- Pandemic orders are expressly allowed to “differentiate between or fluctuate in its software to individuals or lessons of individual recognized by reference to an attribute throughout the that means of the Equal Alternative Act 2010” (s 165AK(4)).
The latter consists of a variety of protected attributes together with “political perception or exercise” (Equal Alternative Act 2010 s 6). Thus, the Invoice expressly contemplates that the minister could make a pandemic order concentrating on individuals on the premise of their political views or actions if the minister varieties the view that that is “moderately vital to guard public well being”.
It isn’t troublesome to think about how some future well being minister would possibly kind this view in respect of political views or actions that contain questioning or opposing the federal government public well being measures.
In any occasion, the governing social gathering could command a majority within the SARC, as is the case for the time being. Thus, in actuality, Parliament’s means to manage the minister’s energy via disallowance goes to be very restricted or non-existent.
The Invoice additionally confers extraordinarily broad and unchecked powers on authorised officers:
- With out in search of to in any approach denigrate their essential work, it’s to be remembered that authorised officers are quite a few and unelected, and embrace comparatively low-level officers, together with officers appointed by native councils and different public servants (Public Well being and Wellbeing Act 2008 s 31). As at late 2020, there have been as many as 382 authorised officers in Victoria. Loielo v Giles  VSC 722; (2020) 63 VR 1 at -.
- But, the Invoice confers on these authorised officers extraordinary powers, once more successfully for the foreseeable future. If authorised by the CHO, they are going to be capable to, amongst different issues, “take any motion or give any route, apart from to detain an individual, that the authorised officer believes in all fairness vital to guard public well being” (s 165BA(1)(a)).
These instructions can goal a number of folks in sure circumstances, together with if the route “pertains to a selected exercise at a selected location and is given to individuals enterprise that exercise (together with, however not restricted to, a route to limit motion, require motion or restrict entry)” (s 165BA(4)(b)).
Thus, a person authorised officer will single-handedly have the ability to close down a political protest if the officer subjectively believes that that is “moderately vital to guard public well being”.
- These instructions are, once more, successfully unreviewable.
The Invoice additionally comprises many different troubling parts, together with abrogating privilege towards self- incrimination (s 212A) and entrenching the system the place administrative detention is reviewable not in a courtroom however by Detention Overview Officers appointed by the division (ss 165BI and 165BJ).
It’s, in our view, no reply to those criticisms to say that the Invoice comprises extra safeguards than presently exist for the emergency powers beneath the Public Health and Wellbeing Act 2008. The emergency powers are simply that – extraordinary powers which might be accessible to be exercised for under a really brief interval (initially six months, although this era was prolonged).
There isn’t a want to present the federal government of the day a clean cheque to rule by decree.
It’s one factor to permit short-term rule by decree to take care of an unexpected and extraordinary emergency in circumstances of maximum urgency. It’s one thing else altogether to entrench rule by decree as a long-term norm.
In our view, that is antithetical to primary democratic rules and shouldn’t be allowed to occur.
We are actually greater than 18 months into the pandemic. It has develop into clear what kind of powers could be required to take care of it. There isn’t a want to present the federal government of the day a clean cheque to rule by decree.
As a substitute, the Invoice ought to give the minister particular powers to do particular issues (reminiscent of border closures, lockdowns, masks and vaccination mandates, and many others), topic to particular and prescriptive necessities listed within the Invoice, and topic to unconditional Parliamentary disallowance (i.e. with out requiring any SARC advice).
If these powers show insufficient, the minister can come again to Parliament and search further powers. That is how a parliamentary democracy is supposed to work.
If there’s a want for a normal energy to make orders within the case of some new unexpected improvement requiring pressing motion earlier than Parliament has an opportunity to contemplate the proposed measures, such energy needs to be restricted to orders that lapse after a really transient interval until confirmed by each homes of Parliament.
On the very least, the ability to make normal pandemic orders have to be topic to unconditional disallowance by Parliament (i.e. with out requiring any SARC advice).
We name on the Parliament to amend the Invoice or vote towards it.
Ross H Gillies QC, Jennifer J Batrouney AM QC, James W S Peters AM QC, Peter W Collinson QC, Philip D Crutchfield QC, David J Batt QC, Stuart Wooden AM QC, Gregory P Harris QC, Gerard D Dalton QC, Paul J Hayes QC, Stewart J Maiden QC, Richard P P Dalton QC, Eugene Wheelahan QC, Dimitri Ternovski