Legal bodies, QCs oppose new Victorian pandemic bill

Legal bodies, QCs oppose new Victorian pandemic bill

11 November 2021 By Naomi Neilson
new Victorian pandemic bill

A damning letter opposing Victoria’s new pandemic legislation granting Premier Dan Andrews and the government “extraordinary powers” to rule the state without proper parliamentary oversight or the usual checks and balances has extended from 14 signatories out to 60 Queen’s counsel and the Victorian Bar Association.

Under the legislation, Mr Andrews was given sweeping powers to not only declare pandemics but to enforce public health orders for three months at a time. If passed, key legal figures said it would grant the Victorian government an “unlimited and practically unreviewable” power to rule the state by decree on a long-term basis.

The letter, circulated at the end of October, has since amassed support from another 46 Queen’s counsel (QCs) concerned that the low threshold and extraordinarily broad definitions within the bill will make it “practically impossible” for an individual to challenge the merits of a public health order in court. Instead, if a person wishes to, they must reach a “very high bar” of establishing legal unreasonableness.

“Given the low threshold for the making of the declaration – and the fact that COVID-19 is unlikely to go away any time soon – we can expect a pandemic declaration to be in force for the foreseeable future. Thus, the minister’s power to make pandemic orders will remain in place for the foreseeable future,” the letter read.

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Once a declaration is in place, the only other requirement for the minister to make a public health order is that he or she must believe the order is “reasonably necessary to protect public health”. Not only is this threshold low, the QCs argued, but it is enough if the minister “subjectively believes that the order is reasonably necessary”.

The QCs also took aim at the bill’s wording, which covered a potential argument that the words “any order” should be read down by including an “extremely broad” list of examples. This includes orders that will require detention of persons, restricting movement, regulating public or private gatherings, requiring the provision of information and requiring testing and medical exemptions of residents.

The bill also provides “extremely broad and unchecked powers on authorised officers” that includes taking any action or giving any direction “that the authorised officer believes is reasonably necessary to protect public health”. It could mean an individual authorised officer will single-handedly have the power to shut down a political protest if the officer subjectively believes it is reasonably necessary.

“It is, in our view, no answer to these criticisms to say that the bill contains more safeguards than presently exists for the emergency powers under the Public Health and Wellbeing Act 2008. The emergency powers are just that – extraordinary powers that are available to be exercised for only a very short period,” the letter said.

“It is one thing to allow temporary rule by decree to deal with an unforeseen and extraordinary emergency in circumstances of extreme urgency. It is something else altogether to entrench rule by decree as a long-term norm. In our view, this is antithetical to basic democratic principles and should not be allowed to happen.”

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In October, Victorian Bar president Christopher Blanden QC said the primary concern is that the bill confers effectively unlimited powers on the health minister to rule by decree, for an indefinite period and without effective juridical or parliamentary oversight. Mr Blanden said it is the “greatest challenge to the rule of law” in decades.

In a submission published recently, the bar pressed that the rule of law, the sovereignty of parliament and the checks and balances of a democratic Westminster system of government “must be respected, even in times of emergency or crisis”. While broad emergency powers may be justified, they are not appropriate long-term.

“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,” the bar said.

“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 and the signatories of the letter have urged 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 Law Institute of Victoria (LIV) also weighed in, clarifying that while it supports proactive and responsive decision-making for the purposes of preventing and managing the outbreak and spread of pandemics, it is concerned that the bill in its current form falls short of sufficiently protecting the rights of Victorians.

LIV president Tania Wolff said that the experience of Victorians over the last 20 months has demonstrated how important it is to have effective, transparent and accountable measures in place to contain the outbreaks. The bill in its current state “is not fit for the purpose of a legislative framework to contain a pandemic”.

“When considering such fundamental legislation, it’s important to consider how it might be used in future political circumstances and by governments of unknown political persuasions. The LIV strongly encourages all members of parliament to reconsider this bill and make the changes necessary,” Ms Wolff said.

The signatories are:

The Honourable James Judd QC, Jeff Sher QC, The Honourable Neil Brown QC, Andrew J Kirkham AM RFD QC, Ross H Gillies QC, P Gerard Nash QC, Christopher J Canavan QC, Paul Willee RFD QC, George H Golvan QC, John T (Jack) Rush QC, Noel Magee QC, David Shavin QC, Peter J Jopling AM QC, William T Houghton QC, Patrick Tehan OAM QC, Michael W Shand AM QC, Paul A Scanlon QC, Nunzio Lucarelli QC, Jennifer J Batrouney AM QC, Vincent A Morfuni QC, James W S Peters AM QC, Peter W Collinson QC, Christopher J Wren QC, Gavin Silbert QC, Craig W R Harrison QC, David L Brustman QC, Philip D Crutchfield QC, Peter Chadwick QC, Albert Monichino QC, Daryl J Williams AM QC, Georgina L Schoff QC, David J Batt QC, Stuart Wood AM QC, Mark A Robins QC, Michael G Roberts QC, Nicholas D Hopkins QC, Gregory P Harris QC, Roisin N Annesley QC, Robert Hay QC, Jeremy A F Twigg QC, Jonathan P Brett QC, Aine M Magee QC, Chris B O’Grady QC, Gerard D Dalton QC, Michelle Britbart QC, Daniel D Gurvich QC, Penny A Neskovcin QC, Marcus Clarke QC, Paul J Hayes QC, Michael G R Gronow QC, Suresh Senathirajah QC, Stewart J Maiden QC, Richard P P Dalton QC, Dr Andrew Hanak QC, Anthony T Strahan QC, Cam H Truong QC, Eugene F Wheelahan QC, Matthew N C Harvey QC, Donald J Farrands QC, Julianne E Jaques QC, Darryl J Burnett, Robyn W Sweet, and Dimitri Ternovski.

Legal bodies, QCs oppose new Victorian pandemic bill
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