Last week, new legislation was introduced to the Victorian Parliament to ensure that the State's Premier can pretty much do what he likes, including extending emergencies for three months at a time - a dramatic change from the standard 14 days. Premier Daniel Andrews said the new laws were drafted to reflect the lessons learnt during the COVID-19 pandemic.
Let's take a look at what those lessons may have been.
Victorian opposition leader Matthew Guy has called the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 aptly dubbed the Permanent Pandemic Bill as "the most extreme" pandemic legislation of any state or territory in Australia. My Guy said: "[p]lacing so much power in the hands of one person … would be unprecedented".
The current state of emergency extension which has been in place for 21 months in Victoria is due to expire on December 15. Instead of experiencing freedom once again, Victorians may find themselves in lockdown once again based on a potential pandemic. This new Bill will allow the harshest measures for the longest periods ever - anywhere.
Under the new laws, the Health Minister of Victoria, The Hon. Martin Foley would sign off on Public Health Orders, rather than the Chief Health Officer, providing the Health Minister with "broad powers" to make orders where reasonably necessary to protect public health.
The problem with this is: measures such as lockdowns, mask-wearing, mandates and other emergency management measures which are violations of our personal freedoms can all be decided by one person, without parliamentary due process, without the required political and legal consultation of the finer details with colleagues or professionals of the impacts of such measures: resulting in less checks and balances for decision making.
The Chief Health Medical Officer who would usually advise on, and sign off on the health directions and Orders based on his medical background and knowledge, will no longer be a required step by the Health Minister. The Health Minister is an elected member of Parliament and may not have any knowledge or expertise in their political portfolio.
In Victoria's case, for example, the Health Minister for Victoria has a background as a Union Official. How does this qualify him to make State-based health decisions resulting in orders and directions which affect people's every day economic and social lives based on 'health' advice?
The benefit of having a Chief Health Medical Officer (CHMO) is not only that they are an expert in the required area, but that Professor Brett Sutton in Victoria as the CHMO for example is also somewhat removed from the parliamentary process as a public servant and therefore part of the Executive, rather than the legislature.
Here, we see another erosion of not only the separation of powers, but also of the rule of law, insofar as laws often afford checks and balances that apply to our leaders to ensure that they do not operate beyond, or above the law.
Amendments of concern include the shift in definition of 'pandemic disease'. Section 7 states: "For the purposes of the Act, an infectious disease is a disease of pandemic potential at a particular time if: (a) at that time,the infectious disease has the potential to give rise to a pandemic, but is not yet a pandemic disease, and (b)(i) before that time, the infectious disease was a pandemic disease".
The difficulty with this, is the definition of pandemic is so broad, that it includes a 'potential pandemic' and 'before' the infections disease becomes a pandemic. This is an entirely subjective measure, and the taking away of individual freedoms requires a more objective approach to measure what constitutes a 'pandemic'.
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