IPA Today

So Much For Amendments To The Pandemic Bill. Habeas Corpus Still Goes Out The Door

Written by
16 November 2021
Originally appeared in The Spectator Australia

The idea that a government could be handed near-absolute power to control the lives of citizens indefinitely ought to be unthinkable in Australia.

But this will be the reality if the Andrews Victorian government is successful in ramming its new pandemic management legislation through the legislative council this week.

In addition to the existing public health emergency powers, the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 would grant additional extraordinary and unchallengeable powers to the premier and health minister.

The Bill would if passed give Daniel Andrews and his officials permanent dictatorial powers over Victorians.

Under the proposal, the Premier would wield the power to make a ‘Pandemic declaration’ if he is merely ‘satisfied’ that there is a serious risk to public health arising from a disease of pandemic potential. The premier could continue to extend the pandemic declaration by three-month increments an infinite number of times.

The power to make and extend a pandemic declaration even if a disease is not present in the state is egregious and illogical. The parliament is capable of convening to debate how the government should respond to a potential pandemic. To sidestep this altogether speaks to the reflexive authoritarianism of the Andrews government.

Once a pandemic declaration has been made, the health minister would wield unparalleled power to issue ‘any order’ the minister ‘believes it is reasonably necessary’ to protect public health. Challenging the minister’s arbitrary decisions to impose indefinite lockdowns, for instance, would require a challenge to the minister’s subjective belief, an effectively insurmountable task.

Authorised officers would be given draconian powers to exercise ‘pandemic management general powers’ to ‘take any action or give any direction’ that the officer ‘believes is reasonably necessary to protect public health.

A person detained by an authorised officer would not be entitled to appear before a judge to determine if their detention is lawful. The courts, and the ancient right of habeas corpus, would instead be replaced by a Detention Review Officer appointed by the health department.

The extraordinary powers in this Bill would be exercised without any effective oversight or scrutiny from the courts or parliament.

The powers of the health minister and the authorised officer are so broad and subjective as to be unreviewable by any existing legal standard.

The parliamentary committee set up to scrutinise pandemic orders is always dominated by MPs from the same party as the health minister, and has overly narrow scope to suspend or disallow orders anyway.

What the Andrews’ government is demanding is unprecedented. The government’s totalitarian response to COVID-19 would become a permanent fact of life in Victoria.

The legal community, which is an infrequent critic of the Andrews government, is also speaking up. The Victorian Bar has urged delay of the Bill, warning “it authorises extreme limitations of basic liberties of all Victorians and confers enormous powers on the executive.”

The Law Institute of Victoria argues the Bill “does not sufficiently protect the rights of Victorians” and lacks proper parliamentary oversight.

No fewer than 60 Queen’s Counsels have signed an open letter noting “it is one thing to allow temporary rule by decree 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.”

Up to this point the state government has exercised broad and unchecked discretion to limit when and why Victorians can leave their homes, close businesses, prohibit gatherings, and threaten the jobs of Victorian workers through arbitrary vaccine mandates.

Victorians have copped the draconian overreach in the hope that it would all be temporary. The present state of emergency has at least a nominal end date, due to expire in December. But what has been temporary will become permanent.

In Australia, a government must never have the power to make laws without parliament, enforce laws without scrutiny, or detain citizens indefinitely. This is no less true during an emergency.

A government is exercising extraordinary powers is a government that possesses greater scope to abuse power. A period of emergency is a time where checks and balances on power is even more important, not an excuse to indefinitely suspend parliamentary democracy, which is what this Bill offers.

Reportedly, upper house crossbenchers Fiona Patten, Samantha Ratnam, and Andy Meddick have agreed to a small number of minor amendments to the Bill and is now set to pass.

The amendments are mere window dressing that will not cure the fundamental defect in the Bill – namely the plenary power to rule by decree without adequate parliamentary control or scrutiny.

Before to the vote on the bill, the members of the Legislative Council would be wise to consider that no Victorians have ever voted for politicians to so cheaply sell their democratic rights and freedoms in this way.

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Morgan Begg

Morgan Begg is the Director, Legal Rights Program at the Institute of Public Affairs

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