national economy
(Image: AAP/James Ross)

Last Wednesday, the Victorian government introduced a fast-tracked bill into Parliament that would create a legal framework for dealing with future pandemics. So far, much of the criticism of the state’s Pandemic Management Bill has been unconstructive and sensationalised. Many of the solutions proposed are unworkable, including an amendment limiting the government’s ability to declare a pandemic for no more than 30 days unless it has a special majority vote in both houses of Parliament. 

Victorian government officials have seized on this, labelling any criticism as “hysterical” or “conspiratorial nonsense”. More recently, a key crossbencher who worked with the government on the bill has described criticism as “fear-mongering.”

There is no doubt that a new law is needed to cope with the new challenges of pandemic management. This includes a vast array of new challenges — from the handling of QR code check-in material to the precise position of unelected chief health officers in decision-making. And the law does contain important solutions and safeguards to these emerging issues.  

But a close look at the bill shows that it has been hastily drafted and needs improvement. This is a problem because the Pandemic Management Bill is a very significant piece of legislation that has serious constitutional implications for the way that Victoria is governed during pandemics.   

There are good reasons for the Victorian government to amend the bill and insert a provision stating that this law will expire in one year. This will allow more time to consult and draft Victoria’s (and Australia’s) first permanent, fit-for-purpose pandemic law next year. 

Where are the areas that need improvement? A few areas spring to mind — but there are likely others. First, the law gives the Health Secretary extensive decree powers when a pandemic declaration is in effect. Some of these are necessary. But others potentially go too far, including authority for the Health Minister to make pandemic orders that differentiate on the basis of “attributes” included in the Equal Opportunity Act (165AK(4)). This allows a pandemic order to discriminate on the basis of “race”, “religion”, and “political belief or activity.” Is the ability to discriminate on these bases really necessary in a pandemic?  

Second, the law gives the Health Department and chief health officer vast police powers. In particular, it gives the head of the Health Department vast power to classify any individual they think “appropriate” to be an “authorised officer”. (165CN(a)). The chief health officer can then give classes of these authorised officers the power to detain individuals or classes of persons. (165AW).

There are procedural safeguards on these powers but it is unclear who will be enforcing them. In fact, challenges to detention are referred to a “Detention Review Officer” (165BI), who then refers the challenge to the chief health officer (165BK). Yet the law does not state who appoints these Detention Review Officers or their qualifications. And why is the chief health officer involved in this review process? Should it not be someone with legal training?  

These broad forms of discretion carry real dangers, particularly for minority and disadvantaged groups. The period of the last 20 months shows that disadvantaged minorities were the most heavily policed during lockdowns. The most dramatic example was last year’s decision to seal off the Flemington and North Melbourne towers, which, according to the Victorian ombudsman, “appeared to be contrary to the law” and left “many people with limited access to food and medicine”.  

Third, the bill does not give Parliament — the central institution in our democratic system — a serious role in overseeing the exercise of these extraordinary powers. If the Scrutiny of Acts and Regulation Committee finds that a pandemic order violates human rights in the Victorian Charter of Human Rights or is unlawful, it can only recommend the disallowance of this order by giving “notice” to both Houses of Parliament (165AU). Moreover, the law includes a disturbing number of “no invalidity” clauses that render some safeguards unenforceable. For instance, the Premier’s failure to provide a report to Parliament on a Pandemic Declaration “does not affect the validity of the declaration.” (165AG(6)).

Fourth, no provision is made for safe protests, as the Human Rights Law Centre called for in a recent report. On the contrary, specific authorised officers have blanket “pandemic management general powers”, which include the power to forbid all “gatherings” (165BA). Why are there no carve-outs are created for the safe expression of political views?

Finally, the only oversight body is an appointed committee, which is wholly appointed by the minister who also sets the “period” and “terms and conditions” of appointment (165CE(2)(b)) and has “non-binding” power (165CF(1)(b)). Why so much non-binding serious scrutiny?   

Proposals are already emerging that seek to improve the bill. Catherine Williams of the Institute for Public Integrity has argued that the Scrutiny of Acts and Regulation Committee should have more power to oversee pandemic management. She has also called for the creation of a truly independent statutory agency — perhaps the Victorian ombudsman — to oversee the exercise of executive emergency powers.

Daniel Webb of the Human Rights Law Centre has suggested changing language that provides no “outer limit” on the ability of the premier to extend pandemic declarations. I have suggested setting up a cross-party parliamentary committee with special powers to oversee the management of the pandemic. These powers would not necessarily involve disallowance but would include special powers of investigation and oversight. More will undoubtedly emerge in the coming weeks before it goes to the upper house. 

The government is now facing a mid-December deadline to renew its pandemic powers, so it will now be difficult to slow down the process. The right solution at this point is to make sensible amendments and insert a “sunset provision” that makes this law temporary and requires a permanent pandemic law to be written in 12 months’ time. This new permanent law will be able to draw on the constructive discussion that is occurring now, as well as a more extensive consultation process.

This deliberation will improve the bill and ensure it finds a better balance between public safety and our democratic commitments in Australia’s first fit-for-purpose pandemic law. It will also increase trust in the government, perhaps the most important resource in any effective pandemic response.