Victoria's New Pandemic Laws

The Victorian government is getting ready to pass new pandemic-related legislation. Given the intensity of the debate around the Andrews government's handling of the Covid-19 pandemic, I thought this would be a fitting topic for my first post.

Under the new laws, any Victorian premier would be able to declare a pandemic for a period of three months, and to extend that in 3-month blocks indefinitely. I say 'any Victorian premier' because these laws are not just about Daniel Andrews; they will also apply to any future Victorian premier from any party. That is of course how all laws work, but it's a good point to make because, while people opposed to Daniel Andrews are already jumping up and down about these laws, I doubt they'll have the same level of objection if and when a future Liberal premier comes into office and receives these powers. People's attitude toward government power is rooted in trust, and for many, the question of whom they trust with power is very partisan.   

The point of these new laws is to replace the old state of emergency laws under which Victoria has been operating throughout the pandemic. I italicise replace because those with only a shallow understanding of this issue and/or an understanding informed solely by right-wing media will no doubt be led to see these laws as creating extra powers for Daniel Andrews, when in fact it is more accurate to call them replacement powers. They have been in the works for around seven months, ever since their creation was promised to the crossbench by the Andrews government, because everyone acknowledges that the current state of emergency system was not intended for prolonged use and has become an inappropriate tool for continued management of the Covid-19 pandemic.      

So why replace the state of emergency system we have been using? Well, there are several reasons, but it all comes down to the fact that they are not fit for purpose. The state of emergency system was designed to help the government deal with short-term disasters, not pandemics that dragged on for years. A state of emergency has a set duration and requires renewal via a vote if it needs to be extended. Under the new pandemic laws, the need for such votes is eliminated. That's a very serious step to take, but it has been made in order to address the reality of the prolonged disaster we have all been suffering through. Personally, I can see both sides here. I support the government (of any party) being legally empowered to deal with pandemics free of cumbersome legal requirements that might hinder a public health response. I am also wary of the potential for abuse. A lot of the apprehension I feel comes down to the heavy reality that governments can have a lot more control over our lives than we are normally accustomed to.    

Thankfully, there are other aspects to these new laws that go in the opposite direction, though of course you wouldn't know it if all you went by was the Facebook comments. Under the soon-to-be obsolete state of emergency framework, the government is empowered to nominate someone like a Chief Health Officer, whose role is to make recommendations for dealing with said emergency. Although unelected, Chief Health Officer Brett Sutton's 'public health orders' have carried the force of law throughout the pandemic, thanks to the state of emergency framework (and regardless of what some on social media have been saying about the Covid guidelines being 'illegal'). The new pandemic laws eliminate this scenario.

In the future, public health recommendations will be made by the Health Minister, a member of the government who was elected by the people, and can be replaced by them if the majority in their electorate feel they performed poorly. Again, there are two sides to this. I believe that Professor Sutton has done a fantastic job throughout the pandemic, and as a health professional rather than a politician, he has made decisions based solely on combating Covid, rather than whatever would get him re-elected. In a future pandemic, the Health Minister might be tempted to go easy with their recommendations so as to remain popular, but at the expense of public health. On the other hand, accountability in those who hold power over us is a vital aspect of a healthy democracy, and these new pandemic laws come down on the side of accountability in this regard.          

Another way in which the new laws concede to accountability is in the creation of an independent body of lawyers, epidemiologists and human rights advocates whose role will be to oversee all pandemic-related decisions made by the government. This body won't have the power to veto or overturn anything the government does, but it will be a useful canary in the coalmine should the government start over-reaching under the cover of a public health crisis. Also included in these new laws are restrictions on police access to people's check-in data from QR codes. 

Obviously, these laws are going to be controversial. Going forward, Victorian premiers will have huge power to alter Victoria's legal settings, and the prospect of that power being abused should be of concern to everyone. However, I'd like to invite everyone to consider the reverse scenario: in a future pandemic, Victorians are dying, but the government can't issue directives to deal with the situation because they need votes from an opposition that either doesn't believe in or downplays the threat. Yes, that seems unlikely, but I'd argue that the government using its pandemic powers without good reason is equally unlikely. Fear of extreme scenarios is not a useful form of public discourse, but when it's brought up it should cut both ways.   

Victoria's new pandemic laws are about planning for the future, and foresight in government should be encouraged regardless of your political leanings. Foresight rather than fear is needed now more than ever.