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Amendments contained in the Emergency Extension Bill go beyond what is strictly necessary

Public Health and Wellbeing Amendment

  • (State of Emergency Extension and Other Matters) Bill (Vic) – Exposure Draft

Liberty Victoria makes the following comments on the Exposure Draft of the Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Bill (Vic) (the Bill). The Bill proposes amendments to the Public Health and Wellbeing Act 2008 (Vic) (the Act).

Since the commencement of the COVID-19 pandemic in Victoria, Liberty Victoria has not wavered on the position that limits on rights and freedoms are sometimes necessary in order to preserve public health.

COVID-19 clearly poses a significant threat to public health. We have accordingly supported measures that have aimed to save lives and which have been reasonable and necessary.

The emergency measures, however, have posed a significant imposition on the rights and freedoms of Victorians. The current state of emergency declaration enables the Chief Health Officer to limit the capacity of Victorians to move around, associate with others, and work. Accordingly, it is vital that the emergency measures are strictly limited to what is necessary.

Liberty Victoria’s view is that almost all of the amendments contained in the Bill go beyond what is strictly necessary. We address each individually below.

The power to declare a state of emergency for up to 18 months (clause 5)

At present, s 198(7) of the Act ensures that a state of emergency cannot last more than 6 months. The current state of emergency, declared on 16 March 2020, is therefore due to expire in mid-September.

Clause 5 of the Bill seeks to increase the time limit in s 198(7) from 6 months to 18 months.

Liberty Victoria accepts that there is presently still a threat posed by COVID-19 and that some extension to the state of emergency powers is necessary, so that public health authorities can quickly respond to any increase in that threat.

However, the current 6-month limit exists for a good reason. The declaration of a state of emergency imposes extraordinary limits on Victorians’ human rights. Given the huge imposition on the rights of Victorians, the use of emergency powers should be strictly limited to what is necessary and, if required, extended on an as-needs basis.

The Premier has said that the amendments represent an “insurance policy”. Extraordinary measures that curtail the rights and freedoms of Victorian people should not be permitted if there is only a perceived future threat to the safety of Victorians. Such measures should only be utilised where such a threat actually exists. It is our view that the ability to declare a state of emergency for an 18-month period as an “insurance policy” is inconsistent with the preservation of Victorians’ human rights.

Instead, any extension of the state of emergency should be limited to a maximum of six months, with the four-weekly reviews that are currently required by the Act. A state of emergency allows the imposition of strict rules that carry criminal penalties, without those rules being debated or passed by Parliament. The power to impose those rules should only be for a time period that is strictly necessary and proportionate to the risk.

Changes to the definition of ‘serious risk to public health’ (clause 3(2))

Under s 198(1) of the Act, the Minister may declare a state of emergency only where there are “circumstances causing a serious risk to the public”.

Clause 3(2) of the Bill would expand the definition of the phrase “serious risk to public health” to state that COVID-19 may pose a material risk of substantial injury or prejudice to health of human beings even where the rate of community transmission is low or there have been no cases of COVID-19 in Victoria for a period of time.

Practically this would mean that the Minister can declare a state of emergency even where there are no active cases of COVID-19.

This amendment also provides no definition what “low” transmission is deemed to be and what length the “period of time” will be.

Liberty Victoria does not support the proposed amendment. Under the Act as currently constituted, the Victorian Government has been able to proactively impose substantial limits on the rights of Victorians because there have been high rates of community transmission that have risen rapidly. Due to the high rates of community transmission the imposition of limitations is necessary and proportionate.

However, the proposed amendments would unnecessarily broaden the situations in which a state of emergency could be declared. Extraordinary restrictions could be imposed even where there were no active cases of COVID-19 for an undefined “period of time”. Such amendments would enable the substantial curtailment of human rights even where doing so may not be necessary to preserve public health.

Amendments to s 199 (clause 6)

Section 199 of the Act applies if a state of emergency exists to allow the Chief Health Officer to authorise certain officers (including authorised officers appointed by the Secretary and/or local councils) to exercise public health risk powers and emergency powers.

Pursuant to s 199(1)(b), the authorisation can be made where it is “necessary” to eliminate or reduce a serious risk to public health.

Clause 6 of the Bill would amend section 199(1)(b) by allowing such authorisations to be made where it is “reasonably necessary”.

Under the current law, the Victorian Government has been able to effectively mandate the wearing of masks, severely restrict movement, and even detain people for the purposes of public health. No evidence or explanation has been provided which would justify this proposed amendment. It is unclear why the circumstances in which emergency powers can be exercised need to be expanded when the current laws have already been used effectively, and in some instances excessively.[1]

Amendments to s 200 (clause 7)

Section 200 of the Act creates a range of significant emergency powers including the power to detain a person (see s 200(1)(a)). If a person is made the subject of a detention order, s 200(7) of the Act requires that if an authorised officer give the Chief Health Officer notice of that detention.

Clause 7 of the Bill amends s 200 to include provision for a situation in which the authorised officer is the Chief Health Officer. In such circumstances, the Chief Health Officer must give the Minister notice of the detention.

The amendments in clause 7 contain additional safeguards to people who are detained to ensure that there is a notification made to an additional party (the Minister) if the authorised officer is the person to whom the notice would be given. Clause 7 is therefore a welcome amendment.

[1] Liberty Victoria, Submission to the Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic, 31 July 2020, <https://libertyvictoria.org.au/sites/default/files/Liberty%20Victoria%27s%20subm_0.pdf> at 25 August 2020.

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