Prepared by Dr Sharon Rodrick
Background and Lack of Consultation
The Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 was introduced into the Victorian Legislative Assembly on Tuesday 26 October and was passed by the Legislative Assembly on 28 October. Members of the Assembly were not given access to the 116 page Bill until shortly before it was introduced into the parliament and it was only made available on the parliamentary website on 27 October. The Bill was introduced in the Legislative Council on 28 October and will be debated on 16-18 November. It needs 20 votes to pass (out of 39 sitting members). The Andrews Government has 17 votes and, if past support is any indication, will probably get the votes of Fiona Patten (Reason party), Andy Meddick (Animal Justice party) and Samantha Ratnam (Greens party).
The Bill summary issued by the Minister of Health claims that targeted consultation was undertaken with certain external stakeholders, including the Victorian Bar. However, in a letter to members, the President of the Bar Council denied that any such consultation occurred and claimed that at no time was a draft Bill provided to the Bar for comment. The extent of consultation with other external stakeholders is unknown.
The primary purpose of the Bill is to amend the Public Health and Wellbeing Act 2008 (Vic) to provide for the effective management of pandemics. It is designed to replace the state of emergency powers which have been employed since the outbreak of Covid 19. The primary way in which the Bill’s purpose is accomplished is by the insertion of a new Part 8A ‘Protection of life and public health during pandemics’ into the Public Health and Wellbeing Act 2008 (Vic).
As its name suggests, the stated objective of Part 8A is to protect public health and wellbeing in Victoria by establishing a regulatory framework for:
(a) preventing and managing the serious risk to life, public health and wellbeing presented by the outbreak or spread of pandemics and diseases of pandemic potential;
(b) supporting proactive and responsive decision-making for the purposes of preventing and managing the outbreak or spread of pandemics and diseases of pandemic potential;
(c) ensuring that decisions made and actions taken under this Part are informed by public health advice and other relevant information including, but not limited to, advice given by the Chief Health Officer;
(d) promoting transparency and accountability in relation to decisions made and actions taken under this Part; and
(e) safeguarding contact tracing information that is collected when a pandemic declaration is in force.
The objective is laudable. The problem is that the powers conferred by the Bill on the Premier, the Minister and the Chief Health Officer (CHO) in the pursuit of public health and wellbeing are extremely concerning. This short review will highlight the main powers conferred on each and outline the concerns.
The Bill also states that the Victorian Parliament intends that in the administration of Part 8A, any limitations on the human rights that are protected by the Victorian Charter of Human Rights and Responsibilities should be demonstrably justified. Rights that might be violated by the Bill include: the right not to be subjected to medical or scientific experimentation or treatment without one’s full, free and informed consent (cl 10); freedom of movement (cl 12); peaceful assembly and freedom of association (cl 16); taking part in public life (cl 18); and the right to liberty and security of person (cl 21). The notion that human rights must sometimes be diminished or sacrificed to accommodate other human rights or public interests is well known and accepted, although the circumstances in which, and extent to which, this is justifiable is inevitably a fertile source of dispute. However, if the last 20 months are any indication, there has been a distinct lack of proportionality between protection of public health and human rights, the latter almost always yielding to the former. The Bill does attempt to address this via the creation of an Independent Pandemic Management Advisory Committee, whose membership will have a person or persons with expertise in, inter alia, human rights. However, the relative silence of the Victorian Equal Opportunity and Human Rights Commission during the Victorian lock downs does not give much cause for hope that persons with expertise in human rights will be willing to defend them before a government that is committed to prioritising its health policies.
Pandemic Declarations (Premier)
Power to make pandemic declarations
The Premier alone can make a pandemic declaration. He can do so if satisfied that there is a ‘serious risk to public health’ arising from a pandemic disease or a disease of pandemic potential.
Under the Bill, an infectious disease is a ‘pandemic disease’ at a particular time if, at that time, there is a pandemic outbreak of that infectious disease. An infectious disease is a ‘disease of pandemic potential’ at a particular time if one of two circumstances exists:
- at that time, the infectious disease has the potential to give rise to a pandemic but is not yet a pandemic disease; or
- all of the following apply: before that time, the infectious disease was a pandemic disease, at that time, it is no longer a pandemic disease but has the ongoing potential to give rise to a pandemic.
A ‘serious risk to public health’ is defined in the Public Health and Wellbeing Act 2008 (Vic) but the definition will be amended by the Bill to add that a pandemic disease or a disease of pandemic potential may pose a material risk of substantial injury or prejudice to the health of human beings, even when the rate of community transmission of the disease in Victoria is low or there have been no cases of the disease in Victoria for a period of time.
The upshot is that the Premier may make a pandemic declaration whether or not, at the time the declaration is made, the pandemic disease is present in Victoria or the disease is a disease of pandemic potential that is present in Victoria.
The pandemic declaration can apply to throughout Victoria or in one or more specified areas of the State.
How long does a pandemic declaration remain in force?
The period for which a pandemic declaration can continue in force must not exceed four weeks. However, the declaration can be extended, irrespective of whether the disease is present in Victoria at the time of the extension, if the Premier is satisfied that there continues to be a serious risk to public health. The period of each extension can be no longer than three months, but there is no limit on the number of times a pandemic declaration may be extended.
The Premier is required to consult with and consider the advice of the Minister (presumably the Health Minister) and the CHO before making a pandemic declaration, but is not required to accept and act on such advice. The same applies to extensions of the declaration. At no stage is the Premier required to seek or obtain parliamentary approval, either for the making of a declaration or its extension.
If a pandemic declaration is made, varied, extended or revoked, the Premier must prepare a report which must include: a statement of the reasons for the making, variation, extension or revocation; a copy of the advice of the Minister and the CHO; and a summary of pandemic orders made and public health risk powers and the pandemic management powers exercised during the period. If a House of the Parliament is sitting the day after a pandemic declaration (or a variation, revocation or extension thereof) comes into force, the report to be laid before that House on that day. If a House is not sitting that day, the report must be given to the Clerk of the House within three business days, and the Clerk must distribute it to the members of each House and ensure that it is laid before the house on the next sitting day.
These provisions appear to inject transparency into the making of such orders. However:
- The advice of the Minister and CHO is highly unlikely to differ from the opinion of the Premier and even if it did, it is highly unlikely that any differences would be divulged in the advice presented to parliament;
- The advice of the CHO has proven over the past two years to be extremely risk averse – for example, the sixth lockdown began on 5 August when the daily case number was eight (in a state with a population of 6.6 million people);
- The advice of the Minister and the CHO will be confined to the health implications of a disease, not the multitude of other consequences that a pandemic declaration will unleash;
- The Andrews government has repeatedly declined to release the health advice it has acted on over the past 20 months, despite numerous freedom of information requests to do so. Given the Government’s propensity for secrecy, any health advice released to parliament is likely to be highly curated, general and uninformative;
- A failure to comply with the requirements in the legislation relating to reporting the making, variation, extension or revocation of a pandemic declaration is stated not to affect the validity of the declaration or its variation, extension or revocation. In other words, there are no consequences if the Premier ignores the requirements.
Pandemic Orders (Minister)
Power to make orders and types of orders
Once a pandemic declaration is made, the Minister is empowered to make any order the Minister believes is ‘reasonably necessary to protect public health’.
Such orders may include (but are not limited to) an order that:
- requires persons to be detained in a pandemic management area – which simply means the area specified in a pandemic declaration to which the declaration applies – for the period specified in the order or in the circumstances specified in the order. The period of detention cannot exceed the period that the Minister believes is reasonably necessary to eliminate or reduce a serious risk to public health. The period can be extended and one reason for doing so can relate to a refusal or failure to comply with a requirement to undergo a medical examination or medical test;
- restricts movement in a pandemic management area;
- requires movement in, into or from a pandemic management area;
- prevents or limits entry to a pandemic management area;
- prohibits or regulates gatherings, whether public or private, in a pandemic management area;
- requires the use of personal protective equipment in a pandemic management area (this might include wearing a mask);
- prohibits or regulates the carrying on of activities, businesses or undertakings in a pandemic management area;
- requires the provision of information (including information about the identity of any person), the production of documents or the keeping of records;
- requires the medical examination or testing of persons in a pandemic management area or as a condition of entry to a pandemic management area
- requires the quarantining, destruction or other management of disease vectors in a pandemic management area (a disease vector means an animal, bird or insect that is capable of carrying a pathogen that is transmissible to humans and capable of causing disease.
A pandemic order can also make provision for requiring a specified person or class of persons to obtain a permit for an activity, a business, an undertaking, a gathering or movement within or entry into an area.
A pandemic order must state that a refusal or failure to comply with it without a reasonable excuse is an offence.
As has been observed, these are extremely broad powers that will permit the minister to rule by decree for as long as a pandemic is deemed to exist. In view of the wide discretionary nature of such powers – the Minister need only believe that these orders are reasonably necessary to protect public health – their exercise will be very difficult to challenge.
Pandemic orders override subordinate instruments
A pandemic order has effect despite anything to the contrary in any subordinate instrument, other than a subordinate instrument made under the Charter of Human Rights and Responsibilities.
Persons to whom pandemic orders can apply
A pandemic order can apply all persons, specified persons or to specified classes of person. They cannot, however, be expressed to apply to a single named individual. In particular, the Bill makes it clear that a pandemic order may apply to, differentiate between, or vary in its application to persons or classes of person identified by one or more of the following—
- their presence in a pandemic management area or in a particular location in a pandemic management area;
- their participation in or presence at an event;
- an activity that they have undertaken or are undertaking;
- their characteristics, attributes or circumstances. The reference to attributes encompasses ‘attributes’ within the meaning of the Equal Opportunity Act 2010 which include age, disability, sex, industrial activity, political belief or activity, religious belief or activity etc. This empowers the Minister to defy the State’s anti-discrimination laws.
This power has great potential for misuse, as it empowers the Minister to target groups that are at odds with the government and its policies, such as protestors who have been present at a protest and persons who are members of an opposing political party and who have attended a political event. Furthermore, in view of the Andrews Government’s hostility towards people of faith – as evidenced by the anti- conversion legislation and the move to control the employment practices of religious institutions – it also gives the Minister the opportunity to specifically target religious gatherings.
Before making a pandemic order, the Minister may consult any other person the Minister considers appropriate and must request the advice of the CHO in relation to two matters:
- the serious risk to public health posed by the disease specified in the pandemic declaration to which the proposed pandemic order relates; and
- the public health measures the CHO considers necessary or appropriate to address this risk.
The advice can be oral or written. The Minister is obligated to have regard to such advice in making a pandemic order and may have regard to any other matter he or she considers relevant including, but not limited to, social and economic matters. In so far as the Minister is obligated to have regard to CHO advice, this is a stronger requirement than that imposed on the Premier when making a pandemic declaration. However, there is no requirement that the advice be followed.
It should also be noted that the CHO is only one medical professional and there is no guarantee that his or her medical opinion represents mainstream medical opinion. Moreover, if the events of the past 20 months are any indication, the CHO is likely to rely heavily on computer modelling and projections when advising the Minister, many of which have overstated the numbers of cases and hospitalisations.
The Independent Pandemic Management Advisory Committee
The Minister is obliged to establish an advisory committee, called the Independent Pandemic Management Advisory Committee, to provide advice in relation to managing the pandemic disease or disease of pandemic potential to which the pandemic declaration relates. The Committee must be established within 30 days after the first extension of a pandemic declaration. Appointments to the Committee are made by the Minister in consultation with the CHO. The Minister must ensure that as far as reasonably practicable that the members of the Committee collectively have skills, knowledge and experience in matters relevant to the response to, and management of, a pandemic disease or disease of pandemic potential, including in relation to matters of public health, infectious diseases, primary care, emergency care, critical care, law, human rights, the interests and needs of traditional owners and Aboriginal Victorians and the interests and needs of vulnerable communities (which may include communities where persons experience or are at risk of disadvantage or susceptibility due to social disadvantage, cultural factors, homelessness or family violence).
The Committee’s functions are to review and provide advice to the Minister in relation to the exercise of powers under Part 8A and to provide reports to the Minister (which may include non-binding recommendations). The Minister can request the Committee to provide advice on particular matters and the Committee must oblige, but otherwise the Committee is not subject to Ministerial direction or control. It cannot rescind or amend orders made by the Minister. All Committee reports must be tabled in parliament within six days of being provided to the Minister.
The Andrews Government has relied on this provision as proof of transparency. The extent to which the Committee can influence the Government remains to be seen.
Duration of pandemic orders
A pandemic order ceases to be in force at the end of the period specified in the order, when the order is revoked or, if the pandemic declaration to which the order relates ceases to be in force, upon that cessation.
The Minister may at any time vary, extend or revoke a pandemic order. The same consultation requirements apply as apply to the making of such orders.
Copies of pandemic orders made, varied, extended or revoked by the Minister must be published on the Pandemic Order Register before they come into force. Furthermore, within 14 days after a pandemic order is made, varied, extended or revoked a copy or written record of the advice given by the CHO must be published on an Internet site maintained by the Department, along with a statement of reasons for the making, varying, extension or revocation of the order and an explanation of the human rights protected by the Charter of Human Rights and Responsibilities that are or may be limited by the order and how any such limitations are demonstrably justified. Given the short duration of many of the stages under the current Victorian roadmap, 14 days seems a long time. By the time it has elapsed, the orders made by the Minister might be set to be replaced by a new set.
This would appear to be an improvement on the existing state of affairs, except for the fact that a failure to comply with these requirements is expressed not to affect the validity of the pandemic order or any variation, extension or revocation of such an order.
Pandemic orders (and variations, extensions and revocations) must be laid before each House of Parliament within six sitting days after the order comes into force, but, again, the validity of the orders are not affected by non-compliance. Such orders must also be published in the Government Gazette.
The role of the Scrutiny of Acts and Regulations Committee (SARC)
Reports to parliament
SARC is given power to report to each House of Parliament if it considers that a pandemic order (or an instrument that extends, varies or revokes such an order) that has been laid before Parliament:
- does not appear to be within the powers conferred by this Act (in view of the width of the Minister’s discretion it is difficult to envisage circumstances in which an order could be beyond power); or
- without clear and express authority being conferred by this Act: has a retrospective effect; imposes any tax, fee, fine, imprisonment or other penalty; purports to shift the legal burden of proof to a person accused of an offence; or provides for the sub-delegation of powers delegated by this Act. Given that a pandemic order is able to leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a specified person or class of persons and is permitted to confer powers in connection with the pandemic order on any specified person or class of persons, the Act itself permits wide delegation, leaving little room for SARC to report unauthorised delegations; or
- is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities (note that s 7(2) of the Charter provides for circumstances in which human rights can be justifiably overridden).
Recommendations in report
A SARC report may contain such recommendations as the Committee considers appropriate, including a recommendation that a pandemic order – or an instrument that extends, varies or revokes an order – should be disallowed (either in whole or in part) or amended in the manner suggested in the report.
If a disallowance or amendment is recommended and SARC considers that fairness and justice requires that the operation of the pandemic order or any part of it (or the instrument or any part of it that extends, varies or revokes a pandemic order) should be suspended pending its consideration by Parliament, the Committee can make such a proposal in its report.
If SARC proposes a suspension, it must immediately send a copy of its report to the responsible Minister, the Governor in Council and the maker of the pandemic order or instrument. The operation of the pandemic order (or relevant part thereof) or the instrument (or part thereof) is suspended seven days after the report is sent to Governor in Council until the end of the period during which the pandemic order, instrument or part thereof could be disallowed. During a suspension, the pandemic order, instrument or part thereof is deemed not to have been made (or to have been made without that part, as the case may be). However, the Governor in Council, on the recommendation of the responsible Minister, can declare that the operation of the pandemic order or instrument etc is not suspended. Upon such declaration, the provision in the SARC report providing for the suspension ceases to have any force or effect. Thus the trump card remains with the Government.
A pandemic order can be disallowed by means of a resolution passed by both Houses of the Parliament (the usual process is one House of Parliament). However, this can only occur where SARC has either made a report to Parliament recommending disallowance, or has reported to Parliament that there was a failure to comply with s 165AQ, which requires a pandemic order to be laid before each House of Parliament within six sitting days after it came into force. The Explanatory Memorandum to the Bill notes that a resolution of disallowance initiated on the own motion of a Member of Parliament without meeting the precondition of the SARC having provided to the Houses of Parliament a relevant report will not have legal effect. As the President of the Victorian Bar has noted, if the majority of SARC members are Government MPs, it is highly unlikely that such a recommendation would be made. Thus we are left with a scenario in which a disallowance is highly unlikely to occur.
Pandemic Management Powers – Chief Health Officer
The Bill empowers the CHO to authorise officers to exercise pandemic management powers. This includes the power to take any action or give any direction, other than to detain a person, that the authorised officer believes is reasonably necessary to implement or give effect to a pandemic order or to protect public health. These are breathtakingly broad powers for a class of person that can include numerous low level public officials. While the emergency powers in s 200 of the Public Health and Wellbeing Act 2008 allow for an officer to make “any other direction that the authorised officer considers reasonably necessary to protect public health”, those are intended to be short-term emergency powers. They ought not be entrenched and unlimited in time. The Victorian Bar recommends that authorised officers’ powers to investigate and enforce pandemic orders be specifically enumerated, along the lines of the powers that currently exist in Part 9 of the Act.
Power to grant authorisations
If a pandemic declaration is in force and the CHO believes that it is reasonably necessary to grant an authorisation under this section in order to eliminate or reduce a serious risk to public health, the CHO is empowered to grant such authorisation. In particular, the CHO may, for the purpose of eliminating or reducing the serious risk to public health, authorise authorised officers, or classes of authorised officers, to exercise ‘public health risk powers’ and ‘pandemic management powers’. If specified in the authorisation, the CHO may also authorise a specified class or classes of authorised officers appointed by a specified Council(s) to exercise any of the public health risk powers and pandemic management powers.
The CHO must specify the period for which an authorisation remains in force. This period can be extended, but not beyond the period for which the pandemic declaration continues in force.
The ‘pandemic management order powers’ are:
- powers to take any action or give any direction, other than to detain a person, that the authorised officer believes is reasonably necessary to implement or give effect to a pandemic order; or
- to detain a person in a pandemic management area in accordance with a pandemic order requiring that person’s detention.
The ‘pandemic management general powers’ are powers:
- to take any action or give any direction, other than to detain a person, that the authorised officer believes is reasonably necessary to protect public health; or
- to detain a person in a pandemic management area for the period the authorised officer believes is reasonably necessary to eliminate or reduce a serious risk to public health. A number of examples are given, which include the same type of orders as the pandemic orders.
As noted by the Victorian Bar Council, ‘these are breathtakingly broad powers for a class of person that can include numerous low level public officials’.
As outlined above, the Bill empowers the Minister to make a pandemic order that a person be detained or to order the extension of a person’s detention and permits authorised officers to detain a person in a pandemic management area in accordance with a pandemic order that imposes such a requirement. Isolation or quarantine is not regarded as a detention.
The situation must be reviewed every 24 hours and the authorised officer must remain satisfied that continued detention is reasonably necessary to eliminate or reduce a risk to public health.
A person who is detained or whose detention has been extended can apply to the Secretary of the Department for a review by a Detention Review Officer in respect of any matter relating to the detention including: the reasons for the detention, the period and place of the detention; the conditions of the detention. The Detention Review Officer can decide not to vary the person’s detention or to refer the application to the CHO, accompanied by such non-binding recommendations as the Detention Review Officer considers appropriate (if any)
As the Bar Council observes, a detained person has:
no other avenue of merits review. Whilst the person may apply to the Supreme Court for a writ of habeas corpus or other judicial review, those are not effective review mechanisms where the person’s continued detention depends only upon the authorised officer being “satisfied that continued detention is reasonably necessary to eliminate or reduce a serious risk to public health”.
A person who refuses or fails to comply with a pandemic order or with a direction given to the person, or a requirement made of the person in the exercise of a pandemic management power, commits an offence unless they had a reasonable excuse for refusing or failing to comply. The penalty for a natural person is 120 penalty units ($21,700) and for a body corporate 600 penalty units ($108,600).
The penalties increase sharply where the person knows or ought to know that their failure to comply is likely to cause a ‘serious risk to the health of another individual’. This is defined to mean a material risk that substantial injury or prejudice to the health of another individual has occurred or may occur having regard to:
- the location, immediacy and seriousness of the threat to the health of another individual;
- the nature, scale and effects of the harm, illness or injury that may develop; and
- the availability and effectiveness of any precaution, safeguard, treatment or other measure to eliminate or reduce the risk to the health of another individual.
The Explanatory Memorandum gives as an example a person who, knowing they are infected with an infectious disease, attends their place of work in contravention of requirements to isolate and stay at home.
For a natural person who commits this aggravated offence the penalty is 500 penalty units ($90,500) or imprisonment for two years and for a body corporate either 2500 penalty units ($452,500) or a fine determined in accordance with s 165BP, which provides for a commercial benefits penalty order (which a court can only make on application by the prosecutor). If made, a commercial benefits penalty order requires the body corporate to pay, as a fine, an amount not exceeding three times the amount estimated by the court to be the gross commercial benefit that was obtained by the body corporate from committing the offence (the estimate may take into account benefits of any kind, whether monetary or otherwise, monetary savings or a reduction in any operating or capital expenditure of any kind achieved or achievable because of the commission of the offence and any other matter considered relevant).
In its submission to the Department of Health and Expert Reference Group on the Public Health and Wellbeing (Pandemic Management) Bill 2021, the Victorian Bar summed up the issue excellently when it stated that:
the rule of law, the sovereignty of Parliament and the checks and balances of our democratic Westminster system of government must be respected, even in times of emergency or crisis. While broad emergency powers that circumscribe ordinary checks and balances of our democracy may be justified to deal with an unforeseen crisis in the short term, they are not appropriate for the management of risks over extended periods.