13th of November 2021

Recent events – recent in terms of Victorian history – have been ominous.  A friend early on pondered whether the actions of the Andrews government threatened our democratic freedoms, and I naively thought not.  But, upon reflection, I now share his concerns.  Consider:

• We cannot get rid of even the worst government within less than four years.
• The Governor cannot sack the government without a recommendation by the Premier.
• Wartime-like restrictions, curfews, and lockdowns can be imposed by edict – supposed to be used only for stringent emergency and temporary use but actually imposed on us for world-record durations.
• Parliament, supposedly elected to represent us and protect us from tyranny, has been cut back by half. The government refuses to follow the laws and conventions on openness, accountability and honest dealing with the electorate.
• Public officials can conspire to injure citizens, throw them out of lawful employment and falsify “evidence” of criminal activity against them – without remorse, apology or explanation – and be protected by the organs of government.
• Members of the ruling elite can engage people at public expense to pursue those members’ private purposes in seeking election – and again evade the sanctions of the law under the protection of the organs of government
• Officials can spend $30 million of public money (for hotel quarantine) without any discernible record of who authorised this, what steps were taken to ensure the money went to a lawful supplier of the services sought, or even whether the supplier could reasonably be expected to do so.
• We can now – apparently – be compelled to get jabbed, twice, with chemicals we might personally object to, or be tossed on the scrap heap of social outcasts; locked out of work, milk bars, cafes, and footy grounds.  (But judges are exempted.)

What has happened to what used to be perhaps the most liveable, most free, most robust society, with a Police Force that was renowned for Upholding the Right?

What has happened to our Democracy?

Actually, something like what happened in Germany between the first and second world wars – creeping tyranny.

The encroachments started in small ways as ours did;  people stood quietly by, as we have.  The despotic manipulators enjoyed adulation as “saviours” – and thus were perceived to be beyond accountability or scrutiny.

That, and worse, is what has been happening to Democracy in Victoria.

What is even more worrying than what has already happened is what is going to happen according to this government’s agenda.

Under a bill presently before the Parliament, the limitations of the temporary State of Emergency are washed away, and a new social management order would come into being.

The new bill is breathtaking in its grab for power, giving politicians the ability to quash dissention without any actual health issues, but merely the perceived threat – that is, perceived by those politicians.

And as reported in Lawyers Weekly this week (see ref. below):

“A damning letter opposing Victoria’s new pandemic legislation granting Premier Dan Andrews and the government “extraordinary powers” to rule the state without proper parliamentary oversight or the usual checks and balances has extended from 14 signatories out to 60, including Queen’s counsel and the Victorian Bar Association.”

Politicians, not public health officials, are to be given sweeping powers to declare pandemics and enforce public health orders for three months at a time, with “unlimited and practically unreviewable” power to rule the state by decree on a long-term basis.

The letter, circulated at the end of October, has since amassed support from another 46 Queen’s Counsel (QCs) concerned that the low threshold and extraordinarily broad definitions within the bill will make it “practically impossible” for an individual to challenge the merits of a public health order in court. Instead, if a person wishes to, they must reach a “very high bar” of establishing legal unreasonableness.

Under existing arrangements the emergency powers given temporarily to the Chief Health Officer are, at least theoretically, subject to checks and controls by elected officials, but it is plain that this government does not allow supposedly temporary and emergency powers to stand in the way of its casual, world-record, lockdown of the populace when it suits it.

Curfews are nothing compared to what faces us in the future.

“….we can expect a pandemic declaration to be in force for the foreseeable future. Thus, the minister’s power to make pandemic orders will remain in place for the foreseeable future,” the lawyers’ letter read.

Once a declaration is in place (the stroke of a pen) the only other requirement for the minister to make a public health order is that the minister must believe the order is “reasonably necessary to protect public health”. Not only is this threshold low, the QCs argued, but it is enough if the minister “subjectively believes that the order is reasonably necessary”.

This could allow orders that for the detention of persons, restriction of movement, regulating public or private gatherings, requiring the provision of information and requiring testing and medical exemptions of residents, say the lawyers.  

THIS IS ALREADY HAPPENING

The bill also provides “extremely broad and unchecked powers on authorised officers” that include taking any action or giving any direction “that the authorised officer believes is reasonably necessary to protect public health”. It could mean an individual authorised officer will single-handedly have the power to shut down a political protest if the officer subjectively believes it is reasonably necessary.

“It is, in our view, no answer to these criticisms to say that the bill contains more safeguards than presently exists for the emergency powers under the Public Health and Wellbeing Act 2008. The emergency powers are just that – extraordinary powers that are available to be exercised for only a very short period,” the letter said.

“It is one thing to allow temporary rule by decree to deal with an unforeseen and extraordinary emergency in circumstances of extreme urgency. It is something else altogether to entrench rule by decree as a long-term norm. In our view, this is antithetical to basic democratic principles and should not be allowed to happen.”

The CAA would also highlight what we understand is a substantial increase in recruiting activity for Authorised Officers, as the Government /Premier is building their own Political Police wing (under the guise of health) with extraordinary powers that police officers cannot and should not have.

Interestingly, this Health Police Force is predominantly managed in its current form by former airline cabin Staff who the Premier rescued from the crash of the airline industry, with no training or qualification for their new role.

It is fascinating to observe the Premier defending his new push for power on the grounds that it increases “transparency and accountability” at the same time as:

• the government resolutely refuses to release the existing health advice and modelling given to it, and
• the government cannot even remember who brought about the hotel quarantine disaster that led directly to 800 deaths.

This legislation must not be allowed to succeed.                                  https://www.lawyersweekly.com.au/biglaw/32999-legal-bodies-qcs-oppose-new-victorian-pandemic-bill

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