Andrews government secretly negotiating permanent pandemic lawsto replace state of emergency
The Andrews government is secretly negotiating with three crossbenchers to introduce specific pandemic laws that would permanently replace controversial state of emergency powers and significantly change the way the state manages COVID-19 this year.
Demands made by the powerful crossbenchers in return for their support include a requirement that police record the racial appearance of people they stop or fine for breaching health directions, and that the government is forced to be more transparent with the information and trigger points behind interventions such as lockdowns. Disadvantaged Victorians would also be exempted or pay reduced fines if found contravening restrictions.
The federal government's digital certificate for COVID-19 vaccine recipients has been labelled a crucial step for getting back to normal.
The government will be emboldened by the impending return to work of Premier Daniel Andrews, who on Saturday night released a photo showing himself receiving his first dose of the Pfizer vaccine at The Alfred hospital on Wednesday, exactly three months after he fractured his spine in a fall at a rental home on the Mornington Peninsula.
Mr Andrews, who fractured a vertebra and five ribs and narrowly avoided permanent spinal cord damage, will return to work on Monday, June 28.
In a Facebook post on Saturday night, the Premier said: “My vertebra has almost fully healed and my ribs are well on track. The team taking care of me has given me the all clear to get back to work soon.”
State of emergency laws have been active in Victoria since last March as the legal instrument that allows authorities to enforce a range of public health commands, including lockdowns, mandatory mask wearing and 14-day quarantine.
Human rights lawyers and opposition MPs say the sweeping powers, which are usually reserved for short-term disasters such as fires and floods, do not include enough safeguards to enforce proper government accountability and transparency.
The Age can reveal the government is designing the new laws to cover all future pandemics, not just the coronavirus pandemic. It is intended that they will be in place by December, when the current state of emergency provisions expire, and a first draft is expected within the next two months.
The pandemic legislation will be permanently shaped by the demands of three upper-house crossbenchers: Animal Justice Party MP Andy Meddick, Reason Party MP Fiona Patten and Greens leader Samantha Ratnam.
They hold significant power because the government relied on their support to pass a nine-month state of emergency extension in March and a six-month extension before that.
The three crossbenchers promised their votes on the condition that new, more targeted laws would be drawn up with a particular focus on preventing the recurrence of incidents of the past 16 months that they viewed as government overreach, such as the snap lockdown of nine public housing towers last year.
In an unconventional move that has infuriated the Coalition and other crossbenchers, the Health Department is negotiating the new legislation with only Mr Meddick, Ms Patten and the Greens, and has held a series of meetings with them behind closed doors in recent weeks.
“If you didn’t vote for it in March, you didn’t get a seat at the table,” said one source familiar with the discussions.
Strengthening the crossbenchers’ power is the fact that if one were to pull out of negotiations because their demands were not met, the government would be back to square one in its attempts to pass powers that are integral to managing the coronavirus pandemic.
The Greens outlined a series of demands at a meeting with senior Health Department officials on Tuesday. Most radical was a request for police to report the racial identity of every person they stop during a pandemic.
In response to questions from The Age, Greens health spokesman Tim Read said the change would “make transparent any bias or racism among their [police] ranks”, similar to an initiative in the United Kingdom that has consistently proven that police more frequently stopped and searched black and Asian people than white people.
Dr Read said his party would like organisations such as Victoria’s Independent Broad-based Anti-corruption Commission (IBAC) to scrutinise policing in a pandemic.
“We would also like to protect disadvantaged members of the community from disproportionate impacts of lockdown, including public housing residents, people of colour and young people from low-income families,” Dr Read said.
That includes reducing the amount they pay in fines - an agreement the Greens partially secured in March - and preventing immediate lockdowns of public housing towers.
Mr Meddick said he agreed on reforming fines and public housing interventions, telling The Age he wanted the new legislation to be a health response first with legal consequences and enforcement as a “support structure only”.
“I feel we haven’t had that balance right at times in the last year,” he said.
The Animal Justice MP said he wanted the bill to include a provision that any tough restrictions are enacted in stages, with trigger points for the progression to the next phase. It is yet to be decided under what conditions the extreme powers enabled by specific pandemic legislation would be activated and deactivated.
“That is all about public transparency and giving the community surety about what would happen next and when,” Mr Meddick said.
“I don’t want Victorians to be pitted against each other, arguing whether we should have one rule or not. If there’s better transparency on how we go about dealing with this, I think to a very large degree you’ll find a lot of that confusion and anger evaporates.”
In a move that triggered condemnation among opposition MPs and lawyers in September, Labor proposed an addition to the state of emergency powers whereby “authorised officers” would be allowed to pre-emptively detain somebody they suspected of breaking health directions.
While the controversial idea was soon retracted, Hugh de Kretser, executive director of Australia’s Human Rights Law Centre, said it was an example of the government misjudging the balance between protection of health and an individual’s rights.
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Mr de Kretser said strong legal safeguards, which are not built in to the current Public Health and Wellbeing Act, were critical given the potential for major restrictions on the public’s lives and employment.
“Restrictions must be no wider than what is strictly necessary to protect public health. They must be time limited. People must be able to test restrictions that affect them through accessible review mechanisms,” he said.
“Governments must be transparent in a timely way about the health evidence justifying any restrictions and the impact of those restrictions on people’s lives.”
Confusion surrounded several major decisions during last year’s lockdowns in Victoria, particularly around the imposition of a night-time curfew.
Weeks after Premier Daniel Andrews announced the curfew, Chief Health Officer Brett Sutton and Police Chief Commissioner Shane Patton separately spoke on radio to reveal the curfew was not their recommendation. Mr Andrews subsequently refused to confirm whose idea the curfew was.
In negotiations with the government, Ms Patten has raised transparency as a key demand, and she told The Sunday Age the Parliament should play a more pronounced role in overseeing government decisions.
“The public deserve to know the underlying thinking and scientific information that leads us to things like lockdowns,” the Reason Party MP said.
Mr de Kretser also encouraged wide consultation on any new laws to deal with pandemics.
“Getting this right is critically important. We’re talking about matters of the utmost public interest.”
Liberal MP Georgie Crozier, the opposition’s health spokeswoman who shares the upper house with the three influential crossbenchers, went further, saying the government was being “held to ransom”.
“These three are not from major parties, they don’t have a big voter base and yet they are wielding so much power over the government,” she said.
“This government is only the government of the day. They are now making enormous decisions based on three crossbenchers who want their narrow agenda accommodated. It’s not good for our democracy and it’s not good for Victorians.”
A government spokesman confirmed the Health Department was exploring an addition to the existing Public Health and Wellbeing Act “that will update and streamline key parts of Victoria’s pandemic response”.
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“A constructive process is under way with key stakeholders to inform the development of this change, to ensure that Victoria’s approach is best practice in comparison with other jurisdictions and complements our own existing and highly effective emergency management frameworks,” he said.
Greg Buchhorn, a lawyer and policy committee member of civil rights group Liberty Victoria, said the broad State of Emergency laws have resulted in some extreme intrusions on individual rights, such as forcing new prisoners to do 14 days of quarantine - “effectively solitary confinement” - even with little to no COVID-19 in the community.
“Because we don’t have clearly defined laws on what governments or bureaucracies can do, we’re giving away all this power and it has real-life consequences,” he said.
“Ultimately there’s no specific way to challenge these decisions under the current legislation and it doesn’t specify: where do we draw the line on the powers we give the government?”
Confirmation that Premier Andrews will resume his leadership of the pandemic response comes after a week in which the circumstances around his fall dominated the agenda at Parliament, starting when Liberal MP and shadow treasurer Louise Staley demanded he answer 12 questions about the March 9 injury.
The questions included who called the ambulance and whether police interviewed Mr Andrews, leading Labor MPs to accuse Ms Staley and the opposition of peddling “QAnon craziness”.
A spokeswoman for the Premier - who wore a North Face shirt, the brand that became synonymous with his 120 consecutive press conferences last year, while receiving his Pfizer shot - said Mr Andrews had been keen to get vaccinated as soon as possible and experienced no adverse reaction to the jab.
Acting Premier James Merlino will return to his roles as Deputy Premier, Education Minister and Mental Health Minister when Mr Andrews returns.
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