Amendments pitched for Victoria's prickly pandemic bill

The new Victorian Bar president criticised the changes for mainly addressing low priority issues

BY Jacqueline So 18 Nov 2021

Amendments have been proposed for Victoria’s proposed Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 after the legislation was met with significant backlash.

State Health Minister Martin Foley said in a media statement that the amended pandemic laws would “provide a clear framework for managing pandemics such as COVID-19 – while putting the safety of all Victorians first” and result in the country’s “the most accountable, transparent and public health-focused system.”

“We have engaged extensively with some of the most trusted leaders in public health, human rights and law and policy making – and the amendments reflect that consultation,” Foley said.

If the bill is implemented, the powers to declare pandemics and set out public health orders will pass from the chief health officer to the state’s premier and health minister. The laws have passed the lower house, News.com.au reported.

The amendments have been outlined as follows:

Crossbench amendments

the maximum penalty for aggravated offences (two-year prison term) should be reduced
orders are not applicable to people based on political belief and other non-health-related attributes
oversight requirements of pandemic orders must be tightened
the term “pandemic” must be properly defined in alignment with the World Health Organisation definition
a pandemic can be only declared if the disease is in Victoria
the Independent Pandemic Management Advisory Committee must include an independent panel of experts working alongside the chief health officer
an order can be extended only if the disease is still considered a pandemic
pandemic declarations can only be extended for a maximum of three months at a time, up to 12 months after the date of declaration, and then only a per-month basis. All extensions must be obtain approval by voting in both houses of parliament
when a pandemic declaration, extension or revocation is made, a report must be prepared outlining the reasons for doing so
public health advice must be made available within a day of a pandemic’s declaration
parliament must sit during a pandemic

The changes were presented after a massive protest against the bill was staged in Melbourne over the weekend. Leading lawyers in Victoria also contested the legislation in an open letter, arguing that under the bill, the government’s decision-making process could not be adequately examined before the decisions were implemented.

Newly elected Victorian Bar President Róisín Annesley QC also criticised the amendments, pointing out that they “largely address low priority issues and not the most fundamental problems with the bill.”

“The major issues include the lack of effective parliamentary control over the minister’s pandemic orders and the lack of provision for an independent review of authorised officers exercise of power,” she said.

The proposed changes did not protect the rule of law enough, Annesley added.

In a submission to the Department of Health and an Expert Reference Group, the bar pitched a number of amendments to the legislation, including the following:

the bill must be amended so that pandemic orders can be disallowed by either House of Parliament without the need for a Scrutiny of Acts and Regulations Committee (SARC) recommendation
individuals who are detained must be able to seek a merits review of their detention by an independent court. Internal review by a person who is employed by the Department of Health is not an acceptable independent safeguard

According to News.com.au, the opposition to the Andrews government has also presented 18 amendments, including a one-month limit to pandemic declaration extensions and a right to a VCAT appeal for those affected by pandemic orders. Pandemic declarations would also need to be supported with advice from the chief health officer in order to be tabled in parliament.