Rights and Freedoms

Victorian COVID-19 Detention Powers Could Be Unconstitutional: IPA Report

Written by
25 March 2022

The Institute of Public Affairs has today published new research highlighting how the powers of detention in the Victorian government’s pandemic management legislation could be struck down for being incompatible with the Australian Constitution.

“The powers of detention in this legislation are completely abhorrent to the rule of law,” said Morgan Begg, the Director of the Legal Rights Program at the IPA and author of the new report, Powers of Detention in Victorian Pandemic Legislation.

“The new laws give a green light to government officials to exercise excessively broad powers without any effective oversight or accountability.”

“A person arbitrarily deemed a threat to public health according to the mere belief of an official would have fewer rights than an accused terrorist,” said Mr Begg.

The report argues that the pandemic management powers confer on Victorian government officials powers which are against the spirit of the Victorian Charter of Human Rights and Responsibilities as well as the ancient common law right of habeas corpus, in which a detained person can be brought to court so the validity of the detention can be determined.

The analysis also finds that the powers are vulnerable to a legal challenge because bureaucrats are given powers which are fundamentally judicial in nature:

  • The duration of pandemic detention orders is at the discretion of officials from the executive branch of government;
  • This power can be exercised without traditional judicial oversight or control by the courts;
  • The immediate power to review a detention order is exercised

“Laws that degrade our democracy and the rule of law in this way represent a deep failure of the political class to uphold values that have taken centuries to develop.”

“The protection of public health can be managed without resorting to draconian rule and wiping out checks and balances on power such as the courts,” said Mr Begg.

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Morgan Begg

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

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