Coronavirus: Key Victorian crossbenchers signal they will reject Daniel Andrews’ hardline Omnibus’ bill

Key crossbenchers signal they will reject Daniel Andrews’ hardline new bill designed to make it easier to detain people.

Reason Party leader Fiona Patten.

Key Victorian crossbenchers have signalled that they will reject Premier Daniel Andrews’ hardline new bill designed to make it easier to detain people during the pandemic, as an eminent group of retired judges and QCs called on state parliament to oppose the legislation.

Eighteen legal figures have come together to sign an open letter, in a withering attack warning that the bill endangers Victorians’ freedoms.

Their letter comes as Reason Party leader Fiona Patten and the Greens indicated they would push for amendments to the bill in the upper house, citing concerns about giving authorised officers powers to detain people without court oversight. “We are deeply concerned by the passage of the … bill through the Legislative Assembly,” states the letter from the legal figures, first revealed online by The Australian on Tuesday morning.

“The bill would also allow any person the secretary considered appropriate to be authorised to exercise emergency powers. There would be no requirement that persons authorised be police officers, or even public servants.

“Authorising citizens to detain their fellow citizens on the basis of a belief that the detained person is unlikely to comply with emergency directions by the ‘authorised’ citizens is unprecedented, excessive and open to abuse.

“We call on the Legislative Council to amend the bill, or to vote against it.”

Retired High Court judge Michael McHugh and former Federal Court judges Peter Heerey and Neil Young headline the list of respected legal figures who have signed the letter opposing the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020.

Other QCs and SCs who have joined the push are: Ross Gillies, Jennifer Batrouney, James Peters, Peter Collinson, Maryanne Lough­nan, Rachel Doyle, Mary Anne Hartley, Philip Crutchfield, Georgina Schoff, Philip Solomon, David Batt, Stuart Wood, Felicity Gerry, Paul Hayes and Michael Borsky.

Justice Peter Heerey

The Hon. Michael McHugh AC QC

The open letter was written by Mr Borsky and Mr Crutchfield. In a joint statement to The Aust­ralian, they said: “It is of course necessary and important for the government to have powers to enforce­ directions to control the spread of the virus.

“But it is no less important to respect principles of democracy and the rule of law. Authorising citizens to detain one another on the basis of a belief as to likely future action is difficult to reconcile with those principles.”

Earlier this month, the And­rews government introduced the controversial legislation into the Legislative Assembly. The gov­ern­­ment used its numbers to pass the bill in the lower house, but will need the support of the crossbench to have it pass through the Legislative Council.

Of a crossbench of 12, Ms ­Patten, the Greens’ Samantha Ratnam and the Animal Justice Party’s Andy Meddick were the only MPs to vote in support of the Andrews government’s controversial state of emergency extension bill earlier this month.

Former Labor MP Adem Somyurek abstained from voting on that bill, and has indicated he will do the same with the omnibus bill.

Samantha Ratnam MP. Picture: Jay Town

On Tuesday, Ms Patten said she could not understand why the bolstered authorised officer provisions were necessary.

“Extending the powers of authorised officers to detain people with no court oversight is extreme, and it’s unclear why the government thinks they need these powers now,” she told The Australian.

“The (coronavirus case) numbers are going down, things are working, and I think most importantly this is a health pandemic and it should be treated as a health issue, not a law-and-order one.

“The authorised officers that we have now undertake significant training, they’re health experts­, and there appears to be no evidence that they need greater powers.”

Dr Ratnam is expected to have returned from maternity leave when the upper house sits next, on October 13.

Last week, her lower-house colleague Tim Read told parliament the Greens had serious concerns­ regarding provisions in the bill allowing police, protective service officers, private security guards and others to “now becom­e authorised officers and to unilaterally determine that a person­ is a serious risk to public health and should therefore be detained”.

“We have all seen recent­ examples of law-enforcement officers’ inability to display calm judgment and discretion in issuing fines for breaches of restrictions­ and at times unnecessary use of force and violence against vulnerable people,” said Dr Read.

The primary concern of the 18 lawyers is that the bill widens the type of person who would have the powers to detain Victorians, and gives them the authority to do so on a pre-emptive basis.

“Emergency powers already allow authorised officers under the Public Health and Wellbeing Act 2008 (Vic) to detain people and to restrict movement,” the lawyers write.

“The bill would expand the emergency powers to allow an authorised officer to detain: ‘Any person that the authorised officer reasonably believes is likely to fail to comply with an emergency direction­ and is a close contact of a person diagnosed with COVID-19 (or a person diagnosed with COVID-19) not given clearance from self-isolation, for so long as the authorised officer reasonably believes the person in detention is likely to fail to comply with an emergency direction’.”

Mr Andrews defended the bill, saying he agreed the authorised officer provisions were “unprecedented”, but not that they were “excessive and open to abuse”.

THE LETTER IN FULL

“We are deeply concerned by the passage of the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 (Bill) through the Legislative Assembly.

Emergency powers already allow authorised officers under the Public Health and Wellbeing Act 2008 (Vic) to detain people and to restrict movement.

The Bill would expand the emergency powers to allow an authorised officer to detain:

• any person that the authorised officer reasonably believes is likely to fail to comply with an emergency direction and is a close contact of a person diagnosed with COVID-19 (or a person diagnosed with COVID-19) not given clearance from self-isolation;

• for so long as the authorised officer reasonably believes the person in detention is likely to fail to comply with an emergency direction.

The Bill would also allow any person the Secretary considered appropriate to be authorised to exercise emergency powers. There would be no requirement that persons authorised be police officers, or even public servants.

Authorising citizens to detain their fellow citizens on the basis of a belief that the detained person is unlikely to comply with emergency directions by the “authorised” citizens is unprecedented, excessive and open to abuse.

We call on the Legislative Council to amend the Bill, or to vote against it.

MICHAEL MCHUGH AC QC

PETER HEEREY AM QC

NEIL YOUNG QC

ROSS GILLIES, QC

JENNIFER BATROUNEY, QC

JAMES PETERS AM QC

PETER COLLINSON QC

MARYANNE LOUGHNAN QC

RACHEL DOYLE, QC

MARY ANNE HARTLEY QC

PHILIP CRUTCHFIELD QC

GEORGINA SCHOFF QC

PHILIP SOLOMON QC

DAVID BATT QC

STUART WOOD AM QC

FELICITY GERRY QC

PAUL HAYES, QC

MICHAEL BORSKY QC