Controversial Victoria Pandemic Bill: Six Ways The Government Is Showing It Is Serious About The Scrutiny

Victoria’s Pandemic management bill, designed to replace the current state of emergency powers in a pandemic emergency, has quickly become one of the state’s most polarizing pieces of legislation.

In the midst of politics, public fear and death threats, there appears to be a growing consensus among lawyers that the bill would make positive changes to the way emergency powers have been exercised during the COVID pandemic. Still, it needs to be improved.

Public law academics, the Center for Public Integrity, the Human Rights Law Center, the Victoria Law Institute, Liberty Victoria, and a growing number of lawyers call for key amendments to the bill, as well as an independent review of the law one year after its enactment.

Government powers expanded rapidly during the COVID pandemic. Here are six amendments to the pandemic bill that we believe the government needs to pass to ensure these powers are used fairly and responsibly.

1) Give parliament stronger control

A fundamental democratic principle in Australia – called responsible government – is the ability of parliament to hold the executive (the prime minister and other ministers) to account. Parliament does this by asking questions, demanding the release of documents, and reporting on government actions to the public.

Already, the bill includes stronger mechanisms to ensure that parliament can hold the Prime Minister and Minister of Health accountable in the event of a pandemic emergency. For example, he calls for the Laws and Regulations Review Commission (otherwise known as SARC) to review the legality of public health instructions, including their compatibility with the Victorian Charter of Human Rights.

However, the bill risks using ACSIS to create a veneer of review only. As the Victorian bar argued that changes are needed to ensure that ACIS has the authority and time to effectively conduct these reviews.

Read more: What history can teach us about pandemic management

The bill should also follow emerging global best practices and create a specialized multi-stakeholder parliamentary committee that would immediately begin functioning when a pandemic declaration is implemented.

This already exists at the federal level with the Special Senate Committee on COVID-19, which reviews the actions of the Commonwealth government in response to the pandemic. New Zealand has also created a Epidemic Response Committee which examines this government’s responses to the pandemic.

This type of committee would have broader executive oversight powers and, therefore, would work in conjunction with the more detailed reviews carried out by SARC.

2) Strengthen the supervisory committee of experts

The pandemic bill creates an expert committee (comprising experts in public health, law and indigenous rights) to advise the Minister of Health. However, there is no guarantee that this committee would be independent from the minister or that it would have the resources and the powers necessary to do its work.

A merit-based appointment process should be put in place to ensure the independence and quality of the committee. It should include public lawyers and be mandated to advise the government on whether certain measures would violate basic human rights.

Finally, the committee is accountable to Parliament rather than to the minister.

3) Create an emergency review mechanism

A serious flaw in the bill is that it does not provide for an expedited and independent merit review for those who could be detained or fined for violating public health orders. This kind of mechanism would allow people to challenge a fine or detention if they believe it is illegal.

Given the importance of these powers, the inclusion of a free, expedited and independent merit review process is essential – an emergency review for emergency powers.

This role could be played by the ombudsman or the Victoria Civil and Administrative Court (VCAT), and it must be adequately resourced.

4) Protect Protest Safely

The bill does not contain any protection for the right to protest in safety. The right to protest peacefully is fundamental in a liberal democracy and is protected by the Australian constitution, the Victorian Charter of Human Rights and international law. He is essential during a pandemic.

The bill is expected to allow for a “safe” protest that follows appropriate health guidelines by recognizing it as an “essential” activity, similar to food shopping and exercise.

An example is the authorization of social distancing protests or sit-ins (as happened in Israel and elsewhere during the pandemic), or a car demonstration that complies with social distancing rules.

A socially distanced protest against the Israeli government last May. Ariel Schalit / AP

5) Require justification for measures targeting specific groups

The bill currently allows a pandemic ordinance to apply differently to people with various attributes protected by Victorian Equal Opportunities Act, such as age and pre-existing medical conditions. The government noted that this could also include how a prescription applies to vaccinated people versus unvaccinated people.

Such differentiation can be supported if it relates to a person’s health profile. However, the attributes of equal opportunities law also include race and political and religious beliefs (among many others). This means that the bill has a broader scope than just a person’s health profile.

This aspect of the bill therefore led to important community reaction and concern.

The preferable way to deal with this problem is to amend the bill to ensure that the Minister of Health must justify any differentiation in restrictions or policies in the event of a pandemic for health reasons.

6) Require a mandatory review every two years

Given the lack of time for serious consultation on the bill – and the serious concerns of experts as to the relevance of its guarantees – we recommend that it be endowed with a sunset clause. This means that the law would automatically end after a defined period of time, for example two years.

An alternative would be a mandatory independent review (eg by a retired judge), to be carried out within two years of enactment of the law.

These suggestions would allow the government to respond to the current COVID pandemic within an improved legislative framework, but would also require it to conduct further consultation and review before enacting more permanent law.

The conversation

Gabrielle Appleby, Professor, UNSW Law School, UNSW; Catherine williams, research director at the Center for Public Integrity. Associate researcher at the University of La Trobe, La Trobe University; Maria o’sullivan, Associate Professor, Faculty of Law, and Assistant Director, Castan Center for Human Rights Law, Monash University, and Guillaume Partlett, Associate Professor, University of Melbourne

This article is republished from The conversation under a Creative Commons license. Read it original article.

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