During the response to the pandemic, the Victorian government introduced the Public Health and Wellbeing (Pandemic Management) Bill 2021 (Vic). This Bill created a great deal of criticism and controversy. Objectors to this Bill took part in street protests in front of the Victorian Parliament (‘Thousands protest in Melbourne CBD as Victoria records 1,221 new local COVID-19 cases, four deaths’ ABC News (Online) 13 November 2021). The Victorian Bar Association (ie the collective association for Barristers) said that the Bill was ‘subject to a rushed and/or severely curtailed consultation process’ (https://www.vicbar.com.au/news-events/public-health-and-wellbeing-pandemic-management-bill-2021). The Bar had a number of objections to the Bill, summarised as:
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. This represents the biggest challenge to the rule of law that this State has faced in decades.
The Bar Association made a submission to the Department of Health Expert Reference Group – a summary of which can be seen here – https://www.vicbar.com.au/news-events/summary-victorian-bar%E2%80%99s-submission-department-health-and-expert-reference-group-public.
In light of the criticism a number of amendments were made to the Bill. This article will look at the Act as passed by the parliament. Readers can look to the material cited above (and other news stories published at the time) if they want to see what was originally presented to Parliament and identify differences between the Bill when introduced, and the Act when finally passed.
The Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (Vic)
Importantly this Act introduced a new Part 8A headed ‘Protection of life and public health during pandemics’. There had been objections that Victoria’s response to the COVID pandemic was uninformed, politically motivated and/or caused breaches of human rights (see for example, Victorian Ombudsman ‘Tower lockdown breached human rights, Ombudsman finds’ 17 December 2020). With Part 8A the Parliament tries to ensure (s 165(b)):
… 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;
This appears to be a recognition that there are issues involved beyond health issues. That the government is to take into account other ‘relevant information’ may be something that some see as a good idea, and others would object to. If the ‘relevant information’ is how a decision will impact upon a governments political standing, many might think that is irrelevant. If, on the other hand, other ‘relevant information’ is information about how a public health response will impact upon particular groups, the economy or liberties that may be a good thing.
In the amendments the Parliament (s 165A(2)):
(a) recognises the importance of protecting human rights in managing the serious risk to life, public health and wellbeing presented by the outbreak or spread of pandemics and diseases of pandemic potential; and
(b) intends that nothing in this Part displaces the operation of the Charter of Human Rights and Responsibilities; and
(c) intends that the Charter of Human Rights and Responsibilities therefore applies to the following—
(i) the interpretation of this Part and subordinate instruments made under this Part;
(ii) acts done, and decisions made, under this Part by public authorities.
That sounds absolute but it has to be remembered that the rights guaranteed to Victorians are not absolute. The rights listed in the Charter of Human Rights and Responsibilities may be subject to (Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7):
… such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
What follows is that even with a commitment to human rights expressed in s 165(2) it is not a guarantee that the rights enjoyed by Victorians will look the same during a pandemic as they would be in the absence of a pandemic.
Critically the Act provides that the Premier may make a pandemic declaration if he or she is satisfied (s 165AB):
… on reasonable grounds that there is a serious risk to public health arising from—
(a) a pandemic disease; or
(b) a disease of pandemic potential.
This is consistent with the provisions of the Emergency Management Act 1986 (Vic) which provides (in s 23) that the Premier may declare a state of disaster. It may be thought that brining the public health pandemic response in line with the response to other events (floods, fires etc) is an example of an ‘all hazards’ approach.
A pandemic declaration is in force for not more than four weeks, but it may be extended (s 165AC(1)(c)). The declaration may be extended by the Premier. Each extension must be for no longer than three months (s ; but given there is no limit on the number of times the declaration may be extended there is in effect no statutory end time for a pandemic emergency (s 165AE(5)). That may be a good thing because a pandemic disease will not follow the law so it might be wrong to impose a limit where a pandemic is ongoing. On the other hand, allowing the Premier and not, say, the Parliament to extend the declaration indefinitely may be a dangerous grant of power.
There are provisions for review by Parliament. When making or extending a declaration the Premier must report to Parliament, whether the Parliament is sitting or not (ss 165AG and 165AH).
Once a declaration is made the Minister is empowered to act and to make orders ‘that the Minister believes is reasonably necessary to protect public health’ (s 165AI). Again, this is consistent with the Emergency Management Act where the relevant Minister is empowered (s 24) by the Premier’s declaration. This is also consistent with international best practice that the person who makes the relevant declaration is not the person empowered to act (Michael Eburn, Australia’s International Disaster Response – Laws, Rules and Principles (2010, VDM-Verlag, Saarbrucken, Germany)). It is some limitation on a Premier’s willingness to make a declaration when they know that it will be one of their subordinates who is empowered to take the lead in the relevant response.
This is however a significant change from the earlier version of the Act where it was the Chief Health Officer who was empowered to make public health orders. One might think that it is better to leave these decisions to the Chief Health Officer on the basis these are health only issues. On the other hand, some would prefer to see the matter referred to the Minister on the basis that the Minister is accountable to the Parliament and the electorate in a way a public servant is not; and the Minister can take the ‘bigger picture’ into account. The Minister, as an MP, is elected as a representative of his or her electorate and the electorate generally and can be expected to take into account relevant matters that are outside the focus of a health officer.
Any pandemic order made by the Minister must be considered by the Pandemic Declaration Accountability and Oversight Committee (s 1656AS). That Committee can recommend that the order be withdrawn or suspended. An order can be disallowed by a joint sitting of both houses of the Victorian Parliament (s 165AU). Critically the Parliament can revoke a pandemic order made by the Minister; but not the Premier’s declaration that a pandemic exists.
There are many other provisions dealing with delegations, the power of authorised officers, the power to detain a person and the provision of a review process where a person has been detained. The extent of the orders and how they may be limited (eg by geography or to people on the basis of relevant characteristics eg age, vaccination status etc). Given the wide range of discretion it is possible that the Act may be abused to target groups; but equally it may give the Minister and the public health advisers the flexibility required to address a public health risk with targeted public health orders. Whether one sees this Act as a draconian overreach or a necessary modernisation and application of lessons learned from COVID-19 no doubt depends on how one sees their government and one’s own views on the COVID pandemic.
This review cannot deal with all the details in the amendments which are significant. Key points to take from here is that there have been changes to the public health law that do empower the government to impose quite severe limitations on movement and other liberties. That is not new but now the key decision maker is the Minister, not the Chief Health Officer. But the amended Act comes more into line with the Emergency Management Act, creating a more coherent ‘all hazards’ emergency response scheme for Australia.
How the Act will be used, and its outcomes – good or bad – remain to be seen.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Associationand NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.