CM – Victoria’s Pandemic Act: Better framework, but not flawless


The 2021 Public Health and Wellbeing Change (Pandemic Management) Act has been surrounded by controversy from its inception in the Victorian Parliament in October until its final approval by Parliament on December 2nd.

Aside from the Criticism from liberals and civil society organizations, it was also the target of rallies, which were mainly organized by anti-vaccination campaigners and attracted thousands of participants.

According to its rationale, the pandemic management bill is intended to “create a contemporary, functional regulatory framework for effective management of To facilitate pandemics, including the current COVID-19 pandemic. « 

It is a departure from previous general legislation enforced by the Public Health and Wellbeing Act 2008 (PHWA). So far, Victoria’s COVID-19 public health measures – including bans, quarantine and mask requirements – have had legal effect through the PHWA’s emergency powers.

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According to the existing PHWA, a health minister can declare a state of emergency. This activates various “emergency powers” ​​in accordance with Section 200 (1), whereby the Chief Health Officer (CHO) is able to issue orders that “are reasonably necessary to protect public health”.

The draft law changes the PHWA and offers a pandemic-specific approach to these emergency powers. This means that the Prime Minister must issue a “pandemic declaration” on the advice of the CHO. The resulting « pandemic orders » – which correspond to the current CHO orders – would be issued by the minister and not by the CHO.

The use of emergency powers becomes problematic if its use is arbitrary, too broad and with minimal accountability. Establishing a pandemic-specific framework within which these powers are exercised will limit the scope.

Support should also be given to conferring ultimate authority on pandemic orders to the Minister, not the CHO. Although somewhat symbolic, it affirms the principles of representative government.

A minister has a certain degree of democratic legitimacy through the government, which is accountable to an elected parliament and is formed within it. While the CHO has expertise in health policy – and continues to advise on the implementation of pandemic orders under the terms of the bill – it is more democratic when extraordinary powers are exercised with high consistency by an elected political representative rather than a government-appointed bureaucrat.

Politically and logistically there would likely be a realignment of the pandemic regulations towards a more balanced public order. The criticism of the existing PHWA regime often focused on the supposedly one-dimensional orientation of the CHO when placing orders, which was reflected in decisions such as the closure of playgrounds or the ban on alcohol at picnics.

The transfer of powers to the minister can lead to broader interest groups being consulted and sends a signal that pandemic orders are more political than bureaucratic decisions.

On the other strengths of the bill, which will be achieved as a result of negotiations with Crossbenchers to ensure its passage in the House of Lords includes provisions that make fines more financially progressive, improved transparency in health advice, and alignment of pandemic regulations with the Victoria Human Rights Charter and Accountability.

The NSW Council for Civil Liberties described the proposed bill as « a major improvement g compared to [the] currently applicable [scheme] ”. Human rights lawyer Hugh de Kretserhas said that while the bill was « not perfect » it would improve transparency and accountability, an opinion that is also confirmed by the Human Rights Center.

Although much criticism of the bill is misguided and bad is informed, this does not make him error-free.

The bill has several weaknesses when it comes to the examination of pandemic orders. It contains restrictions on Parliament’s ability to interact with the orders.

Instead of a parliamentary committee responsible for examining pandemic orders, the draft law establishes an independent Pandemic Management Advisory Committee (IPMAC). IPMAC will not consist of elected representatives; instead, hand-picked experts are involved in areas such as public health, law and human rights.

William Partlett of Melbourne Law School wrote in The Conversation that “the use of an appointed committee to oversee these powers is a problematic departure from the norm The role of parliamentary committees in overseeing the executive is « .

The creation of a » technical committee … is a good idea … but should not replace oversight with its own cross-party parliamentary committee « .

This is more worrying when considering that the draft law allows the minister to re-impose pandemic orders even if it is not approved (essentially repealed) by parliament. While the rejection of the bill to the CHO in favor of accountable representatives is a positive step, the exercise of ministerial power is still less conducive to parliamentary interference.

Although there may be concerns that MPs have power over decisions on public action Health politicized, the reality is that such decisions are inherently political, with greater democratic participation and accountability conducive to greater democratic participation and accountability.

The Victoria Ombudsman has also raised concerns about enforcement of detention orders, given criticism of the Bill is not limited to right-wing elements.

The cumbersome use of pandemic restrictions over the past two years, including the police-backed response from state governments, has raised understandable fears of government transgression.

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