New move could gift Premier Daniel Andrews unprecedented power

Victorians defying health orders by protesting or not wearing masks could spend two years in jail under controversial proposed changes to state of emergency laws.

Victorians caught breaching health orders could be jailed for up to two years under controversial new pandemic-specific legislation tabled in parliament on Tuesday.

Under the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021, anyone caught failing to comply with pandemic orders, despite knowing it risked public safety, would face the jail term.

Fines of up to $90,500 for individuals or $452,500 for corporations could also be issued.

Legal experts have warned protesters caught up in last month’s chaotic city rallies, people breaching self-isolation requirements, or people caught without a mask could all have faced jail under such laws.

Legal sources also say the Bill fails to distinguish between offence seriousness, meaning breaking a mask rule or breaking curfew is considered in the same way as failing to isolate.

Daniel Andrews would have the power to make a pandemic declaration following consultation with the chief health officer. Picture: Andrew Henshaw

Health Minister Martin Foley would not “run a commentary” on what rule breaches would constitute such a fine, but said an example could include if an individual or corporate entity deliberately and knowingly flouted health orders to spread a virus.

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

“Each case would have to be determined on its merits by an appropriate judicial officer … It is a very high benchmark and it’s for the most egregious and deliberate offences that cause significant public harm.”

Under the proposed legislation — which would replace Victoria’s controversial state of emergency framework — Premier Daniel Andrews would wield unprecedented power to declare pandemics and enforce emergency laws.

Mr Andrews would have the power to make a pandemic declaration following 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.

The Herald Sun understands 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.

Opposition Leader Matthew Guy says the government clearly has plans to lock down the state in future. Picture: David Geraghty

GUY URGES PARTIES TO OPPOSE LAWS

The proposed legislation has sparked fierce condemnation from the state opposition, with Mr Foley accusing Opposition Leader Matthew Guy of engaging in “desperate politics”.

Mr Guy on Tuesday urged all parties across the political spectrum to “stand up and oppose” legislation set to replace Victoria’s controversial state of emergency framework.

He claimed the legislation indicated the government was “drunk on power” and clearly had plans to lock down the state in future.

“Why would the government pass such extreme legislation if they didn’t intend to lock us down again?” he said.

“This is the most extreme law of its kind anywhere in Australia.

“Placing so much power in the hands of one person, not the cabinet, not the parliament, but in the hands of the premier alone would be unprecedented.

“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.

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

Mr Guy said while the coalition supported streamlining state of emergency proposals, it didn’t require a law “as extreme as this”.

“We do not support handing over everything, our rights, our liberties, everything to one person to the premier of the state,” he said.

Daniel Andrews would wield unprecedented power to declare pandemics and enforce emergency laws under the new legislation.

Mr Guy added the government’s argument that the legislation was modelled on the system currently implemented in NSW was “completely untrue”.

He urged all parties in the parliament — regardless of where they stood in the political spectrum — to oppose the Bill.

“I know we don’t always agree. I know we’re on different political ideologies, but for goodness sake, stand up and oppose this legislation.

“Whether you are of the parliamentary left or right or centre or whatever, please oppose this legislation. To all MPs, please stand up the Victorians.

“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 start. It will be very difficult to wind back.”

Mr Guy said the fact the government had only spoken to three “chosen” upper house MPs rang alarm bells.

HEALTH MINISTER HITS BACK AT CRITICS

Mr Foley, who introduced the Bill to parliament on Tuesday morning, said the pandemic-specific provisions were modelled on systems used in New Zealand and New South Wales.

He thanked upper house crossbench members for the “constructive way” they had worked alongside the government.

“I compare that with the hysterical opposition’s nonsense that we’ve seen from the opposition that simply confirms this guy is the same as the other guy,” he said.

“(They are) always committed to opposition for opposition’s sake.

“It’s about time the opposition constructively engaged.”

He said the new laws, which would give power to elected officials over bureaucrats, were exactly what the state opposition had demanded.

“The leader of the opposition stood about right here two weeks ago calling for precisely what the crossbench has helped out with — a Westminster style engagement process that has the executive accountable to the parliament, and through the parliament to the people of Victoria for the decisions that governments make,” he added.

“At the heart of that will be the ongoing transparent decisions and recommendations from the public health team that will continue to guide the government in its response to this pandemic.”

Health Minister Martin Foley introduces the Bill to parliament on Tuesday. Picture: Andrew Henshaw

KEY CROSSBENCHERS BACK CHANGES

Key crossbenchers were briefed on Monday about the proposed laws, which the government hopes to have in place by December when the current state of emergency provisions expire.

On Tuesday, they argued the new laws — blasted as an “overreach” by the state opposition — would actually provide greater transparency.

Meanwhile, “rejected” upper house crossbench MPs have slammed the government for failing to consult with them.

Justice Party leader Stuart Grimley said he found out about the Bill through the media.

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

Justice Party MP Tania Maxwell added: “This is an absolute appalling decision and what does it say about democracy to my constituents out there?”

Shooters, Fishers and Farmers Party MP Jeff Bourman said he was “really disappointed” about being left out of discussions.

“That’s a disgrace, because we all represent people who don’t have a vote. We are members of parliament, we have a say and we are here to do our job,” Mr Bourman said.

The Greens had “constructive negotiations” with the Andrews government to secure changes to the proposed legislation, Victorian leader Samantha Ratnam said.

An ongoing state of emergency would never again be declared in Victoria without parliamentary approval under a state opposition plan. Picture: David Geraghty

Speaking outside parliament on Monday, she told reporters this included better protections for QR codes and contact tracing data to ensure it is only used for public health and “not accessed by police”.

”These new laws will mean that there will be no more state of emergency for Covid,” she said.

“The minister’s decisions will be reviewed by independent oversight committee, the Covid fine system will be fairer … and public health advice and human rights advice that sits behind the orders will now be made public and tabled in parliament.

“I’m glad there are these improvements that we’ve secured greater transparency oversight and accountability in the laws that will guide in future pandemic.”

Animal Justice MP Andy Meddick defended the legislation and said it had “unprecedented scrutiny”.

Speaking outside parliament on Tuesday morning, he said “it has the most scrutiny of any type of this legislation across the country”.

“The legislation actually has provisions within it for relocation,” he said.

“It is to be debated and voted on in the parliament every three months.

“It also has outside checks and balances in the establishment of an independent committee.”

He said it was being introduced now so it was in place for future pandemics and would ensure there was transparency over the government’s decisions.

Reason Party leader Fiona Patten said the legislation was something she had been calling for some time.

“Our support for the extension of the state of emergency in March was dependent of pandemic legislation being introduced,” she said.

“This is first in Australia and I actually expect that we will see other states do something similar.”

Chief health officer Brett Sutton says he does not feel sidelined by the pandemic laws. Picture: Andrew Henshaw

While Ms Patten said she had been working closely with the government, she would not definitively confirm if she would support the Bill when it reached the upper house.

“The devil is in the detail, so I’ll hold my thumbs up on the bill until we’ve had time to properly assess it,” she said.

But Ms Patten said she generally supported the idea of executives being given ultimate power to instil a sense of accountability.

“That creates a level of accountability,” she said.

“I think that actually creates a better piece of legislation, rather than a non elected member, albeit a very strong health professional, holding such powers.”

Meanwhile, chief health officer Brett Sutton said he did not feel sidelined by the new pandemic laws.

“It’s the case for any jurisdiction in Australia that it’s for parliament to make the laws that population works under,” he said on Tuesday.

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

“It’s been my pleasure to have worked under the existing framework. I’ll continue to provide my public health advice,” he added.

State of emergency powers allowed the government to shut down mass gatherings. Picture: Alex Coppel

HOW EMERGENCY LAWS WORK

Victoria has been subject to emergency laws since March last year when a four-week state of emergency was announced by Mr Andrews and former health minister Jenny Mikakos.

The extraordinary move gave the state government sweeping powers to restrict movement, shut down mass gatherings and require returned overseas travellers to self-isolate.

It also facilitated the implementation of the state’s hotel quarantine program and issuing orders for community lockdowns and mask wearing.

Under existing legislation, the health minister, on the advice of the chief health officer – Brett Sutton – can declare a state of emergency arising out of any circumstances deemed a serious risk to public health.

Shadow Attorney-General Tim Smith says new protections are needed to ensure transparency and accountability in future pandemic responses. Picture: Stuart McEvoy

The state opposition has flagged an alternative proposal that would stop governments from declaring pandemic emergencies for more than 30 days without first securing a special majority in both houses of parliament.

Shadow Attorney-General Tim Smith said new protections were needed to ensure transparency and accountability were at the centre of future pandemic responses.

“Our liberties and freedoms have been under assault from this Labor government for eighteen months. It must end,” he said.

“Our proposed changes will protect every Victorian family and business from excessive restrictions on their freedoms, businesses and way of life.”

Under a Private Members Bill to be put to parliament, extensions to emergency or pandemic declarations would require a special 3/5ths majority of the Legislative Assembly and the Legislative Council to be passed.

Victoria has been subject to emergency laws since March last year. Picture: David Geraghty

The Bill would amend the Victorian Constitution to limit the ability of the state government to declare an emergency or pandemic for no more than 30 days.

It would also require the Premier to provide every non-government party leader and independent MPs with regular briefings justifying the use of state of emergency style powers.

Mr Smith said despite imposing the toughest restrictions in the nation and Melbourne suffering the longest lockdown in the world, Victoria had recorded more COVID-19, cases, deaths, job losses, mental health distress and school days missed than any other state.

“Daniel Andrews’ Covid response has failed. Why would we hand more power to the person who got us here in the first place?”

A government spokesman said: “We agree with the Leader of the Opposition when he says that public health orders should be signed off by a Minister — that’s why we’re introducing pandemic specific legislation, just as we promised we’d do.

“After examining the powers in other jurisdictions, like NSW and New Zealand, and working through issues with an independent panel we’ll introduce a bill to parliament tomorrow to manage pandemics into the future and keep Victorians safe.”