Over the past 24 hours, the Victorian Bar has become aware of a bill to amend the Public Health and Wellbeing Act 2020 (PHW Act) in respect of, amongst other things, pandemic management.
The Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 (Bill) has been made available on the Parliament of Victoria website only this afternoon.
The Minister of Health’s Bill Summary claims the Department and an “Expert Reference Group” (ERG) undertook targeted consultation and names the Victorian Bar as one of the external stakeholders “consulted”.
This is a gross misrepresentation. The Victorian Bar was not consulted. The President of the Victorian Bar participated in a 45-minute Microsoft Teams meeting organised by the Department of Health on 28 June 2021. The ERG and numerous other parties also attended.
The broad issue of the declaration of pandemics was raised. There was no further contact.
The Victorian Bar was never provided with a draft Bill. Two members of the Victorian Bar Council were registered to attend a 1 hour “consultation workshop” with the ERG on 28 September 2021 about the “development of a new pandemic specific part of the PHW Act.” This workshop was cancelled at short notice and never rescheduled.
It is unclear why a bill related to issues of management of future pandemics is being subject to a rushed and/or severely curtailed consultation process.
On an initial reading of the Bill, the Victorian Bar has grave concerns about some of its content.
The overriding concern is that the Bill confers on the Health Minister what is, in a practical sense, an effectively unlimited power to rule the State by decree, for an effectively indefinite period, and without effective judicial or parliamentary oversight:
The Bill also contains many other problematic provisions, including conferring very broad power on authorised officers without effective review or oversight, granting police power to enter premises without a warrant and abrogating privilege against self-incrimination.
The Bill confers powers that can be appropriately described as draconian in authorising virtually unlimited interference with the liberties of Victorian citizens. Yet the Bill lacks the appropriate checks and balances to ensure the proper exercise of these powers. This represents the biggest challenge to the rule of law that this State has faced in decades
A reasonable period for discussion and debate over the provisions of this Bill was and is necessary. There is simply no excuse for pushing it through in the way it has been.
Christopher Blanden QC