Tue Oct 26

Victoria's draft pandemic law is missing one critical element – stronger oversight of the government's decisions

Written by: William Partlett, Associate Professor, The University of Melbourne

The Victorian government is introducing a pandemic management bill that will structure its ongoing and future response to pandemics.

According to a draft reported by media today ^[1] (and dated October 23), the bill gives the executive wide powers in the time of a pandemic, including detention powers and the possibility of two years in prison for failing to comply with a pandemic order.

But drawing on the practice in other jurisdictions such as NSW and NZ, it also seeks to create safeguards on these powers. Perhaps the best example is the transfer of decision-making power from the unelected chief health officer to the health minister, who is responsible to parliament.

In one critical way, however, the bill rejects a key parliamentary safeguard that is used in NSW and NZ. Instead of creating a dedicated cross-party parliamentary committee to oversee the exercise of these broad public health powers, it creates an executive-appointed oversight committee for this purpose.

The use of an appointed committee to oversee these powers is a problematic departure from the usual role of parliamentary committees in the scrutiny of executive governance. To ensure a fuller set of safeguards, dedicated parliamentary oversight should be created alongside that of an appointed committee.

What the bill would do

Victoria’s draft bill comes at an important time. It is the first fit-for-purpose law in Australia seeking permanently to structure the way a state or territory government should respond to a pandemic.

It provides the Victorian premier with extraordinary power to make pandemic declarations and extend them ^[3] for “three months at a time, with no outer limit on the total duration of a declaration”. Once in place, the health minister has broad powers to issue “pandemic orders”; failure to comply could lead to two years in prison.

Some of the bill’s provisions respond to the need to balance democratic accountability with an emergency pandemic response. This is particularly so with those creating protections on people’s privacy when checking in with QR codes, and ensuring more transparency in the government’s decision-making process.

But the bill breaks significantly with Australian democratic tradition in one key way. It gives the health minister the power to reinstate a pandemic order that has been disallowed by a key parliamentary committee. Moreover, it gives oversight of these pandemic powers to an appointed non-parliamentary committee.

The creation of this kind of specialised committee (made up of public health and human rights experts) is a good idea. But it should not replace oversight by a dedicated cross-party parliamentary committee. The makeup, powers, and funding of parliamentary scrutiny bodies are well established in Australia, having been part of our parliamentary governance for more than a century.

By contrast, the specialised committee created in this bill is largely advisory. It is fully appointed by the Victorian government and, according to the draft legislation, has no statutory powers to ensure its oversight role (such as guaranteed funding or the power to compel testimony).

This appointed committee should not replace specialised parliamentary scrutiny. In fact, the Human Rights Law Centre actually recommended ^[4] establishing an independent committee of this type alongside a “dedicated cross-party parliamentary committee” in a recent report.

The importance of parliamentary checks and balances

Unlike many other liberal democracies, such as the United States or Germany, which have constitutional bills of rights, Australia does not have strong judicial checks on government overreach.

Instead, Australia’s liberal democracy relies heavily on political checks and balances contained within parliamentary oversight of the executive branch.

The elected upper houses ^[6] of parliaments have emerged as key institutions in this oversight, developing cross-party committees at both the national and state level that oversee the executive branch’s implementation of the law.

Victoria’s Legislative Council during a special sitting of the parliament. James Ross/AAP

The pandemic has undermined this parliamentary oversight at all levels of Australian government. This has been particularly noticeable at the state level, where premiers and health officials have used broad emergency powers to close state borders and issue stay-at-home orders.

These powers have often been issued with minimal parliamentary scrutiny. For instance, at times, parliaments have been suspended ^[7] for health reasons.

How NSW and New Zealand have established oversight

This shift toward executive governance at the state level is understandable on a short-term basis, as the pandemic requires rapid and flexible policymaking that is simply not possible through parliamentary process.

But some jurisdictions have recently figured out ways of ensuring parliamentary scrutiny even during a pandemic state of emergency.

In response to pressure from opposition parties (particularly the Greens) in NSW, for example, the upper house of parliament created a permanent oversight committee ^[8] of the executive’s pandemic response. This body live-streams and records its oversight hearings on YouTube.

New Zealand, with a similar tradition of parliamentary checks on executive overreach, also created a specialised parliamentary oversight body ^[9] at the beginning of the pandemic. This was led by the leader of the opposition and live-streamed its hearings.

These bodies are underpinned by the idea that when operating at such speed, mistakes are sometimes made.

To date, Victoria has not yet followed this trend toward specialised parliamentary oversight of the government’s pandemic response. Instead, it has taken the route of external, independent review. The best example is the judicial inquiry ^[10] into the staffing of quarantine hotels prior to Victoria’s devastating second wave in 2020.

Where to from here?

As the proposed bill is debated in parliament, the government must answer a key question: why depart from this practice of emergency parliamentary oversight and instead choose review by a wholly appointed and weak independent committee?

Given the vast powers given here, there appears to be little justification. The bill should therefore be amended to include cross-parliamentary oversight alongside independent oversight.

This will not only better accord with Australia’s democratic traditions, it will also better preserve trust between government and the people – a critical resource in any pandemic response.