Australian Lawyers Call out State Government for ‘Misrepresenting’ Support for Sweeping New Pandemic Law

The biggest challenge to rule of law in Victoria: President
By Daniel Y. Teng
Daniel Y. Teng
Daniel Y. Teng
October 27, 2021 Updated: October 28, 2021

Peak legal body, the Victorian Bar, has criticised Premier Daniel Andrews and his government for “grossly misrepresenting” its support for a sweeping Pandemic Bill that will grant extensive powers to the premier and health minister.

The comments were made by Christopher Blanden Q.C. in an internal email to Victorian Bar members who also warned that the government’s impending Public Health and Wellbeing (Pandemic Management) Bill 2021 (pdf) would allow “unlimited interference” in the liberties of the state’s residents.

Debate is ongoing as the government tries to rush the bill through Parliament, conceding in a summary of the new law that because of the “short timeframe and the complexity involved in developing this bill, consultation has not been as extensive as it would normally be.”

At the same time, the summary also claimed that the Health Department and an “Expert Reference Group (ERG)” had undertaken consultation to assist with the creation of the bill and to engender support for its introduction, claiming to have met with multicultural, civil rights, public health, and legal bodies—including the Victorian Bar.

“This is a gross misrepresentation,” Blanden wrote. “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 June 28, 2021.”

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A general view of the Supreme Court in Melbourne, Australia, on Aug. 20, 2019. (Darrian Traynor/Getty Images)

“Two members of the Victorian Bar Council were registered to attend a one hour ‘consultation workshop’ with the ERG on Sept. 28, 2021, about the ‘development of a new pandemic specific part of the Public Health Act.’ This workshop was cancelled at short notice and never rescheduled,” he added.

Blanden also said the Victorian Bar was not provided with a draft of the Bill and could only view it when it was made available close to when parliamentary debates began.

The new bill is designed to establish a permanent structure for the government to deal with future pandemics and will supersede the pre-existing “State of Emergency” powers provided under the Public Health and Wellbeing Act 2008, which is due to expire on Dec. 15, and has been extended twice already.

While the bill streamlines certain operational aspects of the government and establishes new safeguards around privacy rights, it also contains wide-ranging provisions that give the premier and health minister unprecedented power over the state.

These include “broad powers” for the health minister to make pandemic orders, on the advice of the chief health officer, where it is deemed “reasonably necessary” to “protect public health.” Further, the premier can “declare a pandemic” and extend such a declaration three-months at a time—the number of extensions is unlimited.

Pandemic orders would give the premier and health minister the power to issue new public health decrees including closing borders, mask mandates, and introduce health restrictions.

Police will also be able to enter private premises without a warrant to implement such decrees.

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Police patrol the quiet streets of Melbourne, Australia, on Oct. 4, 2021. (William West/AFP via Getty Images)

Further, restrictions can be “categorised” and target classes of individuals, even based on vaccination status. New record penalties have also been introduced including two-year prison terms and fines of AU$90,000 for “aggravated offences” were an individual breaches a health order and is deemed to have caused a “serious risk” to the health of another.

Although oversight measures have been introduced to offset the premier and health ministers powers, the Bar said, in reality, the oversight was limited.

“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,” Blanden said, noting that the Committee did not have grounds to act if it simply disagreed with an order.

“Further, the government of the day may have a majority on the Committee, as is the case presently,” he added.

Blanden said clauses such as “reasonably necessary” were too broad and subjective and would be difficult to challenge in court.

“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,” he said.

“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,” he added.

“This represents the biggest challenge to the rule of law that this state has faced in decades.”