Victorian Bar president Christopher Blanden, QC, slams ‘disgraceful’ pandemic powers

The government’s “draconian” pandemic legislation has been criticised, with a top lawyer likening it to the Stasi.

One of Victoria’s top lawyers has warned that the Andrews government’s controversial new pandemic legislation will give it “unlimited power to rule the state by decree”.

Victorian Bar president Christopher Blanden, QC, also accused the government of misleading Victorians on the consultation process, saying proper advice was not sought.

Mr Blanden said the way the proposed law was being rushed through parliament was an attack on democracy.

“The Bill confers on the health minister in a practical sense an effectively unlimited power to rule the state by decree, for effectively an indefinite period, and without effective judicial or parliamentary oversight,” he said.

“That doesn’t add up to good democracy in my book. It’s a disgrace. What’s the ­urgency?”

“If you’re going to interfere to this degree with people’s basic rights, then there ought to be some reasoned debate about whether it’s justified.

“Not just that you do a deal with a couple of crossbenchers and because you’ve got the numbers you shovel it all through and you effectively stymie debate. It’s quite disgraceful, really.”

The Andrews government’s proposal has been criticised by Victorian Bar president Christopher Blanden, QC, as ‘draconian’ and ‘disgraceful’. Picture: Andrew Henshaw

Under the legislation, the premier would have the power to make a pandemic declaration after consultation with the chief health officer, and extend it in three-month blocks for as long as he considered necessary. The chief health officer would be stripped of the ability to make special orders, with that power to be transferred to the health minister.

It would give the government virtually unlimited capacity to restrict movement, ban public gatherings, close businesses or order quarantine requirements as required.

And the power to declare a pandemic would exist even if there had been no cases of a specific disease in Victoria for a period of time.

Mr Blanden said the only consultation the government had done with his group was a 45-minute online meeting with more than a dozen other stakeholders, during which details of the legislation were not discussed.

He said while the government had boasted the bill would increase transparency around public health measures, failing to release public health advice would not invalidate any orders made.

Justice Party MP Stuary Grimley will oppose the Bill. Picture: Mike Dugdale

“If the Stasi had these powers, they would still be in force,” he said.

The government has secured the support of three key crossbenchers in the upper house to pass the legislation, however others including Derryn Hinch’s Justice Party members will oppose the Bill.

“We are elected Members of Parliament, yet we found out about the Bill’s introduction and its contents from the media,” Justice Party MP ­Stuary Grimley said.

“The two of us represent more than a million enrolled electors, but we’ve been told we were not briefed on the Bill because we opposed the state government’s state of emergency Bill in March last year and its extension five months later. What sort of a democracy is that?”

Opposition leader in the upper house, David Davis, has asked the parliament’s scrutiny of acts and regulations committee (SARC) to urgently examine the Bill.

“It is outrageous that yet again the Andrews Labor government has sought to abuse the parliamentary process, seeking to truncate proper scrutiny including the critical scrutiny of the committee,” he said.

“It is my view and the view of many that the Bill is a serious attack on the liberties of Victorians and longstanding protections that SARC is empowered to discuss.

“SARC’s important role as a watchdog means, in my view, it should in this circumstance, where such foundational change is being made and the personal power of the premier being increased so profoundly, undertake a full public inquiry with hearings that would enable it to hear a broad range of expert opinion about this Bill.”

A government spokeswoman said: “We have engaged extensively with some of the most trusted leaders in public health, human rights and law and policy making.

“The Victorian Bar were one of numerous legal groups that were engaged during the consultation process,” she said.

“There are numerous transparency measures written into the Bill, including an independent pandemic management advisory committee and the requirement to make public the reasons for pandemic ­orders and also the chief health officer advice that sits behind them. This makes it one of the most accountable and transparent legislative pandemic measures in the country.”

JAIL THREAT FOR HEALTH ORDER BREACHES

Victorians who brazenly breach health orders face up to two years behind bars under the controversial proposed laws.

For the first time in ­Victoria, blatant and aggravated breaches could be punished with jail, while ­individuals face fines of up to $90,500 and corporations $452,500.

Other states have already jailed Covid rulebreakers, including Demons fans who attended the grand final.

Government sources on Tuesday night said prison terms would only apply to the most egregious of offences under the new pandemic-specific legislation before parliament.

But legal experts have warned protesters caught up in last month’s chaotic city rallies, people breaching self-isolating requirements or those repeatedly caught without a mask could have faced jail under the proposed regime.

It is feared that in its current form the Bill fails to distinguish between the seriousness of breaches – meaning breaking a mask rule or breaking curfew would be considered the same as failing to isolate.

Premier Daniel Andrews during Question Time. Picture: Ian Currie

Currently, breaches of chief health officer directions can ­attract fines of up to $19,800 for individuals and $99,100 for corporations.

Questions have also been raised about the oversight of the broad public health powers, with academics warning of fewer safeguards than in other jurisdictions, including NSW and New Zealand, where similar legislation exists.

Melbourne Law School ­Associate Professor William Partlett warned the Bill also broke significantly with Australian democratic tradition in one key way.

“It gives the health minister the power to reinstate a pandemic order that has been disallowed by a key parliamentary committee,” he said. “Moreover, it gives oversight of these pandemic powers to an appointed non-parliamentary committee.”

Prof Partlett said a dedicated cross-party parliamentary committee was needed instead of the proposed executive-appointed oversight committee.

“The use of an appointed committee to oversee these powers is a problematic departure from the usual role of parliamentary committees in the scrutiny of executive governance,” he said.

“To ensure a fuller set of safeguards, dedicated parliamentary oversight should be created alongside that of an appointed committee.”

Leader of Victorian Liberal Party Matthew Guys aid he was deeply troubled about wording in the legislation. Picture: David Caird

The proposed legislation has sparked fierce condemnation from the state opposition, leading Health Minister Martin Foley to accuse Opposition Leader Matthew Guy of engaging in “desperate ­politics”.

Mr Foley said each case would be determined on its merits by an appropriate judicial officer.

“That wouldn’t be a matter for a minister, that would be a matter for enforcement agencies,” he said.

Mr Guy has urged MPs to vote against the Bill, arguing it is the “most extreme law of its kind anywhere in Australia”.

“We do not support handing over everything, our rights, our liberties, everything to the premier of the state. Allowing the premier to ­effectively rule by decree for months on end, declaring and classifying individual citizens in our state, denying them their freedoms … is unprecedented,” he said.

“We see these laws as an ­incredible attack on democracy.

“There are sensible members of the Labor Party, but to support legislation like this will be unprecedented. Please don’t let your leader unleash this kind of will upon the state. It will be very difficult to wind back.”

Mr Guy said he was deeply troubled about wording in the legislation, which said pandemic orders may apply to “classes of person” who can be identified by their “characteristics, attributes or circumstances”.

Mr Foley said any suggestion that a broad interpretation of the legislation would lead to discrimination was offensive.

“If anyone is suggesting that, they need to go back and do legislation interpretation 101,” he said.

Three key crossbenchers had been in consultation with the government since March over the legislation, with other crossbenchers left furious they first learnt about the Bill in media reports.

“It’s extremely disappointing that we weren’t part of the discussion. We’re not the cool kids at school, apparently,” Justice Party leader Stuart Grimley said.

Chief health officer Professor Brett Sutton on Tuesday maintained he didn’t feel “sidelined” by the new pandemic laws.

Under the updated pandemic management framework, the role of Prof Sutton and future CHOs would remain central to all key decisions.

Prof Sutton said he supported any changes going forward that would allow the state to better respond to pandemics.

He said it was appropriate to re-examine who held ultimate accountability for health orders and apply lessons from the past 18 months.

Originally published as Victorian Bar president Christopher Blanden, QC, slams ‘disgraceful’ pandemic powers