Re: Pandemic Management bill. Health and well-being Act 2021.
Reply #6 –
Bear in mind that the Bill has now been substantially re-written to gain the support of the crossbench. Apparently, it now has their support and will be passed in the Legislative Council - democracy at work
The major changes to the Bill are:
- Significant reductions in fines for breaching public health orders.
- A stronger threshold for declaring a pandemic (I thought that a WHO declaration would be the trigger but weren't they slow in responding to COVID?).
- Strengthened human right protections.
- The right to protest to be enshrined in regulation.
- Guaranteed resourcing for an independent oversight committee.
- Faster publication of public health advice (within seven days of a pandemic order being made, down from 14).
- Clarifying that pandemic orders targeted on the basis of personal attributes must be relevant to the public health risk.
Reactions to those changes are mixed:
- Ombudsman, Deborah Glass, wants a budget increase so that she can effectively scrutinise the operation of the Act (if passed).
- The Victorian Bar and Law Institute remain concerned about effective oversight and control.
- The Australian Industry Group is concerned by the powers vested in authorised officers, or bureaucrats.
- The Human Rights Legal Centre backed the amendments as "the sorts of safeguards that ultimately help government make better decisions and also help build and maintain public trust in those decisions."
Finally, public law specialist, Prof William Partlett from the University of Melbourne, said:
... Victoria's new bill in many ways might "set a model" for the reforms he expects will be made in jurisdictions across the globe.
"This is a debate that's happening across the world; Victoria's one of the first jurisdictions to be doing this," he told ABC Radio Melbourne.
With that caveat noted, he believed the bill was "an improvement on what exists in New South Wales", where the Act is around 11 years old.
The Victorian government has noted the current NSW laws have more relaxed triggers for invoking emergency powers, and fewer limits on the length of a declaration compared to the new Victorian bill.
"I fully expect and would hope New South Wales would redraft and create their own fit-for-purpose law, taking into account a lot of what they've learnt," Dr Partlett said.
Dr Partlett said the Victorian bill had some "real innovations", including the "excellent" privacy protections around contact-tracing information, more transparency on health advice and clear responsibility held by the health minister of the day.
"I think every state in Australia is going to have to redraft ... and that's why this is such a significant piece of legislation for Australia, because Victoria is largely going to set a model," he said.
But he agreed with those calling for a more rigorous oversight system, as well as an overall review of the law's effectiveness after 18 months.
"We want to try and get some independent review ... to ensure that these powers don't get misused," he said.
"I mean, I think it's unlikely that they would be, but we need to have those protections in place."
It seems to me that the Bill is a much-needed improvement over the current out-dated Act but lacks necessary safeguards. Prof Partlett and other eminent public law specialists have called for the creation of a specialised cross-party parliamentary committee that would immediately start operating when a pandemic declaration is put into effect. This appears to be emerging global best practice and already exists at Federal level with the Senate Select Committee on COVID-19. New Zealand has a cross-party Epidemic Response Committee.
To me, this is where our Federal system fails us. Surely National Cabinet should be able to develop parameters for consistent legislation when national issues like pandemics are concerned. I get that the States and Territories are different and may require nuanced responses to suit their particular circumstances, but it shouldn't be too hard to come up with a set of minimum requirements to apply in all jurisdictions.