The New Pandemic Powers
There has been a lot of misinformation about this Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021.
So what does it really do?
About the bill
The Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 gives the government similar powers as the currently operating state of emergency powers, set to expire in mid-December. This will allow things like quarantine, contact tracing interviews, and density limits, to continue next year. The laws are also designed in case they are needed in the future for some other pandemic threat.
The powers come with added oversight: an independent expert committee will publicly criticise unnecessary or excessive health orders. There is more transparency: the chief health officer’s advice will now also be public, and this makes it harder for any government to be heavy-handed or to depart from expert health advice without a compelling reason. There are protections for disadvantaged groups: there are lower fines for people on income support or with healthcare cards. There are stronger protections not just for the QR code data but for contact tracing interview data: neither of these can be used by police for a prosecution, and they are only available if someone’s life or safety is at imminent risk.
The bill has flaws, and the Greens have concerns about how the government may use these powers. But the bill is better than the current state of emergency laws, and with hundreds of COVID patients in our hospitals right now and 265 deaths in October, we still need a strong public health framework in place to respond to this pandemic.
The bill has more robust checks and balances than any other state’s public health legislation, including the current state of emergency powers, something that critics, like the Liberal Party and the Victorian Bar, have failed to acknowledge.
Why did we need new legislation?
It’s worth looking back to see how we got to this point. The state-of-emergency powers in the Public Health and Wellbeing Act 2008 have proven to be something of a blunt instrument. There have been episodes of heavy-handed enforcement.
For example, Sudanese and Aboriginal people were over-represented among those fined for breaching COVID rules. Fines for COVID breaches have been too high, especially for children and those on low incomes, and tens of thousands of fines remain unpaid.
We think that after the Victorian government closed the New South Wales-Victoria border this winter, they could have allowed the safe return of vaccinated people with negative tests months earlier than they did.
The Victorian Ombudsman found that the rushed nature of the lockdown of the public housing towers in Flemington and North Melbourne last year, was not based on health advice and breached the human rights of residents.
There has also been a lack of clarity about who has had the final say on lockdowns and other public health decisions. We know that the chief health officer and the Minister for Health and the Premier are in the front seat driving the car, but it is hard to see exactly whose hands are on the wheel at any given time.
During the pandemic we have seen the rise of misinformation attacking public health interventions such as lockdowns, vaccines, and masks. Much of this misinformation has been nonsensical. For example, anti-lockdown activists have cast doubt on the veracity of polymerase chain reaction (PCR) testing, a mainstay of modern microbiology. Misinformation about vaccines and the promotion of ineffective treatments like hydroxychloroquine and ivermectin, much of it funded by the billionaire Clive Palmer, has led many to forgo vaccination, and this has undoubtedly contributed to the deaths of some Victorians.
So when the state-of-emergency needed to be renewed in September last year many of the upper house crossbenchers abandoned the scientific evidence calling for public health measures and refused to renew it for six months. They demonstrated no ability to balance human rights appropriately with the need for strong disease control measures in a public health emergency. This would have left us defenceless against the current wave of the Delta variant of the virus, and its resulting toll of hospitalisations and deaths. Greens leader, Samantha Ratnam had to interrupt her maternity leave to attend parliament and vote to get the legislation through, and the process was repeated again in March this year.
Negotiating the new bill
The Greens and Reason Party MP Fiona Patten met with the government several times during the year and the Greens requested various protections for human rights and vulnerable groups. We didn't get everything that we wanted, but we did achieve stronger measures to protect contact-tracing interview data and QR code check-in data, which will not be allowed for use in prosecutions except for breaches of the act and will only be made available to police if there is an imminent threat to life or safety. We were unsuccessful in achieving an expanded role for IBAC in investigating complaints against police, or in gaining measures to prevent racial profiling. As noted above, we achieved a lower rate of fines for people on income support and I think this is a first for Victoria.
We discussed whether public health orders should be issued by the Chief Health Officer (CHO) or by the Minister for Health. We felt more comfortable with such sweeping powers being in the hands of an elected official, even though the current CHO has the confidence of the public. Under the current arrangements, it’s hard to avoid the perception that the Government may be influencing the CHO. Under this Bill, the CHO will table their advice to parliament and the Minister will issue health orders. This protects the CHO from blame. The Minister has to consider their advice and we all get to see what it was. But the Minister’s hands are clearly on the steering wheel and if there is fault to be found, it’s the Minister who gets the blame.
This Bill also improves oversight by creating an Independent Pandemic Management Advisory Committee, comprising health and human rights experts, who will review public health orders and table (publish) their reports. The Greens wanted this committee in the legislation because we wanted independent and respected expert reviewers commenting publicly on the Health Minister’s pandemic orders. This, along with the CHO’s advice in Parliament, will make it politically difficult for a government to sustain pandemic orders without solid public health reasons. This expert committee is intended to balance human rights and public health in a way that Victoria’s upper house has repeatedly failed to achieve.
The CHO and the Independent Committee will both need sufficient resources to do their jobs well, and we will continue to pressure the Government on this.
Further oversight is provided by the Scrutiny of Acts and Regulations Committee (SARC) reporting on the pandemic orders. SARC can recommend disallowance by Parliament.
Responding to the criticism
The Bill has come in for a lot of criticism, some of it accurate, much of it confected, and most of it equally applicable to the state of emergency provisions in the Public Health and Wellbeing Act which are in force today.
The Centre for Public Integrity, Liberty Victoria, the Law Institute and the Human Rights Law Centre have all said that the bill is a significant improvement on these state of emergency laws, but they have expressed concerns about aspects of the bill and suggested areas for improvement, much of which I agree with.
The Centre for Public Integrity argues that SARC should be able to choose exactly what it reports on rather than just the pandemic orders. They also believe SARC’s powers should not have to rely on the government complying with certain procedures. They are right. They also recommend an oversight role for a statutory authority like the Ombudsman. We suggested to the Government that the Ombudsman could convene the expert review committee, which did not eventuate in the Bill, but which we would certainly support.
I also agree with Liberty Victoria and the many others who argue the Bill was needlessly rushed through the lower house. I would also add that the fines in the Bill are excessive and should be reduced.
And the Human Rights Law Centre expressed concern about the lack of an outer limit on pandemic declarations, which is correct but, they say, this legislation includes more transparency and better parliamentary scrutiny than the existing laws. We think that by ensuring the government has the power to make all decisions, this means that they are fully accountable for these decisions to the people at election time, and cannot blame public servants, the parliament or the courts for any failures. This is the way that other Australian jurisdictions are operating.
We have the greatest respect for the Victorian Bar and always consider their advice alongside that of the legal groups mentioned above. Criticism from the president of the Victorian Bar, and a group of QCs, appears not to consider the Bill in light of the experience of the past two years. They argue that extreme interpretations and hypothetical possibilities are reasons why the legislation should not be passed.
For example, they say the laws allow rule by decree. The CHO's directions, under the current state of emergency laws are effectively decrees. We may disagree with some of them, or with their extent or duration, but they have all clearly been made with the intention of controlling infection rather than for any other purpose. Public health emergencies require these powers and every state has them. They also say that these are unprecedented and endless powers, when there is no greater power proposed than currently is also provided in NSW (but with far fewer checks and balances in that jurisdiction).
They are also critical that the bill allows pandemic orders to “differentiate between or vary in its application to persons or classes of person identified by reference to an attribute within the meaning of the Equal Opportunity Act”. They argue this could be used to single out people by political belief. This is technically true, but this phrasing actually allows directives that are proportionate and limited based on epidemiological risk, rather than applying to everyone. It is much more realistic that an order could identify a class of person relevant to public health, such as arriving from a particular country, or being in a certain age group or having COVID.
That is not to say that their criticisms should be ignored, but rather that the parliament faces difficult choices between this legislation, renewing the existing state of emergency or doing neither and leaving us to the virus from mid-December onwards. I cannot guarantee that the government will always use these powers in ways that I would support. For example I question whether we need vaccine passports until 2023, as the Premier recently said. But governments need public health powers. And we gain additional transparency and oversight in this Bill, making it harder for governments to use these powers excessively for any length of time.
It is not sufficient to argue that these laws impinge human rights. There has always been a tension between disease control and human rights, ever since John Snow took the handle off the Broad Street water pump to stop the cholera epidemic. These laws are designed to enable governments to halt the spread of disease by stopping the movement and mixing of people – a fundamental intrusion into our human rights. The public health directions we have endured for more than 18 months impose collective sacrifice for the public good. This is unpalatable to some in our community.
My former medical colleagues working in COVID wards tell me how hard the work is and how sick many of the patients are. We are still in the grip of a serious public health emergency. If a vaccine-evading variant becomes prevalent somewhere in the world, I want our government to be able to mandate quarantine for people arriving from that country.
I look forward to working with legal and medical groups to ensure we find the best balance in these laws between the need to respond to pandemics and the need to protect the rights of all, particularly vulnerable groups. I hope we can improve the legislation further in the upper house, but given these choices I want the government to be able to continue to respond to, whatever the pandemic throws at us next.