Top Vic lawyers’ grim warning on pandemic powers

Dozens of Victoria’s top lawyers have warned a pandemic declaration will be in force “for the foreseeable future” under proposed new laws.

Dozens of Victoria’s most senior lawyers have joined forces to oppose the state government’s proposed new pandemic management laws.

More than 20 QCs are among lawyers to have put their name to a joint open letter urging the proposed laws to be rejected by parliament.

The Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 passed the lower house on Thursday night and will be debated in the upper house when parliament sits next month.

But the leading lawyers have warned the legislation would give the government unprecedented powers to rule by decree for the foreseeable future.

“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 lawyers wrote.

“The minister can make a pandemic order while a “pandemic declaration” made by the Premier is in force. Given the low threshold for the making of this declaration (s 165AB) and the fact that Covid-19 is unlikely to be going away any time soon, we can expect a pandemic declaration to be in force for the foreseeable future.

“Once a pandemic declaration is in place, the only other requirement for the minister to make a pandemic order is that he or she must believe that the order is “reasonably necessary to protect public health”.

“Not only is this threshold low, but it does not need to be satisfied objectively — it is enough if the minister subjectively believes that the order is “reasonably necessary”.

“This will make it practically impossible to challenge the merits of the order in a court.

“A person wishing to challenge the order on the merits will need to establish legal unreasonableness.

“This is a very high bar that might catch only the most extreme forms of overreach.”

Concerns have also been raised about parts of the proposed laws that would allow the government to discriminate between different classes of people, including their “political belief”.

“Thus, the Bill expressly contemplates that the minister can make a pandemic order targeting persons on the basis of their political beliefs or activities if the minister forms the view that this is ‘reasonably necessary to protect public health’.

“It is not difficult to imagine how some future health minister might form this view in respect of political beliefs or activities that involve questioning or opposing the government public health measures.”

The Bill has sparked widespread community debate with MPs, legal groups and civil liberty groups raising concerns about its contents.

If passed in the upper house the legislation would give the Premier 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 it necessary.

The state’s 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 state opposition has vowed to repeal the laws if elected to government.

Daniel Andrews has dismissed concerns about a lack of consultation in the drafting of the Bill.

The government will need to secure the support of key crossbenchers to pass the Bill, with Greens Samantha Ratnam, Animal Justice Party’s Andy Meddick and Reason Party leader Fiona Patten flagging support for the legislation.