An Expression of Contempt for the Electorate

What is the nation to make of the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021? It was introduced in the Victorian Legislative Assembly as a matter of urgency on October 26, 2021, debated (in a fashion) that day and the next, and then further debated, passed and transmitted to the Victorian Legislative Council on October 28.

If enacted, the Bill’s central provision is the insertion of a new Part 8A (a mere 68 pages) which with further provisions will authorize the Premier, at any time on or after the declaration of a pandemic, to make a pandemic order on the basis of belief that it is reasonably necessary to do so to protect public health.

Among the many consequences of the making of a pandemic order is that, at the Premier’s command, any individual in Victoria will be at risk of being detained, having his or her movements restricted, and being moved from place to place. The Premier will have power to prohibit gatherings, whether public or private, in a pandemic management area. The Premier will also have power to compel the provision of information (including about the identity of any person) and documents or to require the keeping of records, and any individual will risk detention for a refusal or failure to undergo a medical examination or a medical test. The proposed new regime can be extended for as long as the Premier forms the requisite state of mind and infringements of it attract extremely harsh penalties.

It seems an odds-on certainty that very few Victorians will have read (or are ever likely to read) the Statement of Compatibility with the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter) prepared in accordance with section 28 of the Charter and which was tabled in the Legislative Assembly on 26 October immediately prior to the introduction of the Pandemic Management Bill.

If its website is a reliable guide, the the Victorian Equal Opportunities and Human Rights Commission appears so far not to have expressed any concerns about the scope of the Bill. The likely explanation (or part of it) is the little-noticed fact that a pandemic order may apply to, differentiate between or vary in its application to persons or classes of person identified by their characteristics, or by an “attribute” not limited to the meaning of that discriminatory measure as used in the Victorian Equal Opportunity Act 2010. Nowadays, in the context of identity politics ideology, the word “privilege” is a term of abuse. However, in substance, if the Bill passes into law its treatment of persons by reason of attributes and characteristics will be capable of operating in a manner inconsistent with the rule of law.

If, as its supporters must assert, the Bill as passed unamended in the lower house is fully compatible with the Charter, Victorians will be entitled to conclude that the Charter is worse than useless.

The  enactment of the Charter was greeted with hosannas by the Australian human rights establishment – that collection of government agencies and private, commercial, professional, academic and other institutions which regard Australia’s lack of a national Bill of Rights as a matter of unique enduring national shame. That stance reflects a commitment to the view that human rights are, first and foremost, a creation of post-World War II international treaty-making. The predominant internationalist approach of the Charter is notable for its emphasis on the rights of groups or “communities”. The Bill makes a formulaic and grudging passing mention of the extensive, detailed protection of individual rights which has evolved in Australian domestic common law and legislation in a direct line from the Magna Carta (1215).

Part 2 of the Charter (sections 7-27) sets out the human rights that the Victorian Parliament specifically sought to protect and promote. Section 7(2) provides as follows:

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.”

One useful background example of the application of the Charter to decision-making during the COVID pandemic is the decision on November 2, 2020, of Justice Timothy Ginnane of the Supreme Court of Victoria in Loielo v Giles, an unsuccessful challenge by a restaurant owner to the legality of the curfew imposed on parts Victoria on September 13, 2020. In the second paragraph of his judgment, Justice Ginnane said this:

The Curfew was a major restriction of human rights and liberties of the free people of Victoria. No instance of a curfew being imposed in Victoria by the Executive exists in living memory. Curfews are normally imposed to control civil disturbances and widespread outbreaks of lawlessness.

It was unclear why the Chief Health Officer (CHO) did not make the directions. Furthermore, the Department organizational structure concerned with exercising the emergency powers was unclear, no document could be produced explaining it, and the role of officials such as Public Health Commander was not explained. However, Justice Ginnane was not convinced on the evidence that the plaintiff had proved that the imposition of the Curfew by an authorized officer under the Public Health and Wellbeing Act 2006 was in truth one unlawfully dictated by the Premier.

Some Victorians might take the view that times have changed for the worse given that the Minister for Health also tabled his Second Reading speech on the Bill. Given its draconian nature, Victorians could be excused for taking the position that, if the case for urgent passage of the Bill unammended was so manifestly clear, the Minister for Health would have leapt at the opportunity to read the speech as a demonstration of the strength of the government’s case. It is not in the least surprising that the legal profession was quick to condemn the Bill. The Victorian Bar has been at the forefront of complaints. The then chairman of the Bar Council, Christopher Blanden, QC used the word “Stasi” to attract public and media attention to the manifold deficiencies of the Bill. 

The Law Institute of Victoria, on behalf of the State’s 20,000 solicitors, expressed support for the objectives of the Bill, but otherwise opposes its authoritarian “transfer of the decision-making power from the unelected CHO to the Premier”. The central decision-making powers need to be in the hands of elected representatives accountable and responsible to Parliament and the public. The government asserts that the Bill was the product of extensive “consultation” over a lengthy period, and it is clear enough that it was not something dashed off overnight. But what does “consultation” mean in reality, especially when that mercurial modern neologism “stakeholders” is the measure.

The average cynical Victorian with an interest in active participation in our democratic institutions will understand that the word “consultation” is one of those words which is at the forefront of meaninglessness  manifested in the curse of abstractionitis, which George Orwell warned against in his magisterial essay, Politics and the English Language. Among other words from the postmodern ideological vocabulary used in the Minister’s statement are “accountability”, “at-risk/communities”, “diverse/diversity”, “engage”, “holistic”, “identity”, “inclusive”, “nuanced”, “oppressed”, “privilege”, “proactive”, “proportionate”, “respect/ful”, “resilience”, “safe”, “transparency”, “vulnerable”.

And what does “fit” mean, and for what specific “purpose”/and how about “equity”? Somewhere there is a lawyer who is responsible, directly or indirectly, for the addition of that old very subject-specific legal expression “fit for purpose” to the political vocabulary. And it’s a certainty that a lawyer was instrumental in the conscription and ensuing relentless use of that other specific technical legal word “equity” in the ghastly abstract ideological language of identity politics.

The government also insists there are ample safeguards against the misuse of the Premier’s power to make pandemic orders, but the alleged in-built review mechanisms are cast in terms that lack the necessary binding quality. In the context of the exercise of the detention power, the Bill genuflects at the altar of the ancient writ of Habeas Corpus. However, the power of detention is expressed in a way that is unlikely to mean the detention power will be found to be absent. Likewise with the claims about the supposed protection afforded by the role of the proposed Pandemic Management Advisory Committee.

At a time when the Westminster concept of personal ministerial responsibility to the Parliament seems to count for little, it is instructive that as a matter of the constitutional law of the State of Victoria, Justice Ginnane made the following telling observation: 

There can be legitimate debate about whether a public servant in Giles’ [the person authorised by law to impose the Curfew] position, who is not the Minister, the Department Secretary or the Chief Health Officer, should be exercising an emergency executive power that may close down much of the State. One argument would be that such a decision should be made by the Minister, who is responsible to Parliament and therefore to the public, acting on health and other relevant advice, including as to the effect of the Direction on the economic or social life of the State.

With the next Victorian election to be held in 2022, other ongoing heated political controversies directly affecting the Victorian government, and the Opposition in disarray, it is anybody’s guess what the electors will make, if anything, of the Bill and the substance and tone of the controversy it has provoked. The Pandemic Management Bill is an expression of contempt for the electorate of the State of Victoria and should be withdrawn.

The author is a practising member of the Victorian Bar

12 thoughts on “An Expression of Contempt for the Electorate

  • Peter OBrien says:

    One red flag was Andrews insistence, at a press interview today, that the checks and balances in the proposed bill are probably the most thorough in the world (or words to that effect). Eerily similar to his claim that Victoria’s lockdown measures were lighter than that of NSW. The latter claim was demonstrably false. I think we can assume the same for the former.

  • Ceres says:

    Victorian election 2022.
    Labor’s an expert at weasel waffling words, that signify nothing but obfuscation and so it is with this nasty Bill which is in the LC today with an urgent motion from the AG. With the 3 stooges on board it will pass and so everyone who then enters Victoria will do so at their own risk. The likelihood of an instant lockdown whenever D.Andrews feels like it, or a year in jail, or a proposed $10,000 fine (new amendment) for disobeying, are all distinct possibilities.
    Labor wears it all like a badge of honour. Shameful.

  • Adam J says:

    Liberty, personal responsibility, and modesty are all dead; the rule of law and constitutional government are drowning under the weight of neo-marxist gibberish.

    The author mentions the stasi. No-one under 30 knows what that is, but they know how to lobby their local MP for ‘climate action’.

    The protection of individual rights according to English law counts for nothing in the modern world, not even in England. As long as rights are subject to the authority of the parliament, which is by nature controlled by the government, then rights will never be more than government grants. Even people in England understood that, that’s why they have the Magna Carta and the English Bill of Rights.

    I used to oppose an Australian Bill of Rights because it was undemocratic and would be a leftist perversion of rights. But recent events have swayed me. All Australians should be entitled to certain protections and given the weakness of Scott Morrison and the dictatorship of Dan it’s futile to look to parliament to preserve them. And it’s plain negligent to let future generations run the risk of suffering what we have, possibly for worse.

    We are at a turning point in Australian history. We can’t afford to follow pie in the sky fantasies: either big government gets reined in with serious teeth or the rot will get deeper from here, and the longer it goes on the worse it will be everyone.

  • DougD says:

    Maher writes: “If, as its supporters must assert, the Bill as passed unamended in the lower house is fully compatible with the Charter, Victorians will be entitled to conclude that the Charter is worse than useless.”
    I reached that conclusion a while ago: I asked the Human Rights Commission to look into whether Victoria Police had breached the Charter right of Zoe Buhler not to be treated in a degrading way when they hand-cuffed her in front of her family, without justification in the situation recorded in the video that was made public. The response? The Commission has no power to investigate the police. So fire another volley of rubber bullets into anti-government protestors, fling an inoffensive citizen to the concrete in Southern Cross railway station, push an elderly woman protester to the road-way and then drench her with capsicum spray – the police constantly infringe the human rights solemnly conferred on Victorians -but who cares?

  • Adam J says:

    @ DougD:
    Well, we know who doesn’t care. Morrison and the federal Liberals.

  • Ian MacKenzie says:

    “the Victorian Equal Opportunities and Human Rights Commission appears so far not to have expressed any concerns about the scope of the Bill.” More evidence of the politicization of the Victorian public service. If such a law were proposed by a Coalition government (unlikely, but given the state of Victorian Liberals, possible), imagine the uproar. Would the VEQHRC remain silent? I very much doubt it. So add them to the corrupt and violent Vic Police, incompetent legal system, Marxist education department and unprepared Health system on the list of Dan’s compliant poodles. With such a leftwing civil service even a strong Coalition government would struggle to make an impact. The Victorian Libs wouldn’t even make a dent.

  • Lo says:

    After what has happened in NSW today, extension of emergency powers to 2023, I am becoming very scared. These are the remaining years of my life and there is nowhere to run to escape this insanity.

  • Rebekah Meredith says:

    A Bill of Rights, written now, almost for sure WOULD be contaminated with woke nonsense. But I am unsure why the author seems to consider bills of rights, in and of themselves, an invention of modern progressives. England has had a Bill of Rights since 1689, America since 1791. Both documents were an attempt to protect against tyrannical rulers, though under different systems of government. As Adam J points out, surely the Present Crisis has shown the need for one, here?
    Of course, it has to be added that no amount of legal protection will do any good if all branches of government choose to ignore them. This certainly seems to have been the case with what bills of rights are currently in existence.

  • pgang says:

    Lo, and Perrottet was held up as the shining beacon for Australia. Perhaps he’s showing his age (or lack of it). He’s either the biggest fool in politics or an outright bounder. Probably both, being a politician in this socialist era. Thankfully there are still some saner heads in the rank and file who tied him to a chair to stop this thing.

  • john2 says:

    For non-readers of TheOz, is the following report the last straw, or is there still a haystack to come? From today’s online TheOz:
    “‘Light shines in darkness’: Andrews’ wife speaks out
    Daniel Andrews’s wife Cath has spoken out about violent protests which erupted on the steps of the Victorian Parliament in recent days over the state’s proposed pandemic laws, which saw “freedom” protesters make threats to her husband’s safety.
    Disturbing images have emerged which portrayed a blow-up replica of the Victorian Premier on makeshift gallows with nooses as well as threatening comments and chants made towards Mr Andrews.
    One protester said into a megaphone and understood to be directed at Mr Andrews: “I look forward to the day I get to see you dance on the end of a rope.”
    Ms Andrews took to Twitter to thank all her followers for the support, and reaffirmed her position to “Stand With Dan”.
    “We have received so many beautiful messages today from all over,” she wrote.
    “Thank you. We are reminded that the light shines in the darkness and the darkness will not overcome it. As ever #IStandWithDan #GoHigh””
    The full force of this travesty may become apparent if I provide some context: This report comes after two successive weekends of mass protests (in the tens of thousands) against the Andrews pandemic superpowers bill. These protests were peaceful and the protestors overwhelmingly ordinary punters and families. And here is the most important part: TheOz reported precisely nil on these protests. Despite their size, nature and importance, if your sole source of news was TheOz, they simply didn’t happen. And now the above article pops up, characterising protestors as violent, ugly extremists. And now we have the final, sinister irony of misquotations of holy scripture by Andrews’ wife, in the service of beatifying her husband and demonising his opponents. This serves to demonstrate not only the Evil that is the Andrews Machine, but also how diabolically clever it is in using its power to increase its power.
    Two things are now abundantly clear: 1. If the Andrews machine is not stopped, Victoria will inevitably descend into a totalitarian state (pun intended). The only question is to what depth and how quickly. And, 2. TheOz is complicit. It has utterly failed in its Fourth Estate role. Welcome, TheOz, to the Andrews’ State.

  • john2 says:

    PS: For the avoidance of doubt – none of my above comments are intended to endorse, excuse or minimise the gallows and threats made against Andrews in the protests over the last 24 hours. My comments relate to the demagogue’s oldest-trick-in-the-book of deliberately conflating the unacceptable actions of a few with the vast majority of largely peaceful protesters who have been making their point legitimately, and The Australian newspaper’s highly selective reporting of the former while completely ignoring the latter.

  • Ian MacKenzie says:

    Looks like Adem Somyurek may kill the bill. If so the irony of Dan’s branch-staking rival getting in one last win must be exquisite. Seems like karma to me.

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