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Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021

Nov 16, 2021 | News, Parliament

Mr BARTON (Eastern Metropolitan) (16:49): I rise to speak on the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021. I will not be supporting this bill today because I have a different view to the government and others. Everybody in this place has a right to a view, and I would just like to address firstly the appalling, the disgusting and the vile threats made against my friends and colleagues because they have expressed a different view. Everyone in this place should denounce this behaviour.

It has been reported that the government decided that those who voted against the previous state of emergency (SOE) declarations were not to be given a seat at the table for the drafting of this pandemic legislation. I was certainly not contacted to gauge the opinion of my constituents or my stakeholders. This sounds a little precious to me. I say to the government, and it is not the first time: you do not have to act on what I say but you should at least give me the professional courtesy of listening. My constituents and the tens of thousands of people who have contacted my office in the last two years have been denied a voice. They have a right to be heard.

The price the Victorian people have paid is immense. We have had over 1000 people die here in Victoria. The financial impact of COVID-19 will be felt for another decade. Enormous harm has been done to the mental health of many Victorians, and tens of thousands of families are feeling disenfranchised. For the past 18 months Victorians have suffered. To say otherwise would be denying an absolute truth. This is not the time for using a big stick for compliance. This is the time for a light touch. This is a time for healing.

I have not been convinced by the government that this bill is needed right now. We are coming out of this pandemic. This bill is not the be-all and end-all. I do not accept the urgency. In fact I think the Law Institute of Victoria suggests that we let the SOE lapse and work through this bill and get a result.

Dr Bach: Extremists.

Mr BARTON: They are. The bill specifically allows for pandemic declarations to be made even if the rate of community transmission of the disease in Victoria is low and, I quote:

there have been no cases of the disease in Victoria for a period of time.

What is a ‘period of time’? A week? A month? A year? This is a conveniently broad definition, and I believe there should be limiting factors at play here. It is feasible that a pandemic declaration could only be made if there have been cases in Australia in the past one or two months. To have this completely open-ended leaves us having to rely on faith that future leaders will not exploit this vague legislation. This is not good enough.

New section 165AB provides that a pandemic declaration can be made even when the pandemic disease or a disease of pandemic potential is not present in Victoria. It appears that there are almost no requirements for a pandemic declaration to be made. This would not be so worrying if it were not for the fact that the pandemic declaration provides the Minister for Health with unlimited power to introduce any pandemic order they see necessary. New section 165A outlines the pandemic orders, but it makes a non-exhaustive list, essentially enabling the minister to introduce any action that they see fit as a pandemic order. This is far too broad.

It is my view that we know the measures that must be taken in a pandemic; we have just lived through one for 18 months. These health measures should be identified clearly in the legislation and not be left open-ended for any action to be justified by a pandemic declaration—a declaration, I may remind you, that also does not need to meet any requirements or standards to be introduced. If the government want to expand the list of defined pandemic orders, they should have to bring this to Parliament, where those elected by Victoria can determine if the pandemic order is relevant, is an acceptable use of power and balances human rights. Anything less opens up the possibility for any excessive measure to be taken in the name of the pandemic.

Victorians have done everything this government has asked of them. They got vaccinated, they made sacrifices and they did it for our community.

Victoria is now shooting towards a 90 per cent double-vaccination rate. Six months ago this was merely a dream. Victorians do need hope. In my view we need an independent oversight such as a former judge who would thoroughly investigate what Victorians need in terms of emergency powers, what we have done previously and what we can do better in the future.




Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021.

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Looking at this bill today there is work to be done. No wonder the government has rushed this through, choosing only to consult and negotiate with three of my colleagues. I am almost glad that they ignored me, because I would not want to hang my hat on this one. It is not a comfort to know that key stakeholders, industries and organisations were also not consulted on the creation of this bill. It is disappointing. We can see it all over this bill—a disregard for the price Victorians have paid these past two years. The government should only be doing what is absolutely necessary to ensure the health and safety of our community. That is their role, and that is what they have been elected to do.

There has been much said on both sides about the publishing of the health advice. Sections 165AG, 165AP and 165AQ outline requirements for the government to table pandemic declaration reports, pandemic orders, chief health officer advice and documents relating to the pandemic order. If you read to the last clause in each of these sections, you will realise that this is mere virtue signalling. If the government fails to table these reports, documents and advice or just chooses not to, the pandemic declaration remains in place, as do any of the pandemic orders that come with it. The check and balance chosen here, if you can call it that, is that the Scrutiny of Acts and Regulations Committee may report on this failure to report and move to disallow the pandemic declaration. The Victorian public are not stupid, and we should not be treating them as such. We know these committees more often than not have a government majority and are chaired by the government. In the laws of probability answer me this: why would a committee dominated by the government vote to disallow a pandemic declaration made by the government? This is no check or balance.

Last year my crossbench colleagues and I were successful in limiting areas of overreach in the COVID-19 Omnibus (Emergency Measures) Act 2020. Specifically we had human rights concerns over who could become an authorised officer and enforce pandemic measures. When a pandemic declaration is in force the secretary can appoint anyone to be an authorised officer as long as the secretary considers that person appropriate based on their skills, attributes or experience. Could this be any broader? I am absolutely against creating a second-tier police force. This bill creates the possibility of having authorised officers who are unqualified, are untrained and have no experience in ordering, detaining, arresting and searching those suspected of undermining a pandemic order. We know that specific cohorts of vulnerable Victorians, such as First Nations people, are already overpoliced. Unfortunately these authorised officers are also provided with immunity from any actions if they are based on the reasonable belief that the act or omission was in exercise of a pandemic order. Who will be held accountable for any misuse of power by these authorised officers? I see no complaints-handling mechanism in this bill. I would like to see an independent statutory agency given the responsibility to review the application of a pandemic order to individual circumstances. There must be stronger checks and balances.

Now, onto the pandemic management advisory committee, this has been held up as a vehicle for transparency and accountability. Well, you only have to look at the title to see it has absolutely no power to hold the Minister for Health to account. My first concern is that the health minister chooses who will be members of that committee and the terms and conditions of their appointment. This is far from being independent. My second concern is that the committee is only required to be established within 30 days of the first extension of the pandemic declaration. This means the committee may only be established months into a pandemic declaration. I would argue any meaningful accountability mechanism would be established from the outset. My third concern is that, while the chief health officer must be consulted on the appointment of a member to the committee, this is by no means a transparent process.

The chief health officer’s advice in respect to appointments is not required to be tabled or acted on.

My fourth and final concern is the committee is given no power. They are able to make non-binding recommendations to the minister via reports. This means nothing. Essentially the committee is hand-picked by the minister to provide non-binding advice to the minister, and this is meant to be a check and balance. I do not think so.

We need to remove the political angst from this debate. Many have played the political card, spreading misinformation and causing undue stress, fear and harm. An independent inquiry into the emergency powers during a pandemic is the most appropriate and fair avenue for this discussion to take place. It is not about blame; it is about acknowledging that not everything went as well as it could have or should have. Let us kick this bill out, let us do it properly and let us move forward with a bit of hope. I will finish up by saying this: I know what it is like to have your struggles, your experience and your opinions ignored. That is why I will not support this bill today.

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