Victoria’s retrospective pandemic laws expose problems in Charter of Rights

This state’s experience might help policymakers elsewhere avoid the same fate.

One of Victoria’s worst mistakes was closing the border with NSW in a way that stranded thousands of Victorians interstate at the height of the pandemic.

People entered NSW under one set of rules and found themselves unable to go home after those rules were changed retrospectively.

State Ombudsman Deborah Glass has produced a devastating report on this incident that amounts to a compelling argument in favour of two of the key doctrines that underpin the rule of law: the first is that retrospective laws, of the kind used to close Victoria’s border, should be avoided.

The second principle is that the content of the law should be certain so ordinary people know where they stand and can conduct themselves accordingly.

Vague laws hand arbitrary power to bureaucrats.

On July 23 when the government of Dan Andrews changed health orders retrospectively with effect from July 9 it breached both of those principles.

Those failings are outlined in the Ombudsman’s December 7 report, which calls for ex gratia payments for those who were locked out of the state, treated unjustly or fined after health officials were unable to provide certainty about whether they could lawfully cross the border.

There were multiple failings. The intentional removal of parliamentary oversight played a role, as did the influence of a flawed provision in the state’s Charter of Rights and Responsibilities.

Normally, the parliamentary Scrutiny of Acts and Regulations Committee is responsible for reporting to parliament whenever it considers that a legislative instrument has retrospective effect or is incompatible with the Charter of Rights.

But in January, the Andrews government introduced rule changes that meant the SARC process no longer applied to directions issued under the Public Health and Wellbeing Act.

This entrenched a democratic deficit and meant the Andrews government deprived itself of a mechanism that might have drawn attention to the risk that retrospective rule changes could disadvantage Victorians who were already in NSW.

Even now, after the Ombudsman provided state health officials with a draft of her report, those officials do not seem to understand the problem associated with retrospective lawmaking.

On November 25, the Department of Health wrote to the Ombudsman stating that the retrospective effect of the rule change “was appropriate in the circumstances”. The chief health officer had consider the relevant legislation and rights under the Charter of Rights and Responsibilities, the letter says.

That introduces another problem. One of the other factors that contributed to this affair was the influence of the Charter of Rights.

If Victorians can be locked out of their state by officials who drew guidance from the Charter there is one obvious conclusion: section 12 of the Charter, headed “Freedom of movement”, is mere window dressing.

This should be clear from the fact that the Ombudsman’s report calls for a small but vital change to this provision.

If enacted, her proposal would remove a three-word qualification that means the charter’s guarantee of freedom of movement applies only to those who are “lawfully within Victoria”.

That qualification, which has been copied from the International Covenant on Civil and Political Rights, is appropriate for nation states that have an inherent responsibility for border control.

But when applied to sub-national governments, such as the states of Australia, it sends a message to lawmakers and government officials that is decidedly odd when compared to the plain words of the Australian Constitution.

The Constitution says trade commerce and intercourse among the states shall be absolutely free.

The blame for watering down the Constitution’s guarantee of freedom of movement rests entirely with successive High Court judges, not the plain words of the document that was approved at federation.

The problem with the charter is the reverse. It is the plain words of that document, not a judicial gloss, that recognises governments have the right to prevent people from being present in their own state.

The health orders declared them to be “prohibited persons”.

As currently worded, section 12 of the charter says: “Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.”

The only positive aspect of this affair is that it has revealed more about this part of the charter. It bolsters the power of government and denies Victorians the same unqualified guarantee of freedom of movement that appears in the ACT Human Rights Act.

This runs counter to the ideas that transformed this country from a collection of separate colonies and provided the intellectual framework for a new nation. But that’s not the worst of it. Exactly the same qualification to freedom of movement appears in section 19 of the Queensland Human Rights Act – which might help explain why these two states imposed such tough border controls.

The Queensland provision, just like its Victorian counterpart, does not guarantee freedom of movement for everyone – only to those “lawfully within Queensland”.

The purpose of these charters is not to prevail over governments, but to influence their conduct. The charter rights in both states can be limited when governments or officials believe this is demonstrably justified.

Yet what sort of influence are these charters having? Are human rights better protected? The pandemic has provided a stress test and the results are not pretty.