Summary of Victorian Bar’s Submission to The Department of Health and Expert Reference Group on The Public Health and Wellbeing (Pandemic Management) Bill 2021

The Victorian Bar has provided a submission to the Department of Health and an Expert Reference Group following a briefing on 3 November 2021 in relation to the Public Health and Wellbeing (Pandemic Management) Bill 2021. (See previous TT article about the Bar’s initial concerns about this Bill.) The Bar’s submission addresses both the intent of the Bill and specific sections and recommends a number of amendments.

The Victorian Bar provides the following summary of its recommendations for the benefit of members and the general public. A document explaining the recommendations in more detail is available from the link at the end of this summary.

The essence of the Victorian Bar’s concern is that the Bill seeks to take powers that were intended to be used for a very limited period of up to six months in an unforeseen emergency, and to entrench them as the ordinary method of dealing with pandemic diseases over extended periods.

The Victorian Bar emphasises that the rule of law, the sovereignty of Parliament and the checks and balances, of our democratic Westminster system of government, must be respected, even in times of emergency or crisis.  While broad emergency powers that circumscribe ordinary checks and balances, of our democracy, may be justified to deal with an unforeseen crisis, in the short term, they are not appropriate for the management of risks over extended periods.

Parliamentary oversight

It is appropriate that powers of the nature conferred in the Bill be exercisable by the Minister and not the Chief Health Officer (CHO) or authorised officers. It is an essential feature of our democratic process that such significant powers be exercised by those accountable to the Parliament and to the electorate. The Victorian Bar welcomes this change to the current regime. However, the Minister’s powers to make pandemic orders are extraordinarily broad.

The Victorian Bar believes that the Bill provides grossly insufficient Parliamentary supervision over the Minister’s exercise of that power.

Way too hard for Parliament to ‘disallow’ Pandemic Orders

The Bill departs from the usual disallowance procedure in that it requires a recommendation by the Scrutiny of Acts and Regulations Committee as a pre-requisite to disallowance of a pandemic order, and it requires disallowance to be by both rather than a single House of Parliament.  It is not clear how this limitation on the Parliament’s usual power to disallow pandemic orders is justified. Parliamentary supervision is particularly important in this context where the power to make pandemic orders is extraordinarily broad and is constrained only by the requirement that the Minister believe that the orders are reasonably necessary to protect public health.

Further, whilst the Bill allows for the Scrutiny of Acts and Regulations Committee to suspend the Minister’s pandemic order, it also allows for the Governor-in-Council, on the recommendation of the Minister, to then declare it not suspended.

The Victorian Bar recommends that the Bill be amended so that:

  • The power of Parliament to disallow a pandemic order, in whole or part, is not conditional on the recommendation of SARC or any other body;
  • Disallowance be by passing a motion in either House of Parliament, in accordance with the ordinary process under the Subordinate Legislation Act 1994; and
  • There is protection for persons who are alleged to have failed to comply with a pandemic order that is subsequently disallowed.

Breadth of power to make pandemic orders – too wide

In addition to the lack of effective supervision, the Victorian Bar is concerned about the extraordinary breadth of the Minister’s power to make a pandemic order. Once a pandemic declaration is made, the Bill grants the Minister very broad power to make “any order”. That power is constrained only by the Minister’s subjective belief that the order is “reasonably necessary to protect public health”. The emergency powers in s200 of the Public Health and Wellbeing Act, as it currently stands, allow for an officer, authorised by the CHO, to make “any other direction that the authorised officer considers reasonably necessary to protect public health”.

However, the emergency powers are just that – for use in emergencies. They are constrained by a time limit on the declared state of emergency that triggers them. The obvious Parliamentary intent is that those powers be used in an unforeseen emergency, where there is not sufficient time to consider and enact, legislation giving powers tailored to the particular emergency. Such broad powers were never intended to be granted for an extended and unlimited time. In contrast, the Bill proposes to permanently entrench these powers without time limitation and in circumstances where we now know, through our experience with COVID-19, what powers are likely to be required to deal with a pandemic.

The Victorian Bar recommends that the Bill be amended so that:

  1.  the Minister’s power to make pandemic orders be limited to specific actions (such as restricting movement or activities, or mandating the wearing of protective equipment)
  2. any “catch-all” power to make any other orders be limited in time unless approved by both Houses of Parliament
  3. the Minister’s ability to make orders be conditional on the Minister being reasonably satisfied that:

a)   the order is necessary to reduce or eliminate the serious risk to public health arising from the pandemic disease

b)   the benefit of the order is proportionate to the harm and inconvenience that the order is likely to cause

c)   the order is consistent with the principles in ss 5 to 10 of the Public Health and Wellbeing Act 2008

d)   the Minister comply with s 38 of the Charter of Human Rights and Responsibilities.

Breadth of the authorised officer’s powers to make pandemic management orders – too wide

The Bill empowers the CHO to authorise officers to exercise pandemic management powers. This includes the power to take any action or give any direction, other than to detain a person, that the authorised officer believes is reasonably necessary to implement or give effect to a pandemic order or to protect public health. These are breathtakingly broad powers for a class of person that can include numerous low level public officials. While the emergency powers in s200 of the Public Health and Wellbeing Act 2008 allow for an officer to make “any other direction that the authorised officer considers reasonably necessary to protect public health”, those are intended to be short-term emergency powers. They ought not be entrenched and unlimited in time.

The Victorian Bar recommends that authorised officers’ powers to investigate and enforce pandemic orders be specifically enumerated, along the lines of the powers that currently exist in Part 9 of the Act.

Protection for detained persons

The Bill provides for the Minister to make a pandemic order that a person be detained or that the detention of a person be extended. Authorised officers may detain a person in a pandemic management area in accordance with a pandemic order that requires the detention of the person. The authorised officer must review every 24 hours whether they are satisfied that continued detention is reasonably necessary to eliminate or reduce a risk to public health.

A detained person may apply to the Secretary of the Department for a review by a Detention Review Officer. However, they have no other avenue of merits review. Whilst the person may apply to the Supreme Court for a writ of habeas corpus or other judicial review, those are not effective review mechanisms where the person’s continued detention depends only upon the authorised officer being “satisfied that continued detention is reasonably necessary to eliminate or reduce a serious risk to public health”.

The Victorian Bar regards it as unacceptable that a person detained by a public servant on such broad and subjective grounds is not able to have the merits of that decision reviewed by an independent body.

The Victorian Bar recommends that the Bill be amended to:

  • More clearly and narrowly define the criteria upon which a person may be detained; and
  • Provide for a detained person to be brought before a court as soon as practicable for the court to review that person’s detention on the merits.[FJM COMMENT – might not a merits review be available, in VCAT, with enabling access to hearing within 24 hours?]

Privilege against self-incrimination – abrogation provisions be removed

Section 212 of the Public Health and Wellbeing Act as it currently stands expressly preserves the right against self-incrimination. The proposed Bill abrogates that right in relation to providing information where required. While it prevents direct admission, of that information, in evidence against the person, providing the information, in a criminal proceeding, it does not prohibit derivative use of that information to gather further incriminating evidence.

The Victorian Bar recommends that section of the Bill be deleted.

Discrimination based on attributes protected by these amendments – dangerously wide

The Bill provides that a pandemic order may apply to, differentiate between, or vary in its application to persons or classes of person, identified by reference to an attribute within the meaning of the Equal Opportunity Act 2010. The Victorian Bar accepts that there may be legitimate public health reasons to discriminate based on certain attributes, such as age, gender, disability or pregnancy, because those attributes may be relevant to a person’s health risk profile. However, a number of the attributes protected by the Equal Opportunity Act are not so apparently relevant. The Victorian Bar is particularly concerned about the inclusion of an express power to make pandemic orders that apply to a person by reference to their political belief, industrial activity or personal association with others.

The Victorian Bar recommends that the Bill be amended to exclude differentiation based on attributes that are of no obvious relevance to a person’s health risk profile.

Application of the Charter of Human Rights and Responsibilities

The Bill relies heavily on the Charter of Human Rights and Responsibilities as a check on the exercise of powers by the Minister and others. However, as the law currently stands, a failure by a decision maker to comply with their obligations, under s38 of the Charter, is not necessarily jurisdictional error and may not necessarily result in the invalidity of the decision or action.

The Victorian Bar recommends that the Bill be amended to expressly provide that in exercising powers, the Minister and authorised officers must comply with the obligations under s38 of the Charter to give proper consideration to human rights and to act accordingly – providing, also, that failure to do so will constitute jurisdictional error.

Declaration of a pandemic

The new powers introduced by the Bill are triggered by the Premier making a pandemic declaration. The Premier must be satisfied of a serious risk to public health arising from a “pandemic disease” or a “disease of pandemic potential”. The term pandemic is not defined.

The Victorian Bar recommends that “pandemic disease” be expressly defined by reference to objective criteria.

[FJM COMMENT – would it not be safer, for this power to rest in the hands of at least one more person (unanimously – or by majority, with a stated further person to have a casting vote). For instance, the declaration could be made by the agreement of the Premier and the Leader of the Opposition, with the Governor having the casting vote (in the absence of agreement). Presumably, this decision would be subject to at least judicial review. Perhaps the Bill might provide that the most recently retired Supreme Court judge (who was available) could conduct an urgent merits review (in a Court room).]

Delegation of the detail of a pandemic order

The Bill allows for the Minister to delegate the detail of a pandemic order. This power to delegate the details of a pandemic order is too broad. It is the Minister who is accountable to Parliament and therefore the Minister ought to be responsible for the content of the pandemic order.

The Victorian Bar recommends that the power of delegation be more narrowly circumscribed.

Publication of information

The Victorian Bar welcomes the proposed new requirements that the Minister has regard to the advice of the CHO, and that the Minister publish the CHO’s advice, a statement of reasons and justifications. This provides a necessary level of transparency that does not currently exist. However, it is not clear why this information must be published within 14 days of the pandemic order and not a shorter timeframe.

Experience of the COVID-19 pandemic has shown that public health directions change frequently and unexpectedly. There is no reason why the reasons behind rapid changes should lag 14 days behind the changes themselves. A 14-day delay in accessing the Minister’s reasons hampers the ability to access efficient and effective judicial review.

The Victorian Bar recommends that the Bill be amended to require publication of the required information at the time that the pandemic order is made, or if that is not practicable, within a much shorter timeframe. [FJM COMMENT – not later than 24 hours, if it were up to me.]

Further consideration of the Bill [to allow a State-wide debate about merits of such an incursion into democratic rights]

This Bill provides a framework for the management of the COVID-19 pandemic going forward, as well as for the management of future pandemics. It authorises extreme limitations of basic liberties of all Victorians and confers enormous powers on the executive. It is among the most important pieces of legislation to come before the Victorian Parliament in decades.

Serious concerns about the Bill have been raised publicly by a number of legal organisations, including the Victorian Bar.

The Victorian Bar urges the government to delay the introduction of the Bill into the upper house, so as to seriously consider the issues that have been raised, and make amendments to the Bill.

The Victorian Bar is ready to provide further assistance to ensure that this Bill better upholds rule of law.

Click here to view a copy of the Victorian Bar’s recommendations on the Public Health and Wellbeing (Pandemic Management) Bill 2021.

Christopher Blanden QC
President of the Bar Council – the Victorian Bar [Email to members, sent 9.11.21]

[Tax Month – November 2021Previous 2021] 9.11.21

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