Explainer: Protecting human rights and democracy in Victoria’s pandemic laws
The COVID-19 pandemic has required governments around the world to make difficult and high-stakes decisions. Most states across Australia have declared a state of emergency, giving governments and health officials broad powers to limit individual rights and freedoms in order to protect public health.
The Victorian Government first declared a state of emergency on 16 March 2020 (under the Public Health and Wellbeing Act), enabling the Chief Health Officer to impose a wide range of public health directions which they believe are reasonably necessary to protect public health, and to give ‘authorised officers’ a range of powers to enforce those health directions.
Victoria’s public health legislation initially provided that a state of emergency could not be extended beyond 6 months. However, the Victorian Parliament approved amendments allowing the emergency declaration in response to the COVID-19 pandemic to be extended up to 21 months.
With the current state of emergency set to expire on 16 December 2021, the Victorian Government has said that it will now develop a new pandemic law to replace the emergency powers scheme. This new law would apply to the current and any future pandemics.
What should this new pandemic legislation look like?
Human rights principles of necessity, proportionality and least restriction should guide government decision-making through this and future pandemics. Democracy – in the form of transparency, oversight and accountability – also needs to step up, not shut down, in times of crisis in order to build and maintain public trust.
It is therefore vital that new pandemic legislation incorporates strong human rights and democracy safeguards.
At a high level, Victoria’s new pandemic legislation should ensure:
Parliamentary scrutiny of government’s pandemic response: Dedicated cross-party parliamentary oversight committees, across Australia and internationally, have provided much needed scrutiny and accountability of governments’ pandemic responses and their use of emergency powers. Committee processes have given business, civil society and individuals a meaningful opportunity to provide information and feedback to help inform government decision-making. A dedicated parliamentary oversight committee should be established whenever pandemic powers are enlivened.
Independent review of all public health directions: Extraordinary powers require commensurate oversight and accountability. There should be an independent body or panel, with human rights and public health expertise, to independently review and publicly report on the necessity and proportionality of all public health orders made during a pandemic.
Transparency of human rights compatibility assessments: In Victoria, public health officials are legally required to properly consider and act compatibly with human rights when carrying out their duties and exercising their powers. Timely transparency around the public health and human rights justification for pandemic measures will benefit public policy and public confidence.
Detention review rights: Any person deprived of their liberty – in a pandemic or otherwise – should be able to seek review of their detention. This includes people locked down in housing towers. People currently detained in Victoria under public health orders can seek review by a Detention Review Officer (DRO), but the DRO is only empowered to affirm the person’s detention or make a non-binding recommendation to the Chief Health Officer. This process needs to be replaced with a legally binding and accessible right to seek merits review by a competent body, such as VCAT, as was recommended by the Victorian Ombudsman after reviewing the lockdown of public housing towers in 2020.
Safe protests are allowed: Democracy doesn’t stop in a pandemic, and a health crisis may also coincide with other profoundly important national and international events. We saw this last year when COVID-19 restrictions were in force at the height of a global reckoning on systemic racism and state violence. It should not be an offence to leave home for the purpose of a protest that is otherwise compatible with public health directions. There should be a fair and accessible process for working with authorities to facilitate pandemic-safe protest actions.
Stronger safeguards around police powers: The granting of powers to police under emergency response laws carries acute risks for over-policed groups, such as Aboriginal and Torres Strait Islander peoples and communities of colour. There must be transparency and accountability in the exercise of police powers, including the collection, reporting and independent analysis of enforcement data and independent investigation of police complaints. PSOs should not be turned into de facto police, for example through the granting of expanded powers or areas of operation given their lack of appropriate training. Any additional powers given to police must be removed once the pandemic is over. See further our Explainer on policing and COVID-19.
Punitive enforcement measures should be a last resort: achieving compliance with pandemic rules should focus on community engagement and collaboration, addressing information barriers and providing support to vulnerable groups The objects of the law should reflect this. Members of marginalised communities should not be targeted by police or fined.
Reducing the risks of super-spreading events behind bars: given the health vulnerabilities of children and adults behind bars and super-spreading potential of those closed environments, pandemic legislation should include a trigger that requires steps to be taken to reduce the numbers of people in prisons. For example, making bail more available and granting leave, early release or parole to those whose health is most at risk and who are of low safety risk to the community. Pandemic legislation should also prohibit the use of solitary confinement, whatever it is labelled. See further our Explainer on COVID-19 and prisons.
Protection of data: While the collection of check-in data through QR Codes and other sources have assisted public health officials to improve the efficiency and effectiveness of contact tracing to manage COVID-19 outbreaks, it is important that check-in and contact tracing data is only used for that purpose and only accessible by public health officials.
This Explainer outlines the high level principles that should guide the development of any new legislation designed to replace the emergency powers in Victoria’s Public Health and Wellbeing Act. There are many other steps that the Victorian and other governments need to take to protect people’s human rights during the COVID-19 pandemic. For more detail, see our other COVID-19-related explainers.
This explainer is not legal advice
The contents of this publication do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as legal advice. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.