By Dr Catherine Williams Director of Research at the Centre for Public Integrity. Originally published in the Age on October 29 2021.
The Victorian government’s new pandemic legislation was this week released – accidentally, initially – to a largely hostile reception. This appears at least in part to have been the result of the secrecy surrounding it, and its predicted rapid passage through the Legislative Assembly: it is, after all, a complex piece of law that is of enormous significance for all Victorians.
One common refrain has been that the bill does not provide for scrutiny or oversight. Victorians may be surprised to learn that none of the many public health directions which have imposed significant restrictions on their fundamental rights and liberties over the past 20 months have, to date, been scrutinised by the Victorian Parliament’s Scrutiny of Acts and Regulations Committee (SARC).
They may be even more surprised to learn that currently, these directions are not disallowable by the Parliament. This situation, while initially a consequence of the government’s failure – or refusal – to treat the directions as legislative instruments under the Subordinate Legislation Act (in spite of there being an overwhelmingly compelling case for doing so), has been consistent with Victorian law since at least December 22, 2020.
While there are significant improvements to be made in respect of the new bill’s scrutiny provisions, it is not correct to describe it as failing to provide for scrutiny or oversight.
The bill makes critically important and welcome changes to the current legislative framework in relation to scrutiny and transparency: for example, pandemic declarations and pandemic orders (the equivalent of what we know as public health directions) will now be required to be tabled in the Parliament, together with other key information including advice from the Chief Health Officer.
The SARC will have the power to report to the Parliament on the orders, triggering the disallowance and suspension processes: disallowance is a key parliamentary oversight mechanism and the fact that it will apply to pandemic orders is inarguably an improvement on the current situation.
The information provision requirements that the bill establishes in relation to both pandemic declarations and pandemic orders are welcome, insofar as they are essential to facilitating scrutiny: after all, how is the Parliament to perform its scrutiny function if it doesn’t have access to sufficient information?
However, currently the bill imposes no consequences for failure by the minister to comply with these provisions. Indeed, it specifically states that the validity of a declaration or order is not affected by failure to comply with the information provision requirements. This is a serious deficiency that must be remedied if these requirements are to be meaningful.
It is also important that the jurisdiction of the SARC to report to the Parliament does not depend upon government compliance with requirements to gazette or table pandemic orders and associated information: without this modification, it would effectively be possible for the government to avoid enlivening the SARC’s jurisdiction (and the concomitant possibility of disallowance of a pandemic order) by failing to comply – and this might not be an unattractive option, when failure carries no consequence for an order’s validity.Loading
The addition of an Independent Pandemic Management Advisory Committee of experts to the framework is potentially valuable (notwithstanding that its recommendations are to be non-binding), as long as it has appropriate powers and resources to fulfil its functions.
The processes surrounding the minister’s appointments to this committee need to be transparent (for example, the Chief Health Officer’s advice in respect of appointments should be required to be tabled), and any advice – not merely reports – provided by the committee to the minister should similarly be subject to a tabling requirement.
The critical, missing piece of the puzzle is an independent statutory agency to oversee the exercise of executive emergency powers.
The Ombudsman, for example, could be empowered to undertake various review functions – including, vitally, merits review of the application of pandemic orders to an individual’s circumstances. There is little doubt that those of us who have come up against the public health directions over the course of the past 20 months might draw comfort from the existence of such a review jurisdiction.Loading
Despite the fact that the bill falls short of being an exemplar (among other things, it appears to enable the Premier to make rolling pandemic declarations for an unlimited period, and the minister to detain people for as long as the minister considers “reasonably necessary”), the fact that it improves on current arrangements in respect of scrutiny and oversight is reason for optimism.
While there remains substantial work to be done, the consultation in which the government is now engaging presents a real opportunity to do that work, and produce a piece of legislation which may hold Victoria in better stead in (perish the thought) future pandemics.