Don’t trust hypocrites to amend Dan Andrews’ pandemic bill

The Victorian government’s new Pandemic Management Bill must be amended to limit the powers it bestows on the government to rule by decree. As Victorian Bar Association President Christopher Blanden wrote in a 27 October Open Letter: “It is one thing to allow temporary rule by decree to deal with an unforeseen and extraordinary emergency in circumstances of extreme urgency. It is something else altogether to entrench rule by decree as a long-term norm.” The Bill must be strengthened to include Parliamentary oversight and checks and balances. Just don’t trust the Liberal Party to do it, however. (And never forget the Liberals’ role in gutting Victoria’s public healthcare system, which made the state more vulnerable to pandemics.)

For 20 years the Liberal Party has rammed through even more draconian national security laws at the federal level, at last count 92 laws since 9/11, which the Citizens Party has fought against. Liberal governments have outdone Labor governments in shredding the principles underpinning civil liberties, evidenced in their treatment of refugees (46 of whom have been in indefinite “lockdown” in a Melbourne hotel for 100 months), immigrant offenders (summarily deported to their countries of origin even if they haven’t lived there since they were babies), whistleblowers who reveal official crimes (Witnesses K and J, David McBride), and journalists (raids on Anika Smethurst and ABC). Many of the loudest voices now condemning Dan Andrews, including Sky’s Peta Credlin and former Liberal MP, now United Australia Party leader Craig Kelly, happily endorsed and voted for laws that reverse the onus of proof, allow preventative detention of children, can “disappear” people for weeks, and jail journalists for reporting on secret intelligence operations. The Liberals, and their cheerleaders in the Murdoch media machine, are not genuine in opposing draconian laws; instead, they are seeking to capitalise on their “Dictator Dan” mantra to boost their prospects in upcoming federal and state elections.

Ironically, several important measures in the Andrews government’s Public Health and Wellbeing (Pandemic Management) Bill were demanded by these same Liberals and Murdoch hacks. Most notably, the Bill will curtail the Chief Health Officer’s existing powers, and give the Premier authority to declare a pandemic and the Health Minister the role of making subsequent public-health orders. This satisfies a demand repeated in the Murdoch media for the entire duration of the pandemic. On Sky News on 20 May 2020, Peta Credlin attacked the power of Chief Health Officers, saying there is “too much hiding behind unelected and unaccountable officials”; on 14 July 2021, Murdoch commentator Rita Panahi wrote in Melbourne’s Herald Sun: “Australia is suffering from a failure of leadership, at both state and federal level, with our elected representatives relinquishing their power to unelected, unaccountable health bureaucrats.”

Law Institute of Victoria president Tania Wolff called the Bill a major improvement on the existing framework. “The good thing is we have moved away from all the power being vested in an unelected individual to a minister who is ultimately answerable to the electorate and has accountability to the Parliament—that’s the good fundamental improvement,” Ms Wolff said. The Bill also stops the police from accessing QR code data, and requires the government to table its public health advice in the Parliament.

Overreach

The biggest problem in the Pandemic Management Bill is how it seeks to address the discrepancy between Victoria and the other states in maintaining a state of emergency to allow the government to make public health orders. Presently, Victoria is the only state that has hard time limits on declarations of states of emergency, which the government must extend every four weeks for no more than six months, or, in respect of the COVID-19 pandemic, 21 months. By contrast:

• The Commonwealth can declare a biosecurity emergency across Australia for three months, which the Health Minister can extend indefinitely;
• NSW doesn’t need a State of Emergency for the Health Minister to give public health directions, which expire after 90 days but can be renewed indefinitely;
• Queensland can declare a public health emergency for seven days that can be extended for 90 days and renewed indefinitely;
• SA can declare a public health emergency for 14 days that it can extend for any length of time as approved by the Governor;
• WA can declare a public health emergency for seven days, which it can extend for 14 days with no limit on the number of extensions;
• In Tasmania a public health emergency can be extended indefinitely while a threat to public health continues.

The Pandemic Management Bill allows the Victorian Premier to make a pandemic declaration, which must not exceed four weeks, but may be extended for periods of three months with no limits on the number of extensions. Under such a pandemic declaration, the Health Minister can make now-familiar public health orders, including stay-at-home orders, quarantining, medical testing etc.

The principal area of concern is the extent and potential duration of these powers and the fact that they are extensive, and effectively without any effective judicial or parliamentary oversight. This includes the much-scrutinised provision that the orders can vary in their application based on the “attribute” of persons or classes of persons within the meaning of the Equal Opportunity Act 2010, which attributes can include “political belief or activity”. Critics say this section could be used to target political opponents of pandemic measures, but the government says it is actually to guard against discrimination. These powers are subject to only limited disallowance by Parliament.

Government powers in a pandemic, like a war or other emergency, are always extraordinary; the issue is to have appropriate checks and balances to ensure the proper exercise of such powers. The solution is to amend the Pandemic Management Bill to do three things:

1. Give the Minister specific powers to do specific things—border closures, lockdowns, quarantines, etc.—but not a blank cheque;
2. Put a strict time limit on the Minister’s power to do unspecified, unforeseeable things, by requiring Parliamentary approval within a timeframe of something like 30 days; and, most importantly,
3. Give Parliament the unconditional power to disallow any specific measure.

Concerned Victorians should contact the crossbenchers with the deciding votes, Greens MLC Samantha Ratnam, Reason Party MLC Fiona Patten, and Animal Justice Party MLC Andy Meddick, to insist they amend the Bill.