Powerful pandemic laws lack independent oversight

There is much commentary at present not only in the news media, but in our living rooms, our public parks and on the steps of our Parliament, about proposed pandemic laws. I too have looked at the bill and have provided feedback to the government about those aspects relevant to my work to investigate complaints about public services, holding the government to account and improving public administration.

I welcome many provisions in the bill, especially those that embed human rights and provide greater transparency in our public health laws. Our laws have for many years provided for extraordinary powers to be wielded in extraordinary circumstances, without transparency and with very little practical oversight. So this is an important opportunity to improve the current situation and the bill goes some way to achieving this.

The public housing lockdowns in 2020 made no provision to provide people with fresh air and exercise. Credit: Penny Stephens

What is still lacking, however, is independent scrutiny. Given the wide-ranging impact of these powers on civil liberties and everyday life, they should not only be subject to independent oversight, but also to independent review.

Currently, public health directions under emergency powers are made by the chief health officer or their delegates and are within the ombudsman’s jurisdiction to investigate. While it has never been practicable for my office to review all the directions made since March 2020, I investigated the detention orders made in the public housing towers lockdown, and I am investigating discretionary decision-making under the directions in the context of border permits and exemptions.

I think it is a good thing, given their importance, that such orders be made by a senior minister of state informed by public health advice. But they will not then generally be reviewable by the ombudsman or anyone else. The current proposal is for oversight by the scrutiny of acts and regulations committee; and while there is certainly a place for such scrutiny, it is not sufficiently independent. An effective oversight body must be not only independent, but sufficiently agile, skilled and resourced to conduct a timely review.

While there are several options for independent oversight, this function would sit well with a judicial body with an express rapid review function, and the power to make binding decisions on pandemic orders.

It is also important that people affected by the operation of pandemic orders, particularly detention orders, know about and have access to an effective complaints mechanism. A single independent complaints body should be empowered to deal with all complaints about detention and enforcement of pandemic orders.

My experience of investigating the circumstances of people deprived of their liberty, including the public housing lockdown investigation, reinforces the need for minimum standards of treatment to protect the rights of people in detention. For example, people in prison currently have the right to be in the open air for at least an hour each day. My public housing lockdown investigation and the Hotel Quarantine Board of Inquiry recommended that people detained be provided with regular and meaningful access to fresh air and outdoor exercise wherever practicable, but no such standards appear in the bill.

It appears that the urgency of the current situation has made it difficult to ensure consultation is wide-ranging and representative, and that a bill intended to put pandemic emergency legislation on a firmer footing has all the protections in place the community would expect. So, I also propose that the pandemic provisions be subject to an 18-month sunset clause. This will ensure there is sufficient time to review the operation of the legislation, undertake comprehensive consultation, and learn from Victoria and Australia’s COVID-19 experience.

Much of the commentary aired in the media from legal, human rights and medical experts has already improved the bill. But we have also seen much ill-informed commentary, and suspicion of politicians’ motives. Some of this is inevitable in the current environment when people are not only tired, but tired of the limitations on their freedoms caused by the pandemic.

But some concerns could be allayed by introducing independent oversight. It would reassure people that their government is not above the law, that the extraordinary powers provided in the bill will not be open to abuse – that there is an independent body to ensure that. I encourage all those considering the bill to improve it yet further in the public interest.