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LIV Position Paper in response to the Public Health and Wellbeing (Pandemic Management) Bill 2021

LIV Position Paper in response to the Public Health and Wellbeing (Pandemic Management) Bill 2021

By Law Institute of Victoria

COVID-19 Legislation 

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The LIV has been working extensively with the relevant LIV legal policy sections, subject matter experts and has considered direct feedback from the broader membership to prepare this Position Paper on the Public Health and Wellbeing (Pandemic Management) Bill 2021 (‘the Bill’).

As the peak body representing nearly 20,000 legal professionals in Victoria and with one of its core purposes to protect and foster the rule of law, the LIV plays a key role in providing independent and considered analysis of the framework, provisions and potential impact of new legislation to inform Members of Parliament, policy makers and the public.

At no time is considered analysis more necessary than when Parliament is debating legislation that has the potential to affect the health, safety and rights of all Victorians in circumstances as urgent as curtailing the spread of a pandemic.

Over the last 20 months, the LIV has been generally supportive of introducing measures that are appropriately tailored and proportionate to the risks presented by the pandemic but has always maintained that that power should not be unfettered. There is an opportunity now, as restrictions ease and vaccination targets are reached, to reflect on the measures taken to contain the COVID-19 pandemic, and to ensure that only the least restrictive means possible to achieve public health objectives are used to contain future outbreaks of infectious diseases of pandemic proportions.

The Bill has been introduced at a time when the Victorian population is reaching its target vaccination rates, and we would question whether passing these powers so urgently in these circumstances is proportionate to the reduced risks currently posed by the pandemic. Rushed legislation is often compromised legislation. The LIV urges pause for law makers to further consider the potential impact of the proposed legislation, as it needs to be fit for the purpose of protecting our democracy, safeguarding members of the community, and be unable to be exploited by governments of unknown persuasions in the future.

We summarise our views and recommendations about the Bill below, but we would urge you to read the Position Paper, which is here.

WE SUPPORT THE OBJECTIVES OF THE BILL

The LIV supports the objectives of the Public Health and Wellbeing (Pandemic Management) Bill 2021 (‘the Bill’) but does not support the Bill in its current form. 

These objectives include:

  • supporting proactive and responsive decision-making for the purposes of preventing and managing the outbreak and spread of pandemics, and
  • promoting transparency and accountability in relation to decisions made and actions taken.

We welcome the development of a legal framework in the Bill for emergency powers that better embeds the protections of Victorian Charter of Human Rights Responsibilities Act 2006 (Vic) (“the Charter”).

However, the LIV is of the firm view that the Bill in its current form does not sufficiently protect the rights of Victorians. In a number of important ways, the Bill falls short of achieving its stated objectives, namely promoting transparency and accountability in relation to decisions made and actions taken.

The Bill places a significant amount of power in the hands of the Premier and the Minister to declare a pandemic and to make pandemic orders, respectively. The LIV calls for independent oversight and scrutiny to ensure that legal ‘protections’ are justifiable, transparent and do not unduly limit human rights.

OUR CONCERNS

The position paper sets out the LIV’s specific concerns in relation to the Bill, which can be summarised as follows:

  • A pandemic declaration can be in place for an indefinite period of time and very wide powers are conferred on the Premier, the Minister for Health and Authorised Officers without effective checks and scrutiny; 
  • Many powers appear to be an unnecessary infringement on democratic rights and freedoms, with little oversight offered by a truly independent body;
  • There appears to be no quantifiable timeframe for the maximum period of detention and the Bill is unclear as to where people are to be detained;
  • The process for review of detention does not provide for an independent external merits review;
  • Further concerns include the use of punitive and coercive approaches such as terms of imprisonment for aggravated offences, the abrogation of the privilege against self-incrimination, and the extended powers given to ‘authorised officers’; and
  • The protections relating to information gathered for public health purposes do not go far enough and the provisions relating to the use or disclosure of contact tracing information for other ‘permitted purposes’ should be carefully reconsidered.

OUR RECOMMENDATIONS

The LIV makes a number of recommendations for amendments to the Bill. A summary of these recommendations is provided in Appendix 1; the more significant of them being:

  • To strengthen the mechanism for effective oversight by empowering the Ombudsman (or an alternative specifically empowered independent officer of the Victorian Parliament) to act in real time to review, monitor, investigate and report on the impact of pandemic orders and to require the Minister for Health to act as soon as possible in response to matters raised by the Ombudsman (or alternative independent officer of the Victorian Parliament) in his or her review.
  • To resource and adequately empower the Scrutiny of Acts and Regulations Committee (‘SARC’) to ensure that pandemic orders can be appropriately scrutinised.
  • To amend section 165AK(4) so that it is more targeted and specific about what it seeks to achieve.  This section provides for orders to be made on the basis of protected attributes, which includes one’s political belief or activity which on its face seems to be disproportionate to the purposes of protecting public health.
  • To expressly provide that those empowered by the Bill are required to properly consider and act compatibly with human rights in carrying out functions and making decisions in accordance with section 38 of the Charter and that section 32 of the Charter applies to all aspects of the Bill. The LIV is of the view that the application of the Charter to the Bill should be unambiguous.
  • The Bill should provide for an accessible external merits review of all decisions relating to detention and that VCAT be given jurisdiction.
  • To increase the likelihood of public confidence and compliance – there should not be a ‘law enforcement’ emphasis behind the creation of lockdown laws.  Terms of imprisonment should not apply in respect of matters arising from the Bill and are excessive in the context of breach of pandemic laws.
  • That section 212A be removed as there is no justification to abrogate a person’s right not to comply with a requirement to provide information on the basis that the information might incriminate the person or make them liable to a penalty, particularly where the legislation allows the derivative use of compelled evidence.
  • The LIV notes that s.165CX of the Bill provides for a review of the new Part within two years of commencement.  The LIV recommends that such review be robust and independent and take place within 12 months of the commencement of operation of the new Part.

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