Pandemic Legislation myth busting
Don’t forget the context
We are in a deadly global pandemic. If our governments and parliament had done nothing in 2020 and 2021, then our health system would have been overwhelmed and thousands of Victorians would have died gasping for air, many of them our doctors and nurses, many of them our friends or family.
No one likes lockdowns, no one likes restrictions on our freedoms. I don’t. Lockdowns affect people’s livelihoods, our wider economy and our mental health. We feel lonely and isolated. They weigh heavily. We all want it to go back to the way it used to be before the pandemic. But we cannot forget for a second, that state of emergency and pandemic rules ONLY exist to save our lives and protect public health.
The alternative of blindly ending restrictions does not lead us back to the way it used to be, and where we want to be in the future. Blindly ending these rules leads to Victorians dying and our health system being overwhelmed.
Why we need Pandemic Legislation
All states across Australia have declared a state of emergency (or equivalent), giving governments and health officials broad powers to limit individual rights and freedoms to protect public health. These laws ONLY exist to protect life. They exist for situations where carrying on as normal puts us all at risk.
If we didn’t have laws of this type, then there would be no-way to curtail the spread of deadly disease and many more Victorians would die.
Victoria’s state of emergency (SOE) laws, under which we have been operating during Covid-19, were designed for a short-term health crisis. They are not fit for purpose when it comes to managing an enduring pandemic. Our SOE framework lacks transparency and vest power in health officials to make decisions outside their remit, that affect whole of state matters such as the economy. That is why I have called for pandemic specific legislation.
What is the alternative? If we had no legislation of this type, there is no way to control the spread of disease in our community and many more Victorians would die.
We need a legislative framework for the pandemic, and it is necessary that the pandemic framework improves on the laws currently in place that govern a SOE.
State of Emergency vs. Pandemic Legislation
The pandemic legislation makes welcome improvements to the current SOE legislative framework. As compared to a state of emergency, the pandemic legislation provides for greater separation of power in the decision making process, makes important transparency improvements including full publication of CHO advice, improves parliamentary oversight via the Scrutiny of Acts and Regulations Committee, provides for an independent advisory committee, and allows Parliament to disallow health orders in certain circumstances.
It is a marked improvement on our current framework.
Some limitations on human rights are unavoidable
My touchstone is this quote from Kristen Hilton in 2020, Victoria’s then Human Rights and Equal Opportunity Commissioner:
“During a state of emergency, some limitations on human rights may be unavoidable – and these are not decisions we can take lightly. Any restriction on human rights must be necessary, justifiable, proportionate and time-bound.”
Like a state of emergency, pandemic legislation will necessarily limit some human rights in order for it to function. If it does not limit rights, it cannot work to curtail the spread of disease.
No one, including me, like’s their rights being limited – but if the purpose of those limitation is to protect and save life, then it is necessary.
Our choice as Parliamentarians, is not whether we limit human rights or not. It is whether we limit human rights in a responsible way, to save lives… or not limit rights and let disease run wild – there is no middle ground.
That is why I have ensured to the full extent of my ability that the pandemic legislation before the Parliament is necessary justifiable, proportionate and time bound.
Negotiations on pandemic legislation
I have been in negotiations with the state government for some time, on the shape and form of this Bill. My clear focus has been transparency and accountability measures, which this Bill delivers. There is no doubt that this is the fairest and most transparent legislation of its type not only in Australia, but the whole Commonwealth, with whom we share the Westminster system.
Improved transparency and accountability under pandemic legislation
The strength of the proposed Bill is that it delineates and separates decision making power. Here’s how:
• Only the Premier can declare a pandemic and only in response to the Chief Health Officer’s Advice. The Premier has no other responsibility under the proposed legislation.
• All of the Chief Health Officer (CHO) advice must be published as an exercise in transparency.
• Only the Health Minister can make orders under the legislation.
• If the Health Minister’s orders differ from the CHO’s advice, the Minister must publish reasons why.
• The Bill creates an independent advisory committee of experts to provide frank and public oversight.
• The Bill empowers the Scrutiny of Acts and Regulations Committee (SARC), the Parliamentary committee with the statutory purpose of ensuring Victoria’s laws are consistent with our human rights charter, to report on health orders and recommend suspension and disallowance of those orders.
• The Bill provides a mechanism for both Houses of Parliament to disallow health orders.
These transparency rules and checks and balances on decision makers are undoubtedly the best in the country and the Commonwealth.
Comparing this pandemic legislation to other jurisdictions
The vocal criticism of this pandemic legislation is hard to comprehend, when you compare it to the frameworks that exist elsewhere around Australia and the world. In NSW the current Covid-19 laws vest all of the decision-making power in their Health Minister alone, without any of the transparency or oversight mechanisms detailed above.
The Victorian proposal separates power to a far greater extent and is significantly more transparent with greater oversight.
Let’s compare a few key elements of what is being proposed in Victoria against what is currently in place in New South Wales.
| Vic | NSW | |
| Orders are signed by elected officials | ✔️ | ✔️ |
| Powers are separated between elected officials | ✔️ | ❌ |
| Parliament may disallow health orders in certain circumstances | ✔️ | ❌ |
| Full health advice is published | ✔️ | ❌ |
| Human rights assessments are released | ✔️ | ❌ |
| Independent Pandemic Advisory Committee | ✔️ | ❌ |
| Parliamentary Committee oversight | ✔️ | ❌ |
Specific concerns raised in relation to the pandemic legislation:
Penalty provisions
Laws of this nature must include penalty provisions, otherwise there is no mechanism to enforce them.
I am aware of public criticism of the two year jail term/$90,000 penalty contained in the legislation as too harsh.
The way legislation is drafted in Victoria, is that it will specify a maximum penalty. It must be remembered that the maximum penalty is reserved only for the very worst or most serious examples of an offence.
The penalties mentioned above only apply to a new aggravated offence for egregious and dangerous breaches of pandemic requirements – such as breaches that have or could have catastrophic consequences, and are intentional.
If you consider that the current maximum penalty within the Victorian Crimes Act for the offence of ‘Conduct Endangering Life’ is 10 years jail, and relates to conduct endangering only one person, my view is that the two year maximum penalty under the pandemic Bill is fair and modest in comparison, given the egregious type of offending at which it is targeted.
Classes of persons
I am aware of public criticism in relation to differentiation between classes of persons as specified in the pandemic legislation.
With respect to Covid-19, the Minister for Health will take into account characteristics, such as where they work and their vaccination status to give effect to the national plan.
This is how the Government will give effect to the National Cabinet decision to require aged care workers to be vaccinated in order to attend work. This phrasing is necessary if the government for example, wants to different requirements for front line health workers as compared to the whole Victorian population.
Self-incrimination
The Bill provides that a person cannot rely on the privilege against self-incrimination when required to provide information for the purposes of a pandemic – essentially in relation to contact tracing. This is to ensure that a person cannot decline to provide time-critical information, that could prevent an outbreak.
To balance the limitation on this right, the Bill provides for a direct use immunity, meaning that incriminating information cannot be used against the person in a criminal proceeding. This underscores that the purpose of obtaining the information is to ensure the protection of public health. It does not limit the right to silence as it applies to the broader criminal law.
Response to open Letter from QC’s on 29 October 2021
I have read this public letter and find it disappointingly naive.
The letter details where human rights may be impinged by the pandemic legislation, without considering any context as to why that interference may be necessary to save human life; interference predicated on that fact.
The authors have not proffered cogent solutions as to how the Victorian Government might curtail the spread of deadly pandemic disease without impinging upon some human rights, and as such the opinions expressed are of little or no public utility in my assessment.
I feel embarrassed for the authors, that they felt it necessary to use emotive and inflammatory language such as ‘rule Victoria by decree’ rather than relying on cogent legal opinion. Personally, I expect more from senior counsel.
Read more analysis from key organisations who were consulted on the Bill
Read Liberty Victoria’s statement.
Read The Human Rights Law Centre’s explainer.
Read The Centre for Public Integrity’s media release.