Law Institute Victoria response to Daniel Andrews Enabling Act
Thursday, 11 November 2021
The LIV has been working extensively with the relevant LIV legal policy sections, subject matter experts and has considered direct feedback from the broader membership to prepare this Position Paper on the Public Health and Wellbeing (Pandemic Management) Bill 2021 (‘the Bill’). As the peak body representing nearly 20,000 legal professionals in Victoria and with one of its core purposes to protect and foster the rule of law, the LIV plays a key role in providing independent and considered analysis of the framework, provisions and potential impact of new legislation to inform Members of Parliament, policy makers and the public. At no time is considered analysis more necessary than when Parliament is debating legislation that has the potential to affect the health, safety and rights of all Victorians in circumstances as urgent as curtailing the spread of a pandemic. Over the last 20 months, the LIV has been generally supportive of introducing measures that are appropriately tailored and proportionate to the risks presented by the pandemic but has always maintained that that power should not be unfettered. There is an opportunity now, as restrictions ease and vaccination targets are reached, to reflect on the measures taken to contain the COVID-19 pandemic, and to ensure that only the least restrictive means possible to achieve public health objectives are used to contain future outbreaks of infectious diseases of pandemic proportions. The Bill has been introduced at a time when the Victorian population is reaching its target vaccination rates, and we would question whether passing these powers so urgently in these circumstances is proportionate to the reduced risks currently posed by the pandemic. Rushed legislation is often compromised legislation. The LIV urges pause for law makers to further consider the potential impact of the proposed legislation, as it needs to be fit for the purpose of protecting our democracy, safeguarding members of the community, and be unable to be exploited by governments of unknown persuasions in the future. We summarise our views and recommendations about the Bill below, but we would urge you to read the Position Paper, which is here. We support the objectives of the bill The LIV supports the objectives of the Public Health and Wellbeing (Pandemic Management) Bill 2021 (‘the Bill’) but does not support the Bill in its current form. These objectives include:
We welcome the development of a legal framework in the Bill for emergency powers that better embeds the protections of Victorian Charter of Human Rights Responsibilities Act 2006 (Vic) (“the Charter”). However, the LIV is of the firm view that the Bill in its current form does not sufficiently protect the rights of Victorians. In a number of important ways, the Bill falls short of achieving its stated objectives, namely promoting transparency and accountability in relation to decisions made and actions taken. The Bill places a significant amount of power in the hands of the Premier and the Minister to declare a pandemic and to make pandemic orders, respectively. The LIV calls for independent oversight and scrutiny to ensure that legal ‘protections’ are justifiable, transparent and do not unduly limit human rights. Our concerns The position paper sets out the LIV’s specific concerns in relation to the Bill, which can be summarised as follows:
Our recommendations The LIV makes a number of recommendations for amendments to the Bill. A summary of these recommendations is provided in Appendix 1; the more significant of them being:
Regards, |
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