New pandemic laws to face upper house amendments: so what’s in them?

Victoria’s proposed new pandemic laws have proven to be controversial and will almost certainly be subject to crossbench amendments when they reach the upper house in three weeks.

Premier Daniel Andrews says the new laws are designed to keep Victorians safe.Credit: Wayne Taylor

The laws will be the first pandemic-specific legislation in Australia, designed to outline when and how the declaration of a pandemic can be made. Although sections of the laws have been welcomed, a raft of groups including the Victorian Bar, the Centre for Public Integrity and Liberty Victoria have raised concerns with what they say is the lack of strong oversight over what are extraordinary powers.

Key crossbencher Fiona Patten, one of three Upper House MPs whose support the government will need to get the Bill passed, said she was considering several amendments including one to strengthen oversight of the pandemic orders.

The proposed legislation would replace the state of emergency, which has been in place since last March and is due to expire on December 15.

Transparency around decision-making will be strengthened. For the first time, Victorians would see the health advice on which pandemic-related orders are created, with the proposed laws requiring the government to table in Parliament within a fortnight a statement of reasons including the advice of the Chief Health Officer (CHO).

Reason Party MP Fiona Patten’s support will be needed to get the bill passed.Credit: Eddie Jim

The government would also be required to provide an explanation of how the orders affect people’s human rights under the Charter of Human Rights and Responsibilities.

What changes is that instead of the CHO, it would be the Premier’s role to make a pandemic “declaration” on the advice of the CHO and the health minister.

This answers the criticism that an unelected official such as the CHO should not be responsible for declaring a pandemic given the consequences for freedom of movement, schools and businesses that Victorians have experienced during harsh lockdowns.

This is similar to the rules in NSW, but there it is the health minister who has such powers. In Victoria, the health minister will be responsible for the health orders arising from the declaration of a pandemic.

The Victorian government’s pandemic laws passed the lower house on Thursday. Credit: Chris Hopkins

The Premier would have the power to declare a pandemic whether or not a pandemic is present in Victoria, or whether a disease that is in Victoria is one of pandemic potential. Mr Andrews’ office said this was designed to address the potential risks of emerging pandemics.

Health Minister Martin Foley said the legislation took the best elements of pandemic responses from other states and overseas.

“At the core to this framework is accountability and transparency in decision-making, while ensuring public health advice is central to any pandemic response.”

Mr Andrews has said the proposed legislation, which passed the lower house on Thursday night, was modelled on laws in NSW and New Zealand.

In NSW, the health minister has broad powers to make any direction necessary to reduce or remove the risk of COVID-19 in an area, to segregate or isolate people and to prevent access to any part of NSW, without a declaration needing to be made. Under Victoria’s proposals, a pandemic declaration can be renewed for up to three months, with no outer limit on how many times a declaration can be renewed.

Victoria’s laws would be the first among neighbours: NSW is operating under public health orders, rather than a pandemic-specific set of laws. New Zealand’s laws are pandemic-specific and will not remain in force beyond the period necessary to control the outbreak.

Victoria’s laws differ from NSW in another important way. Here, as the laws stand, there would be no cross-party parliamentary committee specifically designed to scrutinise pandemic orders – although parliamentary committees would be free to conduct inquiries.

Instead, there would be two oversight mechanisms: an independent panel appointed by the government – leading some critics to question its independence – and the cross-party Scrutiny of Acts and Regulations Committee (SARC).

SARC, which scrutinises all bills that come before Victorian Parliament, will also consider new pandemic orders put in place by the government. But the proposed legislation limits the committee’s capacity to place limits on pandemic orders, according to Associate Professor William Partlett of the University of Melbourne’s law school.

SARC would have the ability to recommend pandemic orders be suspended, but the Minister could recommend to the Governor in Council the suspension be overturned.

“That’s essentially the minister overriding SARC, so SARC is then largely in an advisory position,” Mr Partlett said.

“The only way to disallow [orders] is if both houses of Parliament vote to disallow, which of course is not going to happen because the Minister is ultimately part of the government and the government controls the lower house.”

Ms Patten said she was considering moving to amend this aspect of the legislation.

“I am looking at how SARC conducts itself and the role it plays is worthy of greater scrutiny and I may consider amendments towards that section [of the legislation],” she said.

A group of top silks on Thursday night released an open letter to government saying the Bill represented a “blank cheque to rule by decree”.

One key criticism is that once a pandemic is declared, the health minister can make any order they believe is “reasonably necessary to protect public health”, giving the minister extraordinary and ongoing power that is almost impossible to challenge. Instead, as occurs in other jurisdictions, it should not be open-ended but limited to specific powers such as closing borders, mask mandates and lockdowns, the QCs said.

“It is one thing to allow temporary rule by decree to deal with an unforeseen and extraordinary emergency in circumstances of extreme urgency. It is something else altogether to entrench rule by decree as a long-term norm. In our view, this is antithetical to basic democratic principles and should not be allowed to happen,” the letter said.

The proposed laws introduce the harshest fines for non-compliance in the country.

Anyone who knowingly breaches a health order and, in the process causes serious health risks to another person, would face up to two years’ prison for the most egregious examples.

A person who failed to comply with a health order, knowing it could cause serious health risks to others, would face a maximum fine of $90,500, while businesses face up to $452,500 in fines for rule breaches. The government says these maximum penalties would be used “rarely” for those who knowingly put public health at risk and not for minor or moderate breaches.

In NSW, the maximum penalty for an individual is $11,000, imprisonment for six months or both, with the risk of $5500 each day the breaches continue. Businesses face maximum penalties of $55,000 and $27,500 for each subsequent day of breaches.

The maximum penalty in Western Australia, which has come under criticism for its tough approach, is 12 months’ imprisonment or a $50,000 fine.

Ms Patten said transparency about COVID-19 responses had been lacking across the country and the Bill would make Victoria the first jurisdiction to release health advice, human rights assessments, and the reasons for pandemic orders.

She welcomed the establishment of the advisory committee, which will be compiled of health, legal and other experts, but expressed concern the proposed legislation did not secure the committee’s funding.

She said it was disappointing to see misinformation being spread, including that people could be jailed for refusing to wear a mask, or the Premier could establish a permanent lockdown.

“No wonder the community is frightened,” she said.

Some positive aspects of the laws are that they would prevent law enforcement agencies from accessing people’s QR code information and also create a new concessional fines scheme for people experiencing financial hardship.

But it’s not just the community. The legal profession, too, says there are frightening aspects of this Bill.

The Health Minister has the power to detain people for the purposes of COVID-19 control, for a period that must not exceed what the Minister believes is necessary.

The Centre for Public Integrity released a briefing paper raising concerns this could, in effect, permit detention for an unlimited amount of time. The legislation stipulates that authorised officers detain a person under pandemic orders, the Chief Health Officer must be notified as quickly as “is reasonably practicable”, and justify the detention. The CHO must then inform the Health Minister of the detention.

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