Dan’s pandemic laws need more oversight, even if they’re not actually ‘draconian’

With 262 days of lockdown to its name, Victoria has been home to some of the most divisive pandemic politics in the country. Even with restrictions finally ending, nerves are frayed, emotions are high, and exhaustion clouds everyone’s judgment.

So just as Victorians were trying to forget the past 18 months, new pandemic laws have taken many by surprise. 

Under the changes, the premier and health minister will be empowered to declare pandemics and impose public health orders — a departure from the current arrangement under which the chief health officer holds most of the power. People found guilty of “intentionally and recklessly” breaching public health orders would face two years’ jail or a $90,000 fine, and a minister can detain a person for as long as they think is “reasonably necessary”. 

There is plenty to unpack about the laws, and a lot of the nuance has been left behind in media coverage — perhaps a symptom of a state that doesn’t want to talk about the pandemic any more, and one that is deeply divided about lockdowns, even if it still, on the whole, it supports the Andrews government.

The opposition says the powers are draconian — and there are certainly some extreme elements to the legislation. Although it improves some of the current emergency powers, there is concern among legal groups that it gives far too much power to the government without any oversight mechanism.

Victorian Bar president Christopher Blanden QC has slammed the powers as “disgraceful”, saying they will give the government “unlimited power to rule the state by decree”.

The Human Rights Law Centre was more cautious, saying on the whole they provide stronger safeguards around detention and police powers, but could be improved by including oversight.

Why now?

The government’s emergency powers are due to expire on December 15, and there has been pressure from the crossbench not to renew them — which is why it turned to this legislation.

Victoria’s heavy use of emergency powers last year was criticised, not just by the opposition and liberty groups but by senior lawyers who questioned whether public health orders should have been treated as legislative instruments and properly tabled in Parliament. 

The decision to lock down public housing towers last year under public health orders was also later found to be in breach of human rights by the Victorian Ombudsman.

What’s missing?

While it’s true the laws may improve the emergency powers the government acted on last year, it’s also true they are missing key oversight mechanisms that would hold the government more strongly to account. 

Dr Catherine Williams, a research director at the Centre for Public Integrity, tells Crikey that the Victorian Ombudsman would be the perfect body to ensure the rules are enacted fairly.

“If there is no review mechanism, that is very worrying,” she said. “If you’re going to give Parliament power to curtail fundamental rights and freedoms, then there must be sufficient protections in place.”