Dispute over department claim Vic Bar was consulted on pandemic laws

By Melissa Coade

Thursday October 28, 2021

Daniel Andrews
Victorian premier Daniel Andrews. (AAP/JAmes Ross)

The head of the Victorian Bar Association (Vic Bar) has admonished new state legislation to change laws around pandemic management and state of emergency powers, saying a summary of the proposed bill by the minister of health ‘grossly misrepresented’ that the barristers’ were consulted as external stakeholders, and that he has ‘grave concerns’ about some of its content.

In an open letter to Vic Bar members, president Christopher Blanden QC said he had participated in a 45-minute virtual meeting organised by the Victorian Department of Health in June as part of an expert reference group with numerous other parties.

The broad issue of the declaration of pandemics was raised. There was no further contact,” Blanden said.

Then, again in late September, Blanden said two Vic Bar council members were registered to attend another one-hour ‘consultation workshop’ about the ‘development of a new pandemic-specific part of the Public Health and Wellbeing Act 2020 (PHW Act)’.

“This workshop was cancelled at short notice and never rescheduled,” Blanden said.

“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.”

Blanden said he was concerned that the proposed bill, which was only made available on the state parliament website this week, conferred effectively unlimited power to the health minister to ‘rule the state by decree, for an effectively indefinite period, and without effective judicial or parliamentary oversight’. 

Furthermore, the ‘draconian’ powers granted what Blanden said were ‘virtually unlimited’ interference with the liberties of Victorian citizens with no checks or balances to ensure it was being exercised responsibly.

This represents the biggest challenge to the rule of law that this State has faced in decades,” Blanden wrote in his letter.

The minister’s power is available when a pandemic declaration made by the premier is in force. It can be expected that such a pandemic declaration will be in force for the foreseeable future.

“The scope of the power is extremely broad. The minister may make ‘any order’ that the minister ‘believes is reasonably necessary to protect public health’. The content of the orders is effectively unlimited.”

According to Blanden, several of the ‘problematic provisions’ of the proposed bill conferred broad power on authorised officers without effective review or oversight. He said this included granting police power to enter premises without a warrant and abrogating privilege against self-incrimination.

Blanden is a member of the Liberal party and will not be contesting the next Vic Bar council election.

The barrister went on to outline that, in his view, the emergency powers expressly permitted orders by the health minister to discriminate on the basis of political beliefs, which ran contrary to the provisions of the Equal Opportunity Act.

“The practical ability to challenge these orders in the Supreme Court is likely to be very limited because the bill confers a very broad discretion premised on the subjective belief of the minister that the order is ‘reasonably necessary’,” Blanden said.

Avenues to block an order through other usual mechanisms, such as a disallowance by parliament on the recommendation of the scrutiny of acts and regulations committee, were also curtailed in this case, the Vic Bar president explained.

“The committee can only recommend disallowance on narrow grounds, effectively confined to the order being beyond power or breaching the Charter of Human Rights and Responsibilities Act,” Blanden said.  

“The committee has no power to recommend disallowance because it disagrees with the order. Further, the government of the day may have a majority on the committee, as is the case presently.”

The Vic Bar called for a reasonable period for discussion and debate of the proposed law reforms, as a necessary step in delivering measured changes.

“There is simply no excuse for pushing it through in the way it has been,” Blanden said.


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