COVID Omnibus Bill - A Quick Guide

The COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 has passed the lower house of Victorian Parliament. It is a mix-and-match of minor and often arcane alterations, but hidden within its many pages are two egregious changes that potentially mean:

Any Victorian citizen can indefinitely detain any other Victorian citizen, based only on a suspicion that there is the thought of breaching a law in future, and with no right of appeal.

This “thought police” legislation is unprecedented in Australia and has no place in any Western liberal democracy – under any circumstances. It is certainly not necessary in Victoria now!

More specifically, two sections impose these infringements of citizens’ rights:

1.      New Part 13 inserted in the Public Health and Wellbeing Act 2008 (“PHW Act”)

2.      New Part 16 inserted in the Occupational Health and Safety Act 2004 (“OHS Act”)

In summary, these changes will enact the following changes to the lives of every Victorian:

1.      Allows any member of the public to be designated an Authorised Officer, and

Allows for unlimited detention where an Authorised Officer believes a person is unlikely to comply with an order in future.

a.      Anyone can now be appointed as an Authorised Officer by the unelected Department Secretary. Under the existing law, any public servant already qualified. This change expands the options to literally anyone they believe is appropriate.

b.      Any person that an Authorised Officer suspects is COVID-19 positive, or suspects is a “close contact”, can be summarily detained. The sole requirement is that the Authorised Officer believes that, in future, that person will likely breach an order issued under PHW Act. No breach is required, just the thought of a future breach!

c.      There is no firm limit to the duration of detention. It can continue indefinitely.

d.      Complying with an isolation requirement will not protect a person from summary detention. The definition of “high risk’ requires that the individual hasn’t been legally released from isolation, but even during isolation an Authorised Officer may indefinitely detain the person if they believe a future breach may occur. Note that Officers may legally enter any premises under Victorian emergency laws.

e.      Under this new Section, there is specifically no limit to the orders that can be used for detention. The relevant clause referenced in the PHW Act specifically states: “any other direction that the authorised officer considers is reasonably necessary”.

f.       The changes also remove protections under the PHW Act in s200(6), requiring that every 24 hours a review is undertaken to confirm whether “continued detention of the person is reasonably necessary to eliminate or reduce a serious risk to public health”. Now, if the Authorised Officer believes that continuing detention is reasonable, it is automatically deemed reasonable under the PHW Act!

g.      Two further protections, in s192 and s202, have been effectively repealed by the insertion of inverse language. These sections ensure that if a police officer wishes to deputise a member of the public to assist, they must receive approval from the Chief Commissioner. This is no longer the case – any police officer can now deputise any member of the public on the spot, without oversight.

Possible Example:

A civilian appointed as an Authorised Officer sees Person A in the street. The Officer thinks they recognise Person A, and believes them to possibly be a close contact of a COVID-19 patient. The Authorised Officer does not need to confirm these suspicions and detains Person A immediately believing that future compliance with the order to self-isolate is unlikely. Person A is ordered into home detention, indefinitely, and every 24 hours the Authorised Officer self-certifies that the detention remains reasonable. Person A has no clear pathway to appeal and no firm date for detention to end.

2.      Extends the OHS Act beyond its specified occupational health and safety intention, to now act as an instrument enforcing orders issued under the PHW Act.

a.      Under these changes, failing to comply with any direction issued under the PHW Act becomes an activity that involves an “immediate risk to the health or safety” of a person under the OHS Act.  This is an extreme OH&S designation in the Act.

b.      It allows that any “Inspector” so designated under the OHS Act can require any person to cease from, or engage in, any activity for any period of time.

c.      Non-compliance with any direction issued by any Inspector results in a huge fine and is also an indictable offence.

d.      While this addition to the OHS Act expires in April 2021, there is no stipulation that the directions issued under it also expire. Thus, a direction issued has no expiry date.

Possible Example:

An OHS Inspector sees Person B getting a coffee for half an hour in the morning, and then sees them walking laps of the park in the afternoon. The OHS Inspector believes that Person B has been out of home for more than two hours. On this basis the Inspector decides that Person B is in breach of an order issued under the PHW Act. The Inspector uses the OHS Act to formally direct Person B to remain home indefinitely, until the Inspector is satisfied that they no longer pose “an immediate risk to health and safety”. If Person B at any point leaves their house, they risk a huge fine and criminal prosecution for committing an indictable offense. Although the clause in the OHS Act expires in April 2021, the direction under which Person B is confined does not and their release still requires that the Inspector is satisfied.

In conclusion, the passage of this Omnibus will create a State in which vast numbers of civilians can be deputised as Authorised Officers, free from oversight, with the power to summarily and indefinitely detain fellow citizens based only a suspicion that someone is high risk, and a belief that they are thinking about a breach in future. Citizens have no clear right of appeal.

It also converts the unrelated OHS Act into an enforcement device for the PHW Act, and empowers its Inspectors to detain citizens without oversight for an unlimited period of time.

It is unnecessary. It is oppressive. It contravenes the Australian way of life.

IT MUST NOT BE PASSED.

Disclaimer: This document is intended as background information only, and while all care has been taken to ensure that the information is correct, the contents should not be relied upon. Seek qualified legal opinion.