ACT Law Society ‘disappointed’ with state government’s failure to consult

ACT Law Society ‘disappointed’ with state government’s failure to consult

06 December 2021 By Naomi Neilson
ACT Law Society

Much like Victoria’s pandemic bill, the ACT government has introduced legislation that would give the chief health officer and minister for health the power to issue public health directions. However, unlike Victoria, this was done without significant consultation with the legal profession, leaving the ACT Law Society disappointed.

The ACT Law Society has expressed disappointment with the state government over its failure to consult with the legal profession prior to introducing the controversial Public Health Amendment Bill 2021 (No 2) into Parliament. While supportive of the measures to protect the community, the ACT Law Society said it was not afforded the appropriate time to properly consider the bill and its potential safeguards.

Advertisement
Advertisement

“Appropriate public scrutiny is critical to the introduction of any piece of legislation. It is even more critical when considering legislation such as this, that involves an expansion of executive power,” the Law Society said in a statement. “The ACT does not have the benefit of the upper house to add a second layer of scrutiny, so consultation [with the legal profession] is particularly important in our jurisdiction.”

The ACT Law Society said a similar, controversial Victorian bill involved “significant consultation” with the legal profession. It said it was surprising that given this consultation, and the media attention on the public’s response to the Victorian bill, the ACT government “chose not to seek input from its peak legal bodies”.

SPONSORED CONTENT

The ACT bill proposes to enable the executive, minister for health, and chief health officer to issue public health directions to protect the community from COVID-19. Chief Minister Andrew Barr said public health emergencies are declared in response to extreme situations, and the ACT is keen to keep its intervention proportionate.

In announcing the bill, Mr Barr said the ACT government has learnt from the experiences of other jurisdictions in the development of its legislation. Because of this, the bill will not give the government the power to impose lockdowns or curfews, and it will not allow it to prohibit businesses, events or activities from running.

Now that the bill is available, the Law Society said it would undertake a considered review. On an initial assessment, it found several concerns, including the proposed expansive powers that are to be implemented via notifiable instruments, “which may not be subject to sufficient legislative oversight”. The requirement for the Human Rights commissioner to scrutinise may be “overridden in some circumstances”.

Further, affected persons will not be able to apply for an exemption from complying with a vaccination direction, and it is unclear who would be an appropriate internal appointment to review a decision of the minister or chief health officer.

“We welcome the inclusion of an external reviewer in the draft bill, as this was a notable omission from the original drafting of the Victorian legislation. However, the decisions to which an external review apply appear narrow. Further, as a direction remains in force while the review is undertaken and no timeframes are yet to be in place, this is potentially unfair,” the ACT Law Society found.

ACT Law Society ‘disappointed’ with state government’s failure to consult
Intro image
lawyersweekly logo