Victorian Health Minister Martin Foley – who, together with any successors, would have those pandemic powers – told media this week: “We’ve got nothing to shy away from when it comes to the manner in which we’ve operated over the past two years, in what’s been a really, really challenging global pandemic. The lessons that we’ve learned over that period of time are now reflected in this bill.”

Specifically, the proposed legislation will shift the power to declare a pandemic from the chief health officer to the Premier. It will allow the state’s pandemic status to be declared for up to three months at a time, will provide broad powers to the Health Minister to make public health orders and will create an independent pandemic management advisory committee that is made up of key human rights individuals.

Predictably, Opposition Leader Matthew Guy described the proposal as an “attack on democracy” and said he was particularly concerned about the “unprecedented” legislation that would grant Dan Andrews such extraordinary powers. Mr Guy has not been the legislation’s only critic, particularly within the legal profession.

The arguments against the pandemic legislation

As previously reported by Lawyers Weekly, the Victorian Bar Association has been one of the legal profession’s strongest critics against the legislation. Immediate past president Christopher Blanden QC said the bill lacks the “appropriate checks and balances to ensure the proper exercise” of the “extraordinary” powers.

Mr Blanden said he was particularly frustrated with the government for naming the Victorian Bar as being part of an “expert reference group” that discussed the legislation. He clarified that rather than take part in any comprehensive review of the bill, there was a 45-minute meeting that only briefly touched on the issue.

In a more recent statement, new Victorian Bar president Róisín Annesley QC added that the proposed amendments address low-priority issues and not the most fundamental problems with the bill: “The major issues include the lack of effective parliamentary control over the minister’s pandemic orders and the lack of provision for an independent review of authorised officers exercise of power.”

The brunt of its concern with the legislation is that the bill confers effectively unlimited powers on the Health Minister to rule by decree, for an indefinite period and without effective judicial or parliamentary oversight. Mr Blanden said previously that it would be the “greatest challenge to the rule of law in decades” if passed.

In a detailed submission to the Department of Health, the Victorian Bar called for the bill to be amended so that pandemic orders can be disallowed by the House of Parliament without the need for a scrutiny of acts and regulations committee recommendation. It also requested a change to allow detained individuals to seek a merits review of their detention by an independent court.

A number of amendments were made in recent days to alleviate concerns, including adding “on reasonable grounds” in the declaration clause so the Premier must be satisfied on reasonable grounds that a pandemic should be declared. Financial penalties will be halved, and there will be clarification on the application of the Charter of Human Rights and Responsibilities for decisions under the legislation.

Although the Law Institute of Victoria welcomed the amendments, the peak Victorian legal body said it still does not go far enough. It has requested that further amendments be added so that the bill has effective independent oversight and scrutiny and stricter controls on the use of information gathered for health purposes.

President Tania Wolff said if the recommendations around independent oversight, external, review, detention and privacy are not adopted, “then at a minimum, we call for a sunset clause so that the new part would expire in 18-24 months”.

“This allows the government to continue to meet the challenges of this current pandemic, but ensures an opportunity for further independent review so that the legislation is fit for purpose for any future pandemics,” Ms Wolff commented.

The arguments for the pandemic legislation

On the other side of the fence is Maurice Blackburn Lawyers CEO Jacob Varghese, who argued that if the bill does not pass, “Victorians will have fewer freedoms and will be less safe”. He added the proposed bill is preferable over a new state of emergency, which will give less protection against pandemics and individual rights.

“The amended Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 will make Victoria’s pandemic legislation better than it was before March 2020 and better than it is in many comparable jurisdictions,” Mr Varghese said.

“The bill provides much more accountability and transparency than has been the case over the past two years. And it rightly makes elected officials, acting on independent advice, the decision-makers over public safety. That is how a democracy should work. The parliamentary process being adopted is the right one.”

Following the amendments, the Human Rights Law Centre (HRLC) has also supported the bill. Legal director Daniel Webb said the safeguards would ultimately assist the government in making better decisions while maintaining public trust – and overall commended the legislation’s changes for being a “huge improvement”.

“The pandemic isn’t over, and governments around the country continue to use public health and emergency powers to help manage it. The easy thing for these crossbench MPs to do would have been to just grant another extension under the existing law. Instead, they’ve used this moment to take advice from a range of experts and worked to make the law better,” Mr Webb commented.

“It now looks like we’ll emerge from all of this with a much better law than what we had before, thanks largely to their efforts.”

Unlike the legislations’ critics, Mr Varghese commended the Victorian government on its “very determined leadership” throughout the last two years, especially “in the face of often unreasonable and sometimes opportunistic criticisms”. He also made it clear that the legal profession will come with many different opinions on the matter.

“The legal community includes professionals with a wide range of views on the bill. No one should suggest the profession as a whole has a single position much less that the profession as a whole opposes these measures,” Mr Varghese said.

“Where the legal community certainly should speak as one is in our absolute commitment to a truthful public debate. Comparisons to totalitarian regimes are utterly ridiculous. And we should be united in our absolute commitment to the rule of law and a political process completely free of violence or the threat of violence.”