Leading Silks’ Open letter opposing Andrews pandemic legislation

We are deeply concerned about the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 (Bill). The overriding concern is that the Bill, if passed, may allow the Victorian government effectively to rule the State of Victoria by decree for the foreseeable future, without proper Parliamentary oversight or the usual checks and balances on executive power.

A key feature of the Bill is that the Minister of Health will have the power to make “pandemic orders”(s 165AI). This effectively confers an unlimited and practically unreviewable power on the Minister to rule Victoria by decree on a long-term basis:

• The Minister can make a pandemic order while a “pandemic declaration” made by the Premier is in force. Given the low threshold for the making of this declaration (s 165AB) and the fact that COVID-19 is unlikely to be going away any time soon, we can expect a pandemic declaration to be in force for the foreseeable future. Thus, the Minister’s power to make
pandemic orders will remain in place for the foreseeable future.
• Once a pandemic declaration is in place, the only other requirement for the Minister to make a pandemic order is that he or she must believe that the order is “reasonably necessary to protect public health”. Not only is this threshold low, but it does not need to be satisfied objectively — it is enough if the Minister subjectively believes that the order is “reasonably necessary”.  This will make it practically impossible to challenge the merits of the order in a court. A person wishing to challenge the order on the merits will need to establish legal unreasonableness. This is a very high bar that might catch only the most extreme forms of overreach.
• The content of a pandemic order is unlimited — the Minister can make “any order” (s 165AI(1)). The Minister is effectively given plenary legislative power. To avoid any argument that the words “any order” should be read down, the Bill then lists an extremely broad list of examples of matters that the orders can contain (this list is expressly stated not to limit the generality of the power to make “any order”). These include, among many others, orders requiring detention of persons, restricting movement, regulating public or private gatherings, requiring provision of information and requiring testing and medical examination of persons (s 165AI(2)).
• Pandemic orders are expressly allowed to “differentiate between or vary in its application to persons or classes of person identified by reference to an attribute within the meaning of the Equal Opportunity Act 2010” (s 165AK(4)). The latter includes a wide range of protected attributes including “political belief or activity” (Equal Opportunity Act 2010 s 6). Thus, the Bill expressly contemplates that the Minister can make a pandemic order targeting persons on the basis of their political beliefs or activities if the Minister forms the view that this is “reasonably necessary to protect public health”. It is not difficult to imagine how some future Health Minister might form this view in respect of political beliefs or activities that involve questioning or opposing the government public health measures.
• Pandemic orders can be disallowed by Parliament only upon recommendation  by the Scrutiny of Acts and Regulations Committee (SARC) or if the government has failed to table the order (s 165AU). But SARC cannot inquire into the merits of the order — it can only recommend disallowance on narrow grounds, effectively limited to the order being beyond power or being incompatible with human rights under the Charter of Human Rights and Responsibilities Act 2006 (s 165AS). In any event, the governing party may command a majority in the SARC, as is the case at the moment. Thus, in reality, Parliament’s ability to control the Minister’s power through disallowance is going to be very limited or non-existent.
• The Bill’s Independent Pandemic Management Advisory Committee is not a significant check on the Minister’s power. The Committee will be wholly appointed by the Minister him or herself (s 165CE) and will have no power to rescind or amend the Minister’s orders.

The Bill also confers extremely broad and unchecked powers on authorised officers:

• Without seeking to in any way denigrate their important work, it is to be remembered that authorised officers are numerous and unelected, and include relatively low-level officials, including officers appointed by local councils and other public servants (Public Health and Wellbeing Act 2008 s 31). As at late 2020, there were as many as 382 authorised officers in Victoria: Loielo v Giles [2020] VSC 722; (2020) 63 VR 1 at [52]-[53].
• Yet the Bill confers on these authorised officers extraordinary powers, again effectively for the foreseeable future. If authorised by the CHO, they will be able to, among other things, “take any action or give any direction, other than to detain a person, that the authorised officer believes is reasonably necessary to protect public health” (s 165BA(1)(a)). These directions can target multiple people in certain circumstances, including if the direction “relates to a particular activity at a particular location and is given to persons undertaking that activity (including, but not limited to, a direction to restrict movement, require movement or limit entry)” (s 165BA(4)(b)). Thus, an individual authorised officer will single-handedly have the power to shut down a political protest if the officer subjectively
believes that this is “reasonably necessary to protect public health”.
• These directions are, again, effectively unreviewable.

The Bill also contains many other troubling elements, including abrogating privilege against self-incrimination (s 212A) and entrenching the system where administrative detention is reviewable not in a court but by Detention Review Officers appointed by the Department (ss 165BI and 165BJ).

It is, in our view, no answer to these criticisms to say that the Bill contains more safeguards than presently exist for the emergency powers under the Public Health and Wellbeing Act 2008. The emergency powers are just that — extraordinary powers that are available to be exercised for only a very short period (originally 6 months, though this period was extended). 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. In our view, this is antithetical to basic democratic principles and should not be allowed to happen.

We are now more than 18 months into the pandemic. It has become clear what sort of powers might be required to deal with it. There is no need to give the government of the day a blank cheque to rule by decree. Instead, the Bill should give the Minister specific powers to do specific things (such as border closures, lockdowns, mask and vaccination mandates, etc), subject to specific and prescriptive requirements listed in the Bill, and subject to unconditional Parliamentary disallowance (i.e. without requiring any SARC recommendation). If these powers prove inadequate, the Minister can come back to Parliament and seek additional powers. This is how a Parliamentary democracy is meant to work.

If there is a need for a general power to make orders in the case of some new unforeseen development requiring urgent action before Parliament has a chance to consider the proposed measures, such power should be restricted to orders that lapse after a very brief period unless confirmed by both Houses of Parliament. At the very least, the power to make general pandemic orders must be subject to unconditional disallowance by Parliament (i.e. without requiring any SARC recommendation).

We call on the Parliament to amend the Bill or vote against it.

Ross H Gillies QC
Jennifer J Batrouney AM QC
James W S Peters AM QC
Peter W Collinson QC
Philip D Crutchfield QC
David J Batt QC
Stuart Wood AM QC
Gregory P Harris QC
Gerard D Dalton QC
Paul J Hayes QC
Stewart J Maiden QC
Richard P P Dalton QC
Eugene Wheelahan QC
Dimitri Ternovski

36 thoughts on “Leading Silks’ Open letter opposing Andrews pandemic legislation”

  1. Good but way too late. Where have these people been for the last 20 months? Andrews crushed Victorians liberty and rights and they’ve all been silent. This legislation has been around for a month or more and they’ve said nothing. They’re worse than useless, grandstanding after the event, useless.


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  2. The only difference in effect is to remove the government lackey rubber stamping this shit now.

    We already have nearly every negative they have outlined bar a few “tweaks”.

    The state of emergency powers has no place outside wartime, and should be limited even then.


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  3. Anyone here know the seniority of these Silks beyond the obvious?

    Jim Peters and Jenny Batrouney are former Chairs of the Australian Bar Council.
    Eugene Wheelahan’s not so “senior” in that purely relative sense.
    Don’t know about the rest.


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  4. Good but way too late. Where have these people been for the last 20 months? Andrews crushed Victorians liberty and rights and they’ve all been silent. This legislation has been around for a month or more and they’ve said nothing. They’re worse than useless, grandstanding after the event, useless.

    sfw, so far as I know, until Mon this week, this legislation was not public when it was accidentally leaked, and from the statements made by the Bar Association, the last ‘consultation’ they had was in June. All that we have known is that the government was preparing legislation to replace the current SoE.


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  5. Coulda, and shoulda, been written 20 months ago.

    A day late, and a dollar short.

    As the poem ends:

    “Then they came for me—and there was no one left to speak for me.”



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  6. sfw, so far as I know, until Mon this week, this legislation was not public when it was accidentally leaked, and from the statements made by the Bar Association, the last ‘consultation’ they had was in June.

    Dover,
    Many of the criticisms in this letter are equally applicable to the current act.
    Far too late. The principles were broken back then. The rest is just a matter of scale.


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  7. That grotesque deformed jug eared imbecile has to be removed from his current position, which he has been utterly unfit to hold since well before his spectacularly idiotic state of disaster declaration last year.

    The precedents he has been setting are incredibly dangerous, not to mention wholly unacceptable.

    As noted here before, I blame him entirely for the fact that I’ve been under house arrest for almost four months – and I don’t even have the misfortune to reside in the wasteland he’s been tyrannising.

    The worst, most disgusting, staggeringly incompetent and arrogant politician in my lifetime, with daylight second.


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  8. The worst, most disgusting, staggeringly incompetent and arrogant politician in my lifetime, with daylight second.

    You can add unempathetic, heartless, corrupt, and many other character deficiencies.


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  9. At least a few prominent members of the legal profession have stuck their heads above the parapet.

    Not so for the much more numerous members of the medical ‘profession’ – with a few honourable exceptions.

    Alfred Hitchcock said that actors are cattle. Well, we now know that doctors are sheep.


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  10. johanna

    Without wanting to defend docs too much…

    Most have spent 8+ years to get their professional accreditation.
    That accreditation is overseen by a bunch of non-professional beuraucrats who can remove that or inflict death by compliance on any Doc they wish too.

    Have a look at the management..
    Only one doctor, and they are urbanus bugmanus superior in every way.

    https://www.ahpra.gov.au/About-Ahpra/Who-We-Are/Agency-Management-Committee/Member-Profiles.aspx

    They are all professional “managers”.


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  11. Well, it’s unlikely that people from another Galaxy voted Labor in, just Victorians above ground and perhaps a few from below ground as used to be the case, so although they have our sympathy they voted Labor in just as “we” did in Queensland much to the shame of those who didn’t and never will vote labor.
    moderated

  12. “They are all professional “managers”.”

    They are a veritable “Complaint of Karens”.

    Nurses would gargle strychnine if they were told often enough that it was “good” to do it, and something something children. They’d then call you a fool for not doing it because they know it is “good” to do it (and something something children).

    Nurses at this level are too busy preening and posturing about bigger pictures (with themselves at the centre), to be bothered with simple realities such as toxicity of vaccines.
    moderated

  13. Good to see you all again BTW. I think Dr Matt, our vaccinator -in-Chief is over at Real News Australia bothering them.
    moderated

  14. Mole, I am well aware of the numerous expenses and indignities that medical students have to undergo in order to practise. It’s all part of the softening up process. By the time they get to hang their shingle out, they are saddled with debt and their livelihood can be taken away from them by the stroke of a pen.

    How absurd is it that only the cream of the academic crop are allowed to do this? Then, as GPs they spend most of their time on trivial complaints that a good nurse could handle, in ten minute blocks.

    Just imagine what these very bright people could achieve for the country (and themselves) doing something else?

    Given the way they are conditioned through their training, it is no wonder that many are compliant and incurious. The system does not reward those who are not.


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  15. Yes, the Lenin of Yarragrad has declared himself Dictator for Life of the People’s Republic of Victoria – but it is quite possible that the inhabitants will still vote for Dan at the next election (that is, if another election is held).
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  16. Mater said @1.12 p.m.
    Then they came for me…

    I would add the words of Elie Wiesel which should be taught to each and every one;

    “We must always take sides. Neutrality helps the oppressor, never the victim.
    Silence encourages the tormentor, never the tormented. Sometimes we must interfere. When human lives are endangered, when human dignity is in jeopardy, national borders and sensitivities become irrelevant. Wherever men or women are persecuted because of their race, religion or political views, that place must-at that moment-become the centre of the universe.


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  17. sfw:

    Good but way too late. Where have these people been for the last 20 months? Andrews crushed Victorians liberty and rights and they’ve all been silent. This legislation has been around for a month or more and they’ve said nothing. They’re worse than useless, grandstanding after the event, useless.

    Claytons protest – having done Jack Shit for the last 20 months, they can now point to their Libertarian credentials by denouncing the legislation when it has been pushed through.
    The criticism cost them nothing and is worth even less.


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  18. “Claytons protest…”

    Prezactly – if the majority thinks it great, they go quiet, and having achieved nothing anyway, they’re good. If the majority thinks it’s bad, they can say they tried.
    Perfect CYA position, nothing more, nothing less. Bonus: no risk of political push-back.


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