Senior lawyers slam Daniel Andrews’ new ‘rule by decree’ powers

Leading barristers pen open letter attacking new legislation’s ability to ‘rule Victoria by decree’ without proper checks on executive power.

More than a dozen Melbourne QCs said Daniel Andrews’ new bill would effectively confer ‘an unlimited and practically unreviewable power’ on the state’s health minister. Picture: Getty

More than two dozen leading Melbourne barristers have signed an open letter expressing concern that the Andrews government’s controversial pandemic legislation could allow the Premier to “rule Victoria by decree”, and confer “an unlimited and practically unreviewable power” on the state’s Health Minister.

The letter from the 26 barristers, including 23 QCs, comes after the new laws passed the lower house of state parliament on Thursday evening, ahead of their expected passage through the upper house next month with the support of three crossbenchers.

“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 barristers wrote in their letter.

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“The (health) 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 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.”

Those who have signed the letter include: Ross H Gillies QC, Jennifer J Batrouney AM QC, James W S Peters AM QC, Peter W Collinson QC, Philip D Crutchfield QC, David J Batt QC, Stuart Wood AM QC, Gregory P Harris QC, Gerard D Dalton QC, Paul J Hayes QC, Stewart J Maiden QC, Richard P P Dalton QC, Eugene Wheelahan QC, Chris O’Grady QC, Aine Magee QC, Gina Schoff QC, Suresh Senathirajah QC, Marcus Clarke QC, Mark Robins QC, Peter Chadwick QC, Roisin Annesley QC, Rob Hay QC, Michael Gronow QC, Dimitri Ternovski, Darryl Burnett and Robyn Sweet.

The barristers’ letter came as Victoria reported 1656 new Covid cases on Friday, with 10 deaths, ahead of the easing of restrictions from 6pm. The seven-day average of case and hospitalisation numbers has now been falling steadily for a week.

Under the new rules, Melburnians are able to travel to regional Victoria and vice versa, non-essential retail is open, and hospitality venues are able to have up to 150 patrons indoors and up to 500 out, subject to a one person per 4sq m density rule. Masks are no longer required to be worn outdoors.