PUBLIC HEALTH AND WELLBEING AMENDMENT (PANDEMIC MANAGEMENT) BILL 2021



I rise to oppose the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021.


For the last 18 months we have been involved with a global pandemic, but over the last 18 months one of the most extreme responses we have seen to that pandemic anywhere in the world has been here in Victoria.


We have suffered through the longest lockdown in the world. We have seen our citizens locked in their houses for 23 hours a day. We have had a curfew imposed, one of the few cities in the world with a curfew—no justification, and unjustifiable. We had parts of Victoria where the closest COVID case was hundreds of kilometres away locked down for 23 hours a day. We had children banned from playgrounds, as Mrs McArthur said. We had people locked out of their workplaces, and they still are in many cases because we now have a two-tiered society thanks to this government. We had citizens arrested over Facebook posts. And we saw just last month rubber bullets and tear gas on the streets of Melbourne. If you had asked a year ago which city in the Southern Hemisphere would have rubber bullets and tear gas on its streets, not many people would have said Melbourne, but here we are. Lives have been destroyed, families have been destroyed, livelihoods have been destroyed, jobs and businesses have been lost, and for what?


The last lockdown we suffered in Melbourne, lockdown number six, was supposed to last seven days. It lasted for 11 weeks. When it started we had six cases a day; when it finished we had 2200 cases a day. That is what this government’s pandemic measures achieved—lock the city down for 11 weeks, and cases went from six a day to 2200 a day.


We have had more cases in total than any other state in Australia, we have had more deaths than any other state in Australia and the government which has delivered this debacle now wants new and additional powers to manage a pandemic.


So is it any wonder that there is enormous concern among the Victorian population? There is enormous anger among the Victorian population. We have seen over the last two weeks email boxes flooded with emails, thousands of emails of concern from citizens around the state, thousands of emails of concern from citizens within our own electorates. We have seen the marches in Melbourne of 90 000, 100 000 people. We have seen the vigil on the front steps of this Parliament for the last 24 hours. There is enormous anger, and there is enormous concern about the way in which this government has mismanaged the pandemic over the last 18 months and the powers it is now seeking to seize through the bill before the house.


We heard over the course of this debate—and we have heard from some of the members of the government prior to this debate raising concerns—about the methods of some of the protesters and the symbols and placards of some of the protesters. I would say to those members of the government: rather than worrying about the symbols being used by the protesters, why don’t you actually focus on why they are protesting, why people are angry and why they do not trust this government?


It is worth noting that the regime we have endured for the last 18 months—the restrictions, the lockdowns, the confinements to home, people being locked out of their jobs, the mandates of vaccines—have all been done under the existing Public Health and Wellbeing Act 2008. Part 8 of the current Public Health and Wellbeing Act deals with ‘Management and control of infectious diseases, micro-organisms and medical conditions’. It is a section which has a number of principles as to how it should be used—for example, section 111, ‘Principles’:


The following principles apply to the management and control of infectious diseases—

and the first one, and perhaps the most critical one for this debate—

the spread of an infectious disease should be prevented or minimised with the minimum restriction on the rights of any person …


That is the key principle, the first principle articulated around the use of part 8, the current pandemic framework. Aligned with that we also have some more general principles in the Public Health and Wellbeing Act, set out at section 5, ‘Principle of evidence based decision-making’:


Decisions as to—

(a) the most effective use of resources to promote and protect public health and wellbeing; and

(b) the most effective and efficient public health and wellbeing interventions—

should be based on evidence available in the circumstances that is relevant and reliable.

In section 8, ‘Principle of accountability’:

(1) Persons who are engaged in the administration of this Act should as far as is practicable ensure that decisions are transparent, systematic and appropriate.

(2) Members of the public should therefore be given—

(a) access to reliable information in appropriate forms to facilitate a good understanding of public health issues; and

(b) opportunities to participate in policy and program development.

In section 9, ‘Principle of proportionality’:

Decisions made and actions taken in the administration of this Act—

(a) should be proportionate to the public health risk sought to be prevented, minimised or controlled; and

(b) should not be made or taken in an arbitrary manner.

Now, those are the principles which should have guided the actions of this government over the last 18 months, and I do not think there are too many people in the chamber here, too many people on the front steps of Parliament today and too many people in the broader Victorian population who would believe that any of those principles have been adhered to by this government in its use of the pandemic powers over the last 18 months. Yet what we are being presented with today is a bill which does not even require those principles to be adhered to.


The new section 8A, which will be the new special pandemic section inserted into the Public Health and Wellbeing Act, does not articulate any guiding principles at all. There is no requirement for proportionality in that section. There is no requirement for evidence-based decision-making. There is certainly no requirement for accountability. So we have seen the government effectively ignore the existing principles, ignore the existing requirements under the current provisions, and now it is asking for new provisions that do not even require those principles to be in place in that section at all.


It is worth noting that in the bill we are dealing with today the new section it seeks to insert into the Public Health and Wellbeing Act, part 8A, does not replace the existing framework. It is in addition to the existing suite of powers, so all the powers the government has used over the last 18 months, the general provisions in part 8, will continue to be there. And now we will have an additional suite of powers—extra powers, an extra framework—which the government says it will use in relation to pandemics, a set of powers which do not require adherence to the principles set out in section 111, as have been ignored, and the other sections of principles which have been ignored.


The new part 8A sets out in division 3 the new orders that the Minister for Health, following a declaration by the Premier, will be entitled to make. I will give an overview of those without reading them all. Subsection 2 talks about the types of orders:


Without limiting subsection (1), a pandemic order may include, but is not limited to, an order—

(a) that requires persons to be detained in a pandemic management area for the period specified in the order—

(c) that restricts movement in a pandemic management area …

(d) that requires movement in, into or from a pandemic management area …

(e) that prevents or limits entry to a pandemic management area …

(f) that prohibits or regulates gatherings whether public or private in a pandemic management area …

(g) that requires the use of personal protective equipment in a pandemic management area …

(h) that prohibits or regulates the carrying on of activities, businesses or undertakings in a pandemic management area …

(i) that requires the provision of information—

and I will come to this later—

(including information about the identity of any person), the production of documents or the keeping of records; or

(j) that requires the medical examination or testing of persons in a pandemic management area or as a condition of entry to a pandemic management area; or

(j) that requires the quarantining, destruction or … management of disease vectors in a pandemic management area …


which relates to animal aspects. That is just a flavour of the types of orders that can be made under this new bill, orders that can be made without the constraint of the principles that are set down in section 111 of the existing part 8. Part 8A will operate without those guiding principles—notwithstanding the fact they have been ignored by this government anyway—but we are told that this is fine because the Scrutiny of Acts and Regulations Committee will provide oversight. Well, we have seen over the last 18 months the failure of SARC to provide any meaningful oversight at all. As this house knows, SARC is a government-controlled, government-dominated committee. There are seven members of Parliament on SARC, with five effectively from the government, so the suggestion that SARC would in any way scrutinise the actions of the executive government is farcical. We have not seen them do it to date. They are not about to start with this bill.


The government has run out and said, ‘Orders under the new provisions will be able to be disallowed by Parliament’. What the government does not talk about is the fine print that says orders can only be disallowed if SARC recommends it. And we know that SARC is not going to recommend it because it is a creature of the government, wholly controlled by the government. As Mr Hayes said, even if SARC was to recommend a disallowance, it would require both houses for disallowance, so the house controlled by the government would need to recommend the disallowance of orders made by the government. And one thing we have seen with this government is a complete lack of independent thought by any members on the government benches, so the prospect of the government or any member of the government actually acting independently—acting in the interests of the people of Victoria rather than the interests of the government—and recommending the disallowance of an order is non-existent.


We have seen over the course of the last 18 months a reluctance of this house to scrutinise and hold the government to account.


We have had opportunities through the course of the last 18 months as legislation has come before this house, as motions have been moved in this house, to actually hold the government to account as to how it has used the pandemic powers it already has, and this house has failed. We have seen repeatedly the gang of three vote with the government to oppose scrutiny, whether it is requiring documents to be delivered—not just ordered but actually delivered—whether it is imposing accountability mechanisms in the amending legislation we have had on pandemics on the way through or whether it is having the house sit so it can scrutinise the government. Consistently the gang of three have voted with the government to block those scrutiny measures. This house has failed in its duty to scrutinise the government because of the actions of those members, and the suggestion now that we can rely on SARC, a government-controlled committee, is even more farcical.


The bill contains a huge number of very controversial provisions which we will go through in great detail in committee, one of which is the abrogation of the right against self-incrimination. The current Public Health and Wellbeing Act very clearly states that the right against self-incrimination is not overridden by it. It actually has a note that says, for the avoidance of doubt, even though there are requirements to produce information under the current act, the right against self-incrimination is not overridden. This bill reverses that. This bill intentionally overrides the right against self-incrimination, not because it makes people safe but because it is administratively convenient. We increasingly see legislation that comes to this place drafted by the public sector, rubberstamped by the government, which is for the convenience of public administration, not in the interests of the public or in the interests of the rights of the people of Victoria.


The government says, ‘Trust us’, and they say to the backbench, ‘Trust us. We’re a good government. We’re good ministers. We’ll use this responsibly’. But this is not just about this government. This is about governments in the future, governments in 15 years, 20 years, 30 years time, long after we have all left this Parliament. These powers will be gifted to governments of the future, and while those opposite will say, ‘Oh, we’ll use them responsibly’, and they will have told their backbench they will use them responsibly, whether the public believes it or not, this is not about us. This is about a framework which will be in place for future governments and future members of Parliament that have not even been elected, so the notion of ‘trust us’ is not good enough. This needs proper scrutiny and should be opposed.