The pandemic Bill changes explained

These are the six changes the Andrews government was forced to make to its controversial pandemic laws.

Premier Daniel Andrews has secured support for his Pandemic Bill. Picture: Paul Jeffers

The Andrews government has clinched a deal to pass its contentious pandemic legislation.

Transport Matters MP Rod Barton will vote for the deadlocked legislation after the government agreed to six major changes to get it over the line.

These are the six key concerns and how they were addressed.

1. How a pandemic is declared

The new powers introduced by the Bill are triggered by the premier making a pandemic declaration, however the term pandemic is not defined. The Victorian Bar recommended that “pandemic disease” be expressly defined by reference to objective criteria.

Result:

After the Bill was first unveiled, the government agreed to a stronger threshold for how a pandemic was declared. The premier can only declare this if they are satisfied it can be justified on “reasonable grounds”. This provided some improvements recommended by legal groups but did not address the original issue of how a pandemic is defined. Another amendment has brought forward the timeline in which a pandemic declaration can be reviewed. A group of independent legal and health experts will now be able to assess this within 18 months of the premier making a declaration.

2. The breadth of power to make pandemic orders

Concerns have been raised about the “extraordinary breadth of the health minister’s power to make a pandemic order”. Once a pandemic declaration is made, the Bill grants the health minister very broad power to make “any order”. The Victorian Bar recommended that the Bill be amended so that the power to make pandemic orders is limited to specific actions.

Result:

The health minister will still have powers to make broad orders but other smaller issues related to this have been addressed. Human right protections have been strengthened and rights to protest will be enshrined in regulation. Amendments secured by Rod Barton also mean an independent committee that reviews pandemic orders will not be controlled by the government of the day. The joint committee will also be able to recommend disallowance motions for pandemic orders, but these must then be passed by an absolute majority in a joint sitting of parliament.

3. The breadth of the authorised officers’ powers

Authorised officers would be given “breathtakingly broad powers” to take any action or give any direction — other than to detain a person — they believed reasonably necessary to implement or give effect to a pandemic order or to protect public health.

Result:

Authorised officers will still have sweeping powers but amendments will allow their behaviour to be reviewed more carefully. Human rights protections have been strengthened. A new specialist panel, separate to the government and the chief health officer, will review detention orders.

4. Discrimination based on protected attributes

Under the proposed laws, pandemic order may apply or differentiate between people based on attributes within the meaning of the Equal Opportunity Act 2010. The Victorian Bar accepts there may be legitimate public health reasons to discriminate based on certain attributes, such as age, gender, disability or pregnancy, because those attributes may be relevant to a person’s health risk profile. But concerns have been raised about powers that would allow discrimination based on a person’s political belief, industrial activity or personal association with others.

Result:

These powers were wound back so that pandemic orders related to personal attributes could only be given if the public health risk justified such an extraordinary move.

5. Protection for detained persons

The Bill fails to provide an independent review process for people detained in a pandemic management area in accordance with a pandemic order. While authorised officers must conduct reviews every 24 hours to satisfy themselves that continued detention is necessary, there is no alternate independent process.

Result:

In a major overhaul, an independent panel will now review detention orders at arms length from the government and its departments. Authorised officers will no longer have control of this process and the Victorian Ombudsman will be able to handle complaints in this area.

6. Publication of information

The Bill would require the publication of the public health advice behind any pandemic management measure within 14 days. The Victorian Bar has submitted that the advice should be released at the time that the pandemic order is made, or if that is not practicable, within a much shorter time frame.

Result:

This was shortened down to seven days in response to complaints. However, some legal experts believe this is not enough and the health advice should be published as close as possible to the time the orders are made.

7. Overly harsh penalties and jail sentences for breaching public health orders

Human rights advocates had warned of the proposed punishments for breaching pandemic orders. Initially the legislation proposed fines of up to $90,500 for people and $452,500 for businesses. There were also concerns that adding an “aggravated offence” category would see harsh penalties and jail terms that were over the top.

Result:

After the initial negotiations, these penalties were halved. Mr Barton and Mr Hayes were also able to negotiate that the government completely remove the aggravated offence category in full.