Victoria’s Premier Daniel Andrews wants parliament to agree on a 12-month extension of the state’s emergency powers. This is unlikely to pass the Legislative Council.
These powers have made the Victorian Chief Health Officer (CHO) Brett Sutton the most powerful person in the state. Necessary at a time of pandemic.
Mr Sutton has the extraordinary power to stop parliament from sitting. He has the power to limit citizens’ movements and to detain them in their homes, all without any parliamentary scrutiny.
The rate of infection is dropping, he’s done a good job. It is also evidence that an extension of emergency powers is unwarranted.
Victorian Equal Opportunity and Human Rights Commissioner Kristen Hilton warned that “any restriction on human rights must be necessary, justifiable, proportionate and time-bound.”
Mr Sutton’s focus is on our physical health. His is a medical view as it should be for now. He’s on a mission to bring down COVID-19 infections, and it seems that the citizens trust him.
The CHO does not have to consider how his measures’ impact on the economy, on social cohesion, on faith and cultural rites; on families, small, large and extended; on individuals, many of whom are lonely now; on old people separated from kin, grandchildren and friends; on our communities; and on our collective mental health.
If numbers continue to lower things need to loosen. A great – if less evident – health crisis may loom otherwise.
Social activity, the ability to engage with community and find relief are nigh impossible. Many people are no longer attending GPs or specialists to maintain treatments. Anxiety, loneliness, and depression may become collective shadows if we are not careful.
The CHO’s oft-repeated phrase ‘evidence based’ may need more scrutiny. There is no epistemological unity in the responses to COVID-19. There’s a consensus, however various jurisdictions and nations, have taken different approaches.
Giving evidence to the Public Accounts and Estimates Committee Inquiry (PAEC), Mr Sutton was clear and honest. What was clear was that evidence – and we have much more now than six months ago – changes. So should our responses alter in terms of lockdowns and emergencies.
The Acting Deputy CHO in the beginning of Stage 4, when he was asked about DHHS modelling, quoted Secretary of State Donald Rumsfeld’s infamous poetics in response to the looting and burning in Baghdad after the US invasion of Iraq, “there are known unknowns; … we know there are some things we do not know”.
The Premier and CHO were, up until now, saying the evidence revealed that infections in aged care homes “came in” from staff. Now evidence reveals that 70 per cent of all infections among health workers originated in the workplace.
The state of emergency enacted under the Public Health and Wellbeing Act 2008 confers wide-ranging powers to the Chief Health Officer, including the power to quarantine people, prohibit mass gatherings and impose restrictions to movement.
The Act confers a broad power to give any direction that is reasonably necessary to protect public health. The Public Health and Wellbeing Act is administered by Victoria’s Health Minister Jenny Mikakos.
READ MORE: Victoria declares a state of emergency to combat spread of coronavirus
In order to access the powers contained in the Act, and give them to the CHO to exercise, the Health Minister declares a state of emergency on a monthly basis. This is part of the checks and balances of our democracy.
There are further checks, the Minister acts on the advice of the CHO in order to be able to make the monthly declaration. More protections exist on the CHO exercising power by giving directions to authorised officers under the Act.
So, if someone is detained that government official “must at least once every 24 hours during the period that a person is subject to detention …review whether the continued detention of the person is reasonably necessary to eliminate or reduce a serious risk to public health.”
Notwithstanding the State of Emergency, the Premier declared a State of Disaster at the beginning of August. That declaration was made under the Emergency Management Act 1986, which is intended to address emergencies beyond public health issues.
As with the Health Act, before the Premier was permitted to access the power in that Act and give it to the Minister for Police and Emergency Services, he was required to receive and act on her advice. The State of Disaster means that the two acts are operating concurrently. Two acts, and two sets of powers which are not the same.
Ms Mikakos declared a State of Emergency in March; Mr Andrews made his declaration of State of Disaster in August. Soon after, Police Minister Lisa Neville declared the suspension of the protections afforded for persons detained under the Health Act. Two weeks later, Ms Neville made two further directions on the same day, the first was an attempt to inexplicably replace the protections she took away earlier. In effect, Ms Neville, enacted legislation by executive fiat. The second direction was when the Minister offered powers to the police under the Health Act, authorising them to act.
READ MORE: States of emergency: the importance of maintaining the social contract
The Premier on the evening of 25 August said that an extension of the emergency powers was needed as an “insurance” which he can “draw down on only when necessary.” The Premier, regardless of criticism from the Opposition has no intention of throning himself as an overlord. However, the Opposition and the Independents do highlight the unprecedented and extraordinary nature of the request.
An ancient and effective insurance that guarantees our safety is the people’s house. In parliament our representatives scrutinise legislation on our behalf. We don’t often agree and there are diverse and habitually conflicting needs, however we the citizens are represented and protected through the parliamentary process.
Fotis Kapetopoulos was English editor of Neos Kosmos between 2007 and 2010 and was also the Multicultural Media and Assistant Policy Adviser to former Premier Ted Bailleu. He is now a senior contributor to Neos Kosmsos.