Update: The Vic Bar Association has since released a press release confirming my opinion here. They point out that under this bill, individuals who are detained [are unable to] seek a merits review of their detention by an independent court. [All they have available to them is an ]Internal review by a person who is employed by the Department of Health[, which] is not an acceptable independent safeguard.
The government in league with the crossbench is pretending that they have addressed the substantive criticisms of the Pandemic Bill which cedes to any Premier, under their own determination, emergency powers.
Let’s compare the criticisms as presented in the Open Letter with the proposed amendments released yesterday evening:
- 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.
- 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.
- 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.
- 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)).
- 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).
- 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.
- 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)).
Do the amendments address any of these concerns? No, they don’t. The first involves simply adding the very low threshold of ‘reasonable grounds’ on the Premier’s declaration. Given what the QCs say in point 2,
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 declaration would be very unlikely to be challenged on the merits in a court.
Secondly, the reduction of the reporting period of pandemic order from 14 to 7 days and the reduction of 6 to 4 for the tabling requirement is inconsequential. It does nothing to limit the power of the Minister or Premier; it is purely administrative. Thirdly, enabling Scrutiny of Acts and Regulations Committee (SARC) to consider the order when it is made rather than tabled is again inconsequential. As the Open Letter already admits, 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.
In other words, SARC will never practically countermand the decisions of the Minister or Premier. Fourthly, “the application of pandemic orders based on characteristics, attributes or circumstances of persons must be relevant to the public health risk” is again inconsequential. It follows from point 2 of the Open Letter, the relationship between characteristics, attributes, or circumstances and public health risk will be entirely a subjective matter for the Minister, again: 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”
There is simply no change here from what we knew of the bill only a couple of weeks ago to today.
The entire negotiation with the crossbench is a charade. Political theatre a couple of days out in which the crossbench, who a few weeks earlier had no problems with the bill, and with Perfidious Dan trying to pretend that he is ‘listening’, establish a narrative that they have reigned in the Pandemic bill while not having done so at all.