Orders are unlawful so long as the Minster believes they are reasonably necessary to protect public health.

Petitions and letters to MP’s will have some value but as the decisions of the Premier and Health Minister are not open to debate or scrutiny, your voice may not be heard.

Protests have not been expressly disallowed but can still be stopped by the Health Minister or Authorised Officer if they believe it is reasonably necessary to protect public health.

Why is this bill needed?

Under the current law, the state of emergency cannot be extended beyond 15 December 2021.  To continue to protect the public health of Victorians a new bill is required.

It is questionable why a bill with such broad reaching powers for an unknown threat in the future is needed right now, when a new specific bill could be introduced that reasonably and proportionally deals with the current pandemic based on the lessons learnt in the last 18 months.  If in the future, new powers are needed for a new threat, a new law with backing from both house of parliament can be made to provide appropriate powers relevant to the threat.

How could the bill be improved?

Victorian Bar Association Recommendations

In their submission to the Department of Health and Expert Reference Group, the Victorian Bar Association made clear and logical recommendations for amendments to the Bill.

The essence of the Victorian Bar’s concern is that the Bill seeks to take powers that were intended to be used for a very limited period of up to six months in an unforeseen emergency, and to entrench them as the ordinary method of dealing with pandemic diseases over extended periods.

The Victorian Bar emphasises that the rule of law, the sovereignty of Parliament and the checks and balances of our democratic Westminster system of government must be respected, even in times of emergency or crisis. Whilst broad emergency powers which circumscribe ordinary checks and balances of our democracy may be justified to deal with an unforeseen crisis in the short term, they are not appropriate for the management of risks over extended periods of time.

The submission is worth reading in its entirety, but a brief summary of the recommendations include:

1. Improved oversight for the broad emergency powers

At a minimum, the bill be changed so that the ability to disallow pandemic orders is not conditional on a recommendation by a government body, and the requirement to pass the motion to disallow be consistent with the ordinary process

2. Limits on Pandemic Orders

Pandemic Orders should be limited to specific actions, with time limits on “catch-all” powers.  Conditions for the minister to make orders including whether the order is necessary to reduce/eliminate health risk, if the benefit is proportionate to the harm and inconvenience, consistent with principles in Public Health Act and finally complies with the Charter of Human Rights and Responsibilities.

3. Powers of Authorised Officers to be specified

4. Protection for detained persons

Criteria to be defined upon which a person may be detained and ability to have the court review that person’s detention as soon as practicable.

5.  Deleting provision that remove the privilege against self incrimination

6. Amend provision that enable the Minister to discriminate

7. Define ‘pandemic disease’

Rather than have the Premier determine if there is a pandemic, based on his interpretation, inlcude objective criteria within the Act of what consititutes a pandemic disease.

Suggestions by Victorian Bar President

In our interview with Mr Chris Blanden QC, President of the Victorian Bar Association he stated that the bill could be fixed by deleting the executive panel and including a cross-party parliamentary committee.  He also highlighted the need to be able to disqualify proclamations if you failed to provide reasons or advice within the relevant time frames.  The power of the Authorised Officers should also be reviewed- especially their power to detain people.

Suggestions by Victorian QC’s in their open letter

In the open letter signed by Victoria’s top silks it stated:

The Bill should give the Minister specific powers to do specific things (such as border closures, lockdowns, mask and vaccination mandates, etc), subject to specific and prescriptive requirements listed in the Bill, and subject to unconditional Parliamentary disallowance (i.e. without requiring any SARC recommendation). If these powers prove inadequate, the Minister can come back to Parliament and seek additional powers. This is how a Parliamentary democracy is meant to work.

If there is a need for a general power to make orders in the case of some new unforeseen development requiring urgent action before Parliament has a chance to consider the proposed measures, such power should be restricted to orders that lapse after a very brief period unless confirmed by both Houses of Parliament. At the very least, the power to make general pandemic orders must be subject to unconditional disallowance by Parliament (i.e. without requiring any SARC recommendation).

The letter highlighted the following specific areas of concern:

• Pandemic Orders will be ongoing in the foreseeable future
• Pandemic Orders are very broad
• Pandemic Orders can target persons based on political beliefs
• Limited ways the Pandemic Orders can be disallowed
• Lack of parliamentary checks on Minister’s powers
• Extraordinary powers of Authorised Officers
• Removal of right to silence/priviledge against self incrimination
• Lack of review of Authorised Officers powers

The Human Rights Law Centre

The Human Rights Law Centre outlined, before the Bill was released, elements that should be included in pandemic legislation to ensure strong human rights and democractic safeguards.  The first element, Parliamentary Scrutiny of Government’s pandemic response, was not included in the Bill:

Parliamentary scrutiny of government’s pandemic response: Dedicated cross-party parliamentary oversight committees, across Australia and internationally, have provided much needed scrutiny and accountability of governments’ pandemic responses and their use of emergency powers. Committee processes have given business, civil society and individuals a meaningful opportunity to provide information and feedback to help inform government decision-making. A dedicated parliamentary oversight committee should be established whenever pandemic powers are enlivened.

What was changed before the Bill was passed?

The Bill passed through the upper house by 20 votes to 18, with the support of four crossbenchers. Dozens of amendments were made to the original Bill drafted in late October 2021, making the Bill that eventually passed through Parliament a very different “beast” to the one that was initially proposed by the Victorian government.  The final version was the outcome of negotiations between the state government and crossbench MPs, including the Reason Party’s Fiona Patton, Animal Justice Party’s Andy Meddick and Greens’ leader Samantha Ratnam.  Transport Matters MP Rod Barton agreed to support the bill after proposing further changes, which ultimately led to its passage through the upper house on 2 December 2021.

The following checks and balances have been added to the legislation to ensure the Premier and Health Officer do not have unfetted power including:

• Premier must have “reasonable grounds” to declare a pandemic
• Minster must publish the reasons for making public health orders, including the advice of the Chief Health Officer
• Stronger references to the Charter of Human Rights and Responsibilities
• Ability to disallow public health orders if beyond scope of Health Minister or incompatible with Charter of Human Rights
• Maximum fines reduced

There are still concerns around the

• power to detain
• ability to disallow the public health orders
• broad, wide reaching powers given to Premier and Health Minister

The passage of this Bill through Victorian parliament has some important lessons for all Australians.

Firstly, any emergency legislation must be consistent with the rule of law.  Checks and balances are required to ensure those who make decisions are properly scrutinised and held to account.  This protects against one person (or small group of people) having absolute power and facilitates good decision making through robust and open debate.  Following on from this, any pandemic management decisions must be transparent and accountable, proactive and protective of human rights.  Decisions must not only consider the risks to public health but must also consider freedom of movement, freedom of speech, right to work and right to education. 

Secondly, where emergency legislation overrides the normal process of parliamentary scrutiny it must be for a limited time and for limited circumstances.  

Finally, citizen engagement and the opportunity for consultation and robust debate are critical for the creation of just laws.  As a result of concerns from the legal profession, human rights bodies, the Victorian Ombudsman and the Rule of Law Education Centre and protests by Victorian citizens, the final outcome of the Victorian Pandemic Management Act after it passed through Parliament was quite different to the Bill it started out as.  

Human rights review needed

Human Rights bodies and the Attorney General need to openly review the Pandemic Bill  and in the meantime withdraw it (if necessary with a short extension of the current State of Emergency).

 The passing of the Victorian Pandemic Bill kills human rights in Victoria.

This is not a matter of politics but about human rights recognised by a Labour Government in the original Charter of Human Rights and in the International Bill of Rights.

This killing is carried out under the subterfuge of the Minister of Health making pandemic orders; s165AI.  But the Health Minister is not independent and is a disguise for the Premier of the day, presently Dan Andrews, and pandemic orders may have little to do with a pandemic.

Pandemic orders are effectively unlimited and unreviewable.

 Unlimited, in that an order can require detention of persons, restricting movement, regulating public or private gathering, requiring provision of information and requiring testing and medical examination of persons; s165AI.  And can differ between or vary by reference to any attribute, including their beliefs on political beliefs; s165AK.  All on the view that the Premier believes in his effective absolute discretion that is reasonably necessary to protect public health.

 The Bill transfers power to legislate from Parliament to the effective non-reviewable discretion of one man, the Premier.

Other Rule of Law Resources