Over the past 24 hours, the Victorian Bar has become aware of a bill to amend the Public Health and Wellbeing Act 2020 (PHW Act) in respect of, amongst other things, pandemic management. The Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 (Bill) has been made available on the Parliament of Victoria website only this afternoon (27.10.21). [Parliament website: New Bills, Second Reading Speach; Victorian Legislation: Bill Digest Page; Bill; Explanatory Memorandum] On an initial reading of the Bill, the Victorian Bar has grave concerns about some of its content.

The overriding concern is that the Bill confers on the Health Minister what is, in a practical sense, an effectively unlimited power to rule the State by decree, for an effectively indefinite period, and without effective judicial or parliamentary oversight:

  • The Minister’s power is available when a pandemic declaration made by the Premier is in force. It can be expected that such a pandemic declaration will be in force for the foreseeable future.
  • The scope of the power is extremely broad. The Minister may make “any order” that the Minister “believes is reasonably necessary to protect public health”.  The content of the orders is effectively unlimited.
  • The Bill expressly allows the Minister’s orders to discriminate on the basis of an attribute within the meaning of the Equal Opportunity Act. These attributes include, among many others, political beliefs.  Thus, the Bill enables the Minister to make orders targeting people on the basis of their political beliefs if the Minister believes this is reasonably necessary to protect public health.
  • The practical ability to challenge these orders in the Supreme Court is likely to be very limited because the Bill confers a very broad discretion premised on the subjective belief of the Minister that the order is “reasonably necessary”.
  • The orders are subject to disallowance by Parliament only if the Scrutiny of Acts and Regulations Committee recommends it. The Committee can only recommend disallowance on narrow grounds, effectively confined to the order being beyond power or breaching the Charter of Human Rights and Responsibilities Act  The Committee has no power to recommend disallowance because it disagrees with the order.  Further, the government of the day may have a majority on the Committee, as is the case presently.

The Bill also contains many other problematic provisions, including conferring very broad power on authorised officers without effective review or oversight, granting police power to enter premises without a warrant and abrogating privilege against self-incrimination.

The Bill confers powers that can be appropriately described as draconian in authorising virtually unlimited interference with the liberties of Victorian citizens.  Yet the Bill lacks the appropriate checks and balances to ensure the proper exercise of these powers. This represents the biggest challenge to the rule of law that this State has faced in decades

A reasonable period for discussion and debate over the provisions of this Bill was and is necessary. There is simply no excuse for pushing it through in the way it has been.

Victorian Bar NOT consulted

The Minister of Health’s Bill Summary claims the Department and an “Expert Reference Group” (ERG) undertook targeted consultation and names the Victorian Bar as one of the external stakeholders “consulted”.

This is a gross misrepresentation. The Victorian Bar was not consulted.  The President of the Victorian Bar participated in a 45-minute Microsoft Teams meeting organised by the Department of Health on 28 June 2021.  The ERG and numerous other parties also attended.

The broad issue of the declaration of pandemics was raised. There was no further contact.

The Victorian Bar was never provided with a draft Bill.  Two members of the Victorian Bar Council were registered to attend a 1 hour “consultation workshop” with the ERG on 28 September 2021 about the “development of a new pandemic specific part of the PHW Act.”  This workshop was cancelled at short notice and  never rescheduled.

It is unclear why a bill related to issues of management of future pandemics is being subject to a rushed and/or severely curtailed consultation process.

[Email from President: Christoper Blanden QC – to members of the Victorian Bar on 27.10.21]

[Tax Month – October 2021Previous Tax Month] 27.10.21

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