The need for more parliament in Victoria’s Pandemic Bill

This week, Victoria’s Upper House will debate the government’s Pandemic Management Bill that aims to update Victoria’s legal framework for managing pandemics.

Public debate about the Bill has been gathering pace.

In general, the political ‘right’ has had much more to say on the Bill, often linked to their political grievances about lockdowns and vaccine mandates. Much of it therefore hasn’t been constructive, questioning the need for a new legislative framework and making claims that the government’s motives are undemocratic.

But there is a growing chorus of constructive criticism from both the Victorian legal profession, public law academics, and the Law Institute of Victoria.

These commentators state openly that the Bill gets a lot of things right. There’s little question that pandemics require fit-for-purpose and specialised legal powers. And it makes sense for the political heat around pandemic measures to fall on the (elected) Premier and Minister for Health, rather than the (unelected) Chief Health Officer (CHO). But the Bill needs improvement.

Political not legal accountability

Chief among our concerns is what happens if the government of the day overreaches in its use of the extensive powers that the Bill provides?

We shouldn’t think that the courts will save the day. Judges tread lightly on what they perceive to be political territory at the best of times. On top of this, the Bill is full of textual signals for courts to stay away.

In any event, waiting to find out how the courts will respond is a vulnerable position to be in, accountability-wise. It’s much better – and far more consistent with Australia’s tradition of parliamentary constitutionalism – to position parliament as the key actor in ensuring accountability.

The Bill appears to be taking this approach. Certainly, it provides for improved transparency and protections compared to the current legal framework. But the actual role of parliament is otherwise minimal.

Where is parliament?

For example, take the provision made for a report to be tabled in parliament detailing the Premier’s reasons for making or extending a pandemic declaration. The Bill only requires this to be done after the declaration has already been made. The same applies to pandemic orders made by the Minister.

It means there is no legal consequence if these requirements aren’t met. Effectively, this provision is just an ‘FYI’.

A limited role for parliament might be acceptable at the outset of a pandemic – the very existence of laws like this is an acknowledgment that governments need to be allowed to govern in emergencies. But what about six or 12 months in? Shouldn’t parliament have a greater role in determining how Victorians are governed – over the course of a pandemic – than merely being kept in the loop?

This underscores the need for tighter controls in the Bill in relation to the number of times a pandemic declaration can be extended. Initially applicable for a period of four weeks, the Premier’s pandemic declaration can be extended for an unlimited number of three-month periods. That’s a whole lot of government-by-pandemic-order with barely any role for parliament.

We are also concerned about the role envisaged for the Scrutiny of Acts and Regulation Committee (SARC). The Committee is given explicit power to review both the lawfulness of pandemic orders as well as their compatibility with human rights in the Victorian Charter. This sounds good in theory. But what about in practice?

The Bill provides that should SARC recommend that a pandemic order be disallowed – cease operation – both houses of parliament must pass a resolution to that effect. The problem here is best put as a question. Why would a government that possesses a majority in the lower house pass a resolution to disallow its own powers?

Real parliamentary accountability

It is crucially important for good governance that the Bill preserves parliament’s powers to scrutinise and hold governments to account. Parliament is the deliberative body at the centre of our democratic tradition. It is our representative body and therefore mustn’t be sidelined for months or years during a pandemic.

The Government claims that the Bill reflects lessons taken from national and international best practice. We’re not so sure, at least with respect to parliamentary oversight of pandemic management.

Emerging best practice in other jurisdictions over the last 20 months has centred around specialised, cross-party committees that are specifically focused on pandemic management oversight.

At the Commonwealth level, the Senate Select Committee on COVID-19 has provided key oversight of the Morrison government’s management of the pandemic. In New Zealand, the Epidemic Response Committee has carried out similar scrutiny of the Ardern government’s management powers. Both have worked to provide broad oversight of the government’s pandemic management by holding public hearings, calling witnesses, and issuing reports.

Victoria’s Pandemic Bill should be amended to do the same. It should create a specialised cross-party parliamentary committee that would start operating as soon as a pandemic declaration is in effect.

This committee could include equal numbers of members from the government and opposition as well as three to five independents elected by the upper house. Its work could be complementary to that carried out by the SARC.

Real accountability, not just trust

In proposing this Bill the government is saying “trust us.” But trust in this government isn’t the point. Democratic constitutional systems like ours can’t just resort to executive governance every time our political leaders tell us that they need more powers to keep us ‘safe’.

The big problem with this Bill is that it gives too much power to the government, and far too little to parliament to balance things out.

The failure of parliamentary oversight is a problematic trend across all levels of Australian government. Victoria needs to take the lead and do things differently.

Remember what a Bill is. It’s a proposal for what the law should be. Once this Bill is passed, it will be the law not just for this government, but for governments to come.

Parliamentary oversight is not a nuisance for government. It is vital to ensuring democratic accountability. The Bill must be amended to ensure this kind of real parliamentary oversight.

Victoria needs to get this right, for its citizens and its democracy alike.

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