Liberty Victoria response to Pandemic Specific Legislation

Liberty Victoria has published a detailed comment in response to the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021, available on its website.

Liberty Victoria welcomes the introduction of pandemic specific legislation with much improved accountability and transparency provisions, which do not exist for the current state of emergency powers.

The state of emergency powers were not framed with ongoing pandemics in mind, and the purpose of those powers was designed for short-term crises. This means that the emergency powers have been a blunt instrument and not fit-for-purpose in respect of more long-term dangers to public health. There is therefore a need for pandemic specific legislation.

The Bill provides greater regulation of the powers to make a pandemic declaration, and permits Parliament to disallow an order if the Scrutiny of Acts and Regulations Committee makes a report with such a recommendation. The Bill also includes greater transparency measures than those that exist in the Public Health and Wellbeing Act (PHWA) currently, by requiring the publication of public health advice and human rights considerations in respect of pandemic orders. This is to be commended. However, these principles should not just apply to pandemics, but to the exercise of the state of emergency powers under the PHWA in general. The Bill could be improved by those principles expressly applying to the PHWA as a whole, not just to the pandemic-specific part of the Bill.

Liberty Victoria welcomes the inclusion of principles in the Bill that expressly require that decisions are made and informed by public health advice, transparency and accountability is promoted, contact tracing information is protected, and that any limitations on the human rights protected by the Charter should be demonstrably justified in accordance with s 7(2) of the Charter. These kinds of clear principles are not made express in the current PHWA.

Liberty Victoria also supports the introduction of clear privacy protections of information gathered for public health reasons. This is something that Liberty Victoria has advocated for on a number of occasions and the Bill is a significant improvement on the current state of affairs.

The introduction and role of the Independent Pandemic Advisory Committee is also to be commended. In order for the committee to carry out its functions properly, the committee must be given adequate funding and resources, otherwise its purpose and role will likely be diminished.

Liberty Victoria also supports the introduction of a concessional infringement scheme for eligible persons. However, it appears this scheme will not operate retrospectively, so those who have already been fined under CHO directions since March 2020 will not get the benefit of the scheme. To improve this, the Bill should include an express provision that the concessional infringement scheme applies to infringements that have been issued since March 2020. Further, there should be additional funding for community legal centres and Victoria Legal Aid so that they can assist eligible persons to access the concessional infringement scheme.

The Bill is not perfect and Liberty Victoria has concerns about aspects of the proposed new legislation.

For example, Liberty Victoria opposes the introduction of an aggravated offence which carries imprisonment as a penalty. Even though proceedings for that offence cannot be commenced without approval of the Secretary or the Chief Commissioner of Police, Liberty Victoria is concerned that this offence will apply disproportionately to vulnerable people, as has happened with infringements handed out in breach of CHO directions over the last 18 months.

Liberty Victoria’s comment also recommends a number of improvements that should be implemented, such as:

• The role of SARC and its ability to recommend disallowance of a pandemic order should be improved, so that disallowance of a pandemic order can occur when only one House of Parliament votes for it;
• There should be an affordable and effective merits review available to people affected by a pandemic order, particularly for orders that involve detention;
• There should be permanent protections for renters whose ability to pay rent is affected by restrictions imposed for public health purposes;
• There should be an express statement in the Bill that instruments such as pandemic declarations and pandemic orders have to be interpreted in accordance with the Charter.

Liberty Victoria’s comment contains more detailed commentary and information about the Bill and we encourage everyone to read the whole comment.

For questions or further information, please contact Liberty Victoria: info@libertyvictoria.org.au or 03 9670 6422.