Journey

In March 2020, the Victorian state government declared a state of emergency in response to the rapidly developing coronavirus situation. The government then implemented extreme lockdowns across the state. At the time we had little information about the virus and politicians were afraid, and so they overreacted.

The government rapidly forced most of the state into two weeks of stay-at-home directions. Many of us gave the government the benefit of the doubt. We believed that the government would use the time to prepare for the pandemic: it would implement procedures, strengthen contact tracing and draft a response to present to Parliament.

We were wrong. We did not see an adequate contact-tracing system until after the disastrous second wave, and we are yet to see legislation to replace the reliance on temporary powers.

At the six-month mark the declaration was set to lapse. The Parliament eagerly awaited legislation that would allow the government appropriate and limited powers to manage the ongoing COVID situation without allowing the disproportionate and extreme responses we had seen so far.

The government failed to present any legislation. Instead of using state-of-emergency powers to address the short-term crisis while it developed a long-term solution, the government revealed that it instead planned to rely on emergency powers indefinitely.

Governments cannot be trusted with emergency powers. Prior to the parliamentary debate to extend emergency powers beyond the six-month limit, thousands of Victorians took to the streets in protest. The Victorian government sent state security forces to smash these protests—to shut down the demonstrations and arrest the protesters.

The government sent officers to the homes of people who had made public statements that were critical of the COVID response. We saw videos of police breaking into houses and handcuffing pregnant mothers and of police choking young women who would not wear their masks. The Premier’s only response to this violence was to condemn the protesters and to lament that a single officer had injured her arm while she attempted to quash a protest.

We were contacted by thousands of concerned citizens. Most striking were the immigrants who had fled authoritarian regimes and who now were once again afraid of the police and worried about their own government taking their rights away. Formations of armed and armoured men stormed the Queen Victoria Market and corralled protesters. Under the pretence of punishing those who broke social-distancing directions, protesters were squashed together. Kettling, a tactic whereby groups of people are ringed by police, forced together and not allowed to leave, was used to deny Victorians their usual detainment rights, like being informed of the reasons that they are being detained.

In the middle of the pandemic the government used the emergency powers to hold hundreds of protesters in close proximity for hours on the grounds that they had breached the social-distancing rules by gathering in groups too close together, risking spreading the virus.

Kettling was followed up with the mass arrest of vocal dissidents.
Victorians were right to worry. Government accountability agencies have since described the government’s response to the COVID outbreak in public housing as a breach of human rights.

This state of emergency has now lasted more than a year and has been extended multiple times. At this stage, it will stretch on until late this year. The public anger against the extensions was fuelled by a disregard for previously established norms and expectations about the use of emergency powers.

Emergencies are, by definition, short term. They are serious, unexpected and dangerous situations that require immediate action. No emergency lasts 21 months. No emergency lasts even six months.

Emergency powers are for unexpected crises that cannot be anticipated. The public expectation is that emergency powers will only be used to address an immediate problem and only until proper legislation can be drafted and the Parliament convened. These powers are not intended to give unilateral and indefinite authority to the government.

The way we handle a two-year pandemic should not come down to the Premier’s will to power—it should be a democratic process where the representatives of the people are continually and routinely consulted. The very same process that we use to make laws about every other situation is also appropriate for making laws about an ongoing pandemic. There is no reason and no cause to effectively suspend democracy.

That is the motivation for this legislation. This is what the bill will do.

Clarification of purpose

The bill includes a section that clarifies that a declaration of a state of emergency is only intended to be made if:
• extraordinary action is necessary to eliminate or reduce a serious risk to public health;
• that such action is necessary sooner than it would be possible to develop the legislation required to undertake such action; and
• only for the purposes of taking such actions only as a temporary measure until legislation is able to be drafted to respond to the emergency.

The bill also specifies that the purpose of requesting an extension to a state of emergency is because the government needs more time to draft legislation that would deal with the ongoing situation arising from the emergency.

Parliamentary oversight

The bill alters the procedures for declaring a state of emergency. The bill requires that a declaration of a state of emergency only takes effect when Parliament agrees to the declaration—or when extraordinary action is required sooner than it is possible to consult the Parliament.

This provision places limits on the government’s ability to act unilaterally, without compromising the state’s ability to respond to an immediate threat. The same requirement is also true of public health directions issued using the emergency powers.

The bill allows the Parliament to disallow specific declarations made using emergency powers. This ensures that even unilateral use of power can be met with parliamentary oversight and the abuse of power can be rectified.
The bill requires that any extensions to the state of emergency, including the ones currently made by the chief health officer on a monthly basis, are agreed to by Parliament. This de facto requires the Parliament to sit at least once per month during an emergency if the government wishes to extend the state of emergency.

The bill also closes loopholes that may allow the state to sidestep parliamentary accountability. Declarations cannot be made back to back or remade after they were disallowed by the Parliament. These provisions reiterate that the Parliament is the appropriate seat of lawmaking power in the state—not the Premier or the chief health officer.

Penalties for abuse

The bill also creates a real consequence for lawmakers that abuse emergency powers. This highlights the need for considered use of these special powers and protects Victorians from inappropriate use of emergency powers. These consequences also prevent the chief health officer from being used as a puppet or figurehead.

With these changes, the CHO would be required to consider health orders and not merely rubberstamp the actions of the Premier. Recklessly or knowingly issuing an unlawful authorisation under the emergency provisions would carry a maximum penalty of imprisonment for five years. This reflects the serious impact that unlawful orders can have on the rights and lives of Victorian people.

Amendments to the Emergency Management Act

The bill makes similar provisions in the Emergency Management Act regarding the state-of-disaster powers.

This legislation makes no changes to any declarations currently in force in relation to the COVID-19 pandemic. The bill is an effort to learn from government failures during the COVID pandemic and to protect Victorians from government abuse of power in future emergency situations.

The bill will not prevent all abuse of emergency powers, but it will significantly reduce the scope for abuse. The powers in the Public Health and Wellbeing Act and the Emergency Management Act are still in need of significant reforms that fall outside the scope of this bill. It’s my hope that the members of this place can find common ground in the provisions of this bill.

The core of this bill is to limit unilateral control in favour of democratic, parliamentary decision-making.
Let me conclude by stating: I do not trust government with power. Power corrupts. It is not just a tired saying—it is a truism that we see play out over and over. It is the nature of government to use any powers they have to achieve their ends. Powers will be misused. And if there are no consequences for misuse of the power, the power will be misused frequently.

In an ideal world, we would hand over as little power as possible to the government. Sadly, our governments have already amassed far too much power even in their day-to-day operation—before we even consider the emergency powers.

Any system of giving power to government must be designed with checks and balances. As we have seen all too well over the last year, the state-of-emergency and state-of-disaster declarations have far too few checks in place to prevent abuse. Currently, unlawful overreach takes place with impunity—as we have seen many times during the last 12 months during the pandemic. This bill attempts to reign that in—the next time the powers are invoked.

And they will be invoked again, because having been used once, government will have developed a taste for them, and the population a tolerance for them. So it is more important than ever to protect the rights of Victorians—the rights that have been trampled into the mud over the last year—that we reform the laws and introduce limits and accountability.

I commend the bill to the house.
Ms TAYLOR (Southern Metropolitan) (10:02): I move:
That debate on this bill be adjourned for two weeks.
Motion agreed to and debate adjourned for two weeks.