‘Anti-democratic’ Victoria needs new legal approach in the wake of Covid-19

The real problem is this state’s legal framework for dealing with Covid-19. It is an anti-democratic blight that is destined to cause more problems than it solves – assuming, if course, it is not struck down as unconstitutional.

If there is one lesson from last year’s civil unrest in Melbourne, it is this: laws that purport to hand unaccountable power to a government and its officials risk being rejected as illegitimate.

At a time when infection control should be the top priority, governments that inflame mass protest movements with legislative overreach are helping nobody.

Yet that is again on the cards once health officials start using the worst of the powers handed to them last year by the state Public Health and Wellbeing Amendment (Pandemic Management) Act.

It is simply wrong to assert that this scheme’s excesses were eliminated by last-minute amendments. Analysis of the scheme that has just been made public shows Victorians are at risk of ­indefinite detention on the orders of government officials, not the courts.

That analysis, by the Institute of Public Affairs, argues that detention orders made under the Public Health and Wellbeing legislation would breach the separation of powers by handing bureaucrats powers that are fundamentally judicial.

Because of that, the IPA research report says those powers are vulnerable to being struck down by the High Court.

The IPA found:

● The duration of detention orders under the Public Health and Wellbeing Amendment is at the discretion of officials from the executive branch of government.

● The immediate power to review a detention order is exercised not by a court but by another official of the executive branch of government.

This research report, Powers of Detention in Victorian Pandemic Legislation, has been compiled by Morgan Begg, director of the IPA’s legal rights project.

He writes that the detention powers are not only arbitrary, but are inconsistent with Victoria’s human rights legislation and the ancient common law right of habeas corpus – in which courts can order officials to produce detained people in court so the validity of their detention can be determined.

There is, of course, a clear need for effective laws to protect public health. But this can be done without resorting to arbitrary rule and diminishing the role of the judiciary as an independent check on the power of detention.

The object of this exercise should be to encourage public confidence in health orders. But by diminishing independent oversight, this scheme plays into the hands of conspiracy theorists.

The Public Health and Wellbeing legislation is a wasted opportunity. Instead of treating the courts like a form of window dressing, a government committed to democratic norms would have made judicial oversight of detention orders the core of its scheme.

Victoria is heading into the next wave of the pandemic with legal infrastructure that is bound to cause more trouble. It looks backward to a time of arbitrary rule by an unaccountable elite that had not yet been brought to heel by parliament.

As Begg writes, parliaments are failing to understand that the foundational values of the rule of law may take centuries to learn but they can quickly be forgotten if they are not defended.

An authorised health official in this state can order the detention of people throughout the period of a pandemic declaration, which can be made and extended indefinitely by the premier.

Officials do not need to apply to a court for a warrant or court order. All that is necessary is for the official to believe it is reasonably necessary to detain someone to eliminate or reduce a serious risk to public health.

There is no right to speak to a lawyer. Requests to communicate will only be granted if the official who ordered the detention considers this to be reasonable.

Victoria’s Charter of Rights says people detained by the state must be promptly brought before a court. But the IPA’s report says the appeal process under the Public Health and Wellbeing legislation is a convoluted, time-consuming procedure conducted by government officials.

Those under detention would have little meaningful opportunity to participate and challenge their detention.

And while there is technically no provision in the detention powers that would suspend the right to review or appeal a detention decision in a court, Begg argues judicial review of a detention order would be ineffective. A judge hearing such a challenge would be reviewing the application of statutory powers that are so broad the outcome of any application would be effectively predetermined.

This criticism of the scheme is in line with the assessment of prominent legal academics Augusto Zimmermann and Gabriels Moens in their book Emergency Powers, Covid-19 Restrictions and Mandatory Vaccination – a Rule-of-Law Perspective.

They write that the Public Health and Wellbeing Amendment is an unparalleled power grab and “an odious attempt at denigrating Australia’s democratic institutions”.

Zimmermann and Moens make the point that when this scheme was before parliament it was not surprising that demonstrations against the Bill turned violent.

That unrest was in response to the mere threat of government overreach. What will happen when the next wave hits and bureaucrats actually start detaining people without effective oversight by the courts? This law is screaming out for a High Court challenge.