Explainer: Victoria’s proposed new pandemic law
The COVID-19 pandemic has required governments around the world to make difficult and high stakes decisions, balancing the need to protect our right to life and health against other rights and freedoms such as our rights to education, work, to see loved ones, to protest, worship and more.
Most states and territories across Australia have relied on emergency laws to manage the pandemic. These laws give government and health officials broad, temporary powers to respond to serious and immediate threats to public health.
The Victorian Government first declared a state of emergency on 16 March 2020. The law at the time prevented a state of emergency from being extended beyond 6 months. While Parliament has since approved amendments which allow further extensions until 16 December this year, Victoria’s existing emergency laws were clearly not designed with long term pandemics in mind.
Now, with the COVID-19 pandemic continuing and Victoria’s current state of emergency set to expire, Victoria is developing a new pandemic law to support the ongoing management of COVID-19 and any future pandemics.
Our previous explainer set out how a new pandemic law should safeguard democracy and human rights. The Victorian Government has now released its proposed new pandemic law – the Public Health and Wellbeing Amendment (Pandemic Management) Bill (the Bill).
Our overall view on the Bill
Overall, the Bill is a significant improvement on the current law and incorporates many of the changes the Human Rights Law Centre and others have been calling for. However, some further improvements are needed to ensure a best-practice approach which fully incorporates the lessons of the last 20 months and builds public trust in the management of COVID-19 and future pandemics. Victoria is the first jurisdiction in Australia to develop specific new pandemic laws, learning from the COVID-19 experience. We have a unique opportunity to get this right.
Below, we outline the main positive changes that the Bill would introduce. We also outline some of the key areas needing amendment. The Bill is long and detailed. Our explainer does not cover every issue in it.
Positive changes
Transparency and accountability
The Bill transfers the power to declare a pandemic to the Premier, placing responsibility for this key threshold decision with the leader of the state government who is directly accountable to the people at election time.
Similarly, the power to make pandemic orders shifts from the Chief Health Officer and authorised officers, to the Health Minister – another senior and directly accountable member of the government.
Both the Premier and the Health Minister must consult with the Chief Health Officer, share the Chief Health Officer’s health advice, and report on the reasons for their decisions. The Premier needs to provide this information to Parliament. The Health Minister must publish it online (although we think this should be done immediately, not within 14 days as the Bill currently provides). The Health Minister must also report on how their decisions impact people’s human rights and why they think those limitations are necessary and proportionate.
These changes would significantly improve transparency and accountability for key decisions made in a pandemic response. They would increase transparency on human rights analysis and give the public much more information on the health advice relied on by government in making decisions.
Oversight and scrutiny
The Bill gives the Victorian Parliament’s scrutiny committee – the Scrutiny of Acts and Regulations Committee (SARC) – the power to review all pandemic orders made by the Health Minister, including on human rights grounds. SARC also has the power to recommend that pandemic orders be varied or cancelled, and Parliament then has the power to act on those recommendations.
Once a pandemic declaration is extended beyond four weeks, the Bill requires the Health Minister, in consultation with the Chief Health Officer, to establish a new multi-disciplinary expert committee – the Independent Pandemic Advisory Committee. The Committee will be made up of subject matter experts and community representatives and be able to review decisions and pandemic orders and table their findings in Parliament.
Both the involvement of the SARC and the establishment of this new expert advisory committee would improve the oversight and scrutiny of key decisions made in the pandemic response.
Privacy safeguards
The Bill contains safeguards around the collection and use of QR code and contact tracing data. Under the proposed law, contact tracing information would only be able to be shared or used for public health purposes, to enforce pandemic orders, with a person’s consent or in other very limited circumstances where there is an imminent threat to life, safety or welfare.
Fairer approach to fines
The Bill introduces changes to Victoria’s fines system to address some of the ways in which the enforcement of public health directions has disproportionately impacted disadvantaged members of our community. While a lot of the detail is left to regulations which are still being developed, the proposed new law would allow people who meet eligibility and hardship criteria to seek reduced financial penalties.
To ensure fairness and consistency, the regulations and policy which give effect to these changes should make clear that the new approach to fines also applies to fines already issued under the existing law during the COVID-19 pandemic.
Improvements needed
Reasonableness safeguard on the Premier’s power to declare a pandemic
The Premier can declare a pandemic when they are “satisfied that there is a serious risk to public health arising from a pandemic disease or a disease of pandemic potential”. However, there is no express requirement that the Premier’s personal satisfaction of this risk is also objectively reasonable. In contrast, the Health Minister can only make pandemic orders that they believe are “reasonably necessary”.
The requirement that the Premier must consult with the Chief Health Officer and consider their advice before making or extending a pandemic declaration is an important safeguard. However, there is still a risk that the omission of an express requirement around reasonableness, especially when it is included elsewhere in the law, may unjustifiably limit legal accountability for unreasonable pandemic declarations or extensions.
Recommendation 1: Amend the Bill to require that the Premier be “satisfied on reasonable grounds” of the need to declare or extend a pandemic.
Outer time limit on Premier’s power to extend a pandemic declaration
The Premier can make a pandemic declaration and extend it indefinitely in periods of up to 3 months. Safeguards around this power being exercised appropriately include that the Premier must consult with and consider the Chief Health Officer’s advice and be satisfied there is a serious risk to public health arising from a pandemic disease or a disease of pandemic potential. The Premier must also revoke a pandemic declaration as soon as they are satisfied that there is no longer a serious risk to public health.
Nevertheless, given the extreme powers that can flow from the making of a pandemic declaration, it is reasonable and appropriate to set an outer time limit on the ability to extend it.
The existence of an outer time limit under the current law is why Victoria now has this opportunity to consider and improve its public health legislation. Requiring Parliamentary approval for extensions beyond a set outer limit would ensure we have the same opportunity in any future prolonged pandemics.
Recommendation 2: Amend the Bill to impose an outer time limit on the ability of the Premier to extend a pandemic declaration, with any extension beyond that point requiring parliamentary approval.
Requiring the Minister to act compatibly with human rights when making pandemic orders
Victoria’s Human Rights Charter requires public officials, including the Health Minister, to properly consider and act compatibly with human rights in carrying out their functions and making decisions. However, previous court decisions have found that this obligation may not apply when making “subordinate instruments”. It’s not clear yet how these court decisions would apply to pandemic orders under the Bill. But the government is currently arguing in the Supreme Court that its officials do not need to act compatibly with human rights when making public health directions under the current law. This is very concerning.
One of the Bill’s stated objectives is to ensure that “any limitations on the human rights that are protected by the Charter of Human Rights and Responsibilities should be demonstrably justified in accordance with section 7(2) of that Charter.” To make sure that the Bill actually achieves this objective, it should expressly require the Minister to properly consider and act compatibly with human rights in the Charter when making any pandemic order.
Recommendation 3: Amend the Bill to expressly require the Minister to properly consider and act compatibly with human rights in the Charter when making any pandemic order.
Appeal rights for detention and other significant restrictions
Both the current Act and the Bill give individual authorised officers the power to detain people. Authorised officers are not judges or police officers. The hotel quarantine inquiry and media reporting highlighted that public servants from other departments, such as Parks Victoria, became authorised officers during the COVID-19 pandemic without adequate training or public health experience. Giving detention and other significant powers to authorised officers reinforces the need for very strong safeguards around their use.
Unfortunately, the Bill merely replicates the existing system of non-binding review of detention by a Detention Review Officer, where the only possible outcomes of the review are a person’s detention being confirmed or a non-binding recommendation being made to the Chief Health Officer. The Bill also provides that quarantine and isolation do not necessarily constitute detention when, under human rights law, they can.
Under the current Act, aside from the non-binding internal review of detention, the only realistic way to test the lawfulness of often severe public health restrictions such as detention, is to bring proceedings in the Supreme Court using administrative law actions, potentially in combination with the Victoria’s Human Rights Charter. Supreme Court action is expensive, risks a potentially huge legal costs order if the person loses and is out of reach of most people.
We note that a 2015 review of Victoria’s Human Rights Charter recommended introducing the ability to bring human rights proceedings in the low cost, accessible jurisdiction of VCAT. The Andrews Government has not acted on this.
Any person deprived of their liberty – in a pandemic or otherwise – should be able to seek review of their detention. This review should be accessible, timely, independent and binding. Review should not be limited to narrow administrative law grounds. It should include full independent merits review of the decision.
This safeguard would help avoid the injustice that can arise from the blunt and arbitrary application of otherwise necessary and proportionate measures. Acting on the 2015 recommendation to give people the power to bring VCAT proceedings under Victoria’s Human Rights Charter would also provide a further vital safeguard against overreach in the use of pandemic powers under the Bill.
Recommendation 4: Amend the Bill to give people who are detained the power to access an independent, timely and binding merits review of their detention in VCAT or a similar body.
Recommendation 5: Implement recommendation 27(a) of the 2015 review of Victoria’s Human Rights Charter to give people the power to bring VCAT proceedings to assess whether actions by government authorities comply with the Charter.
Safeguards when forcing people to answer questions
The Bill abrogates the privilege against self-incrimination by giving authorised officers the power to force people to provide certain information on request, even where doing so might incriminate them. Failure to comply with a direction to provide information is an offence carrying a fine of up to $21,720.
While the privilege against self-incrimination is generally sacrosanct, we note the public health justification for forcing people to provide crucial and timely information in the pandemic context. We also acknowledge the prohibition on using the information provided in any action against the person (other than an action for giving false or misleading information.)
However, further safeguards are needed to ensure these provisions operate appropriately and don’t disproportionately impact disadvantaged sections of the community who may have more frequent interactions with law enforcement and lower levels of trust. These safeguards should include practical measures like written materials clearly explaining why a person is being required to provide certain information how it can and cannot be used.
Importantly, the Bill should also be amended to require authorisation from the Minister or Secretary or other senior public official if someone is being compelled to provide information.
Recommendation 6: Amend the Bill to require a direction compelling someone to provide information to be authorised by the Minister, Secretary or similar senior public official.
Aggravated offence
The Bill creates a new and very broad aggravated offence which would mean people face up to two years’ prison or a massive fine if they fail to comply with a pandemic order and they “know or ought to know that the failure to comply is likely to cause a serious risk to the health of another individual”.
This offence could potentially apply to two people walking together in a remote area without masks, where the only people they endanger is each other. It could also apply in vastly different types of protest situations, ranging from mass gatherings at the height of community transmission to smaller gatherings of a few too many people at a time of lower risk.
While we can understand the potential policy rationale for an aggravated offence, the current broad drafting creates risks it will be used unpredictably, inconsistently and disproportionately against certain groups, as has been the case with enforcement measures throughout the current pandemic. We note there are offences already in the Crimes Act which could be used, for example, if a person knows they have COVID-19 and deliberately or recklessly endangers the health of others.
Recommendation 7: Remove the aggravated offence or amend it to narrow its scope.
Allowing safe protest actions
Pandemics may justify some limitations on people’s rights to protest in public. However, since the commencement of the COVID-19 pandemic, we have seen excessive blanket restrictions on public protest that have gone beyond what is necessary to protect public health and which have banned COVID-safe protest actions.
The Bill should ensure, via a limitation on the Minister’s power to make pandemic orders, that it should not be an offence to leave home for the purpose of a protest that is otherwise compatible with pandemic orders.
Recommendation 8: Amend the Bill to expressly provide that it should not be an offence to leave home for the purpose of a protest that is otherwise compatible with pandemic orders.
Narrowing the discrimination law carve out
The Bill allows a pandemic order to treat people differently based on an attribute that is otherwise protected by the Equal Opportunity Act.
We recognise that it may at times be justified on health grounds to treat people differently on the basis of protected attributes such as age. We also recognise that because the Minister can only make pandemic orders that are “reasonably necessary to protect public health”, the Minister would not be able to lawfully make an order that treated people differently based on attributes with no connection to public health, such as their political belief.
However, the discrimination law carve out in the Bill is too broad and on its face allows discriminatory conduct beyond what could possibly be necessary to effectively manage a pandemic. Its breadth, if it is not amended, risks undermining public confidence in the appropriate management of pandemics.
Recommendation 9: Amend the Bill to narrow its scope, for example by making clear that only attributes with a clear nexus to public health can form the basis of differential treatment under pandemic orders.
Publication date: 10 November 2021
This explainer is not legal advice
The contents of this publication do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as legal advice. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.