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Fairer pandemic laws for Victoria

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Samantha Ratnam
Leader of the Victorian Greens
17 November 2021

On 16 November 2021, Dr Samantha Ratnam gave a speech in parliament about the Victorian Government's Pandemic Management Bill and how the Greens have secured important improvements to the Bill, which strengthen fairness, transparency and scrutiny over government decision-making. 

 

DR RATNAM: I rise to speak on the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021.

We all have our stories of the COVID pandemic—of people we know getting sick, of people dying, of people who lost their jobs or their business, of people who have lost their homes, of kids’ schooling interrupted and of people missing funerals of loved ones or not seeing their families for years. My little daughter has spent her whole life so far in a pandemic. Our lives individually and collectively have been turned upside down. The experiences of multiple lockdowns in Melbourne are seared in our collective consciousness. It has been the toughest couple of years many in our community will have gone through. It is also important to acknowledge that the impacts of the pandemic were not equally felt.

The pandemic exposed a number of systemic inequalities in our society. The insecure nature of work put many workers in a particularly vulnerable position, in terms of both increased risk of getting sick and also of course to losing work. Multicultural communities were often on the front lines, yet governments were very slow in providing accurate and timely translated materials, providing assertive outreach and listening to and understanding the unique challenges they experienced in the face of a pandemic and restrictions.

We saw the second wave of COVID sweep through aged-care homes with hundreds of deaths, while the delta strain threatened the viability of our health system. The extraordinary way Victorians have gone out to be vaccinated means we have hopefully put the worst of the COVID-19 pandemic behind us, with restrictions continuing to ease. However, it is important to note that disabled people and those with weakened immune systems will continue to need to be protected by the sort of collective action that Victorians displayed during this pandemic—staying home when sick, wearing masks and getting vaccinated.

The Greens have not agreed with every decision the government has made during the pandemic.

We have advocated strongly for more support for renters, workers, people on income support, different industries and businesses. We shared the horror of many at the way the government handled the public housing lockdown and advocated for stranded Victorians to be allowed home.

Through it all as a society we have had to navigate some truly important questions, including how to balance the collective public health of our community with the curtailment of some individual rights. That tension is at the heart of the debate today as we continue to face a global pandemic.

Before I get to the details of the bill and the important provisions the Greens are pleased to have helped secure, I want us to remember why we are debating this. We are still in the middle of a major global public health crisis. Victorians are still getting sick in their thousands. Our hospitals are full of people with COVID, and over 400 Victorians have died just in the last wave.

Up until now the government has relied on the state-of-emergency powers to manage this crisis. I think there is general agreement that continuing to rely on the state-of-emergency powers is not the preferred option for ongoing management of the pandemic. So my Greens colleagues and I took up the opportunity, alongside Ms Patten and Mr Meddick, to put ideas to the government about what should be in pandemic-specific legislation.

We were guided by the need to improve the transparency, accountability and fairness of the legal framework for managing the balance between public health and human rights as we deal with keeping people safe in the midst of a public health crisis. We have been in close contact with human rights groups and legal groups—groups that deal with genuine human rights issues all the time, not just when convenient—and put a number of proposals to the government about what should be in this bill.

Many of those proposals are now in the legislation. Further, once the bill was tabled and we were all able to see it, we once again worked with human rights and legal groups to propose amendments, many of which the government will be putting to the chamber in the course of the debate.

For the last two years we have been in a position of trusting the Chief Health Officer and the government that the restrictions put in place were necessary and proportionate. We have been extremely fortunate in Victoria to have had an excellent Chief Health Officer in Brett Sutton, but we have not been able to see the health advice underpinning the restrictions. It is really important that the community knows why a government is making the decisions it is making, and the more significant the decision, the more important transparency is. This bill delivers this with all pandemic orders. The reasons for the orders, the health advice the orders are based on and the human rights assessments are all to be made public and tabled in Parliament. Amendments to be moved by the government this week reduce the time frame for making this information public from 14 to seven days. The sooner we all know, the better.

The Greens put on the table early the need for independent oversight of pandemic orders to sit alongside parliamentary oversight. As we know, confronting the pandemic has required public health directions that are far reaching. The independent advisory committee will include experts on public health, epidemiology and human rights, and people able to advise on the impacts of the public health orders on the community. The committee will have the right to review any pandemic orders it wants, and its advice will be made public.

The independent advisory committee will help ensure public confidence that the decisions being made are proportionate and necessary. And if they are not, then the pressure will be on the government to change them. The committee will operate as a vital means for the community to be able to hold the government to account for the decisions it is making that affect us all.

As I alluded to earlier, the pandemic has brought to the surface many of the inequalities our society faces, and during the course of the pandemic we have seen a disproportionate number of people from disadvantaged backgrounds fined under COVID directions. Many of them are just unable to pay the significant fines, leaving them with unfair debt. The fines system under the current laws does not support good public health outcomes.

A fairer fines system was a crucial element that the Greens sought to secure in our negotiations. Passing almost unnoticed in the commentary on this bill is a revolutionary criminal justice reform: a lower rate of fines for people on benefits. For the first time in Victoria rich and poor will not all be paying the same-sized fine, something which never made sense to us. The bill also contains an expansion of the special-circumstances test that will mean people facing disadvantage can have their fines removed. This reform will apply to all fines, not just COVID fines. We also negotiated a halving of the fines in the bill, noting the original fines were much too high. I want to thank the Attorney-General in particular for being open and willing to pursue these important reforms.

The Greens have also been pushing the government for months to protect QR code data and other contact-tracing data. In the new pandemic legislation such information can only be accessed for public health purposes. The police cannot have access to such data for any criminal investigations. This reform is about giving everyone in the community confidence to keep using the check-in system for our collective safety.

Now turning to the more controversial aspects of the bill, the declaring of a pandemic and the making of pandemic orders, one of the concerns raised by legal and human rights groups was that there was not an objective threshold for the Premier to meet in declaring a pandemic. We fixed that yesterday, with the government agreeing to move an amendment to include the objective test of reasonableness into the relevant provisions. This is important for a few reasons, but one is that it will make it easier for the declarations to be challenged in court if the need arises.

It is important that public health experts continue to be at the heart of our pandemic decision-making, and they will be under this bill. While the Minister for Health will be making the orders, they will do so based on the advice of the chief health officer, which will be public, and these orders will also be reviewed by an independent panel of public health experts, epidemiologists and human rights experts. We do support the notion that the person exercising such extraordinary powers in a democracy should be accountable to the Parliament and the people. This is not the case under the state-of-emergency powers.

Two further amendments I want to specifically mention are: the clarification that the Charter of Human Rights is intended to apply to all decisions and actions taken in accordance with this bill—this is entrenching human rights in the management of pandemics to a much greater degree than would exist without this bill; and, following on from that, amendments to deal with the genuine concerns raised about orders applying to people in relation to protected attributes—we are very glad the government will be clarifying this provision and removing references to the Equal Opportunity Act 2010. Equally, we are pleased the government has committed to protect the right to safely protest in the compliance and enforcement guidelines made under the bill.

We do, however, remain concerned with some aspects of the bill.

We would have liked to have seen a process for independent merits review of detention, as called for by the Ombudsman. We will continue to advocate for this, and the review of this legislation will provide another opportunity to convince the government of the need for this reform.

Further, we have remained concerned about the impact of the pandemic on renters and the risks of homelessness. The eviction moratorium was important, but it should have been reintroduced for the delta lockdown. And indeed ongoing protection from eviction and rent increases for those impacted by COVID is something we continue to fight for. But the reality is there are more checks and balances in this bill than the current status quo and indeed any other similar legislation across the country.

I want to thank the government, and in particular the Health Minister and Attorney-General, for the constructive way they have engaged with us over the last few months; my crossbench colleagues Fiona Patten and Andy Meddick; and my Greens colleague Tim Read. I also want to recognise the work of the Human Rights Law Centre, the community legal centre sector and the groups advocating for fines reform, Liberty Victoria, the Centre for Public Integrity and all others who have helped us push the government for the important accountability, transparency and fairness measures in the bill.

Finally, I wish to make some comments on the campaign against this bill. Many of the emails I have received in the past few weeks have demonstrated, I think, a very genuine fear, and I understand that people are scared. We have all just been through a very difficult and uncertain time, and that uncertainty is not yet over. The pandemic is not over, the economic consequences of the pandemic are not over and neither are the social or community impacts. But what I have also noticed is that almost every email or phone call or social media message has contained some form of misinformation, conspiracy theory—whether it is an anti-vax conspiracy theory or something else—or some form of gross misrepresentation of the legislation we are debating.

This campaign to oppose this bill has been a campaign to deliberately and maliciously take advantage of people’s fears and uncertainties and whip them up to a genuinely heightened state of terror, quite disconnected from the reality of what is actually happening in Victoria now and indeed the reality of this bill. The misinformation campaign has reminded me of that game Whack-a-Mole. As soon as one is addressed, three more pop up, each more disconnected from what is actually in the bill than the last.

Of course not everyone protesting this bill is a member of the far right, but we are being naive if we do not recognise that the far-right actors and Trumpian populists have been instrumental in organising the protests and circulating lies about this bill. The pandemic has undoubtedly provided a breeding ground for conspiracy theorists and Trump-like populists to weaponise that fear. It is a politics of division that thrives in these uncertain times. What we should be doing is meeting those fears and worries and looking at how we rebuild from this traumatic event. Brett Sutton was right yesterday speaking about the need for a recovery period.

But it is no surprise that the Liberal Party has thrown its lot in with the conspiracy theorists and the divisive politics of the Trumpian right. They have consistently sought to undermine a public health response to a global pandemic and have no hope to offer, only fear—a return to form for the latest Leader of the Opposition.

We are hearing a lot about democracy in this debate, and right now we have a choice about what sort of democracy we want. How resilient is it to fear campaigns whipped up by the far right? How much do we believe that the truth is important in the debates and disagreements that we have? Should nooses and threats of violence have a place in our democracy? From what I am seeing, our democracy is vulnerable. It is vulnerable because people in this place are prepared not just to be bullied and cowed by the far right and anti-democratic populism but indeed to legitimise and amplify it. It was completely irresponsible for members of this chamber not to condemn that threat on our lives when those gallows and the three hanging nooses were dragged through the city streets over the weekend as they spoke at those rallies.

Everyone has the right to protest, but no-one has the right to threaten or intimidate others. Any elected representative who sees those acts and refuses to speak out is aiding and abetting this violence, and it makes you unfit to hold a position of leadership.

We have seen those same people decry that these proposed pandemic laws are a gross violation of our human rights, and they oppose these laws because they do not meet their threshold for the protection of human rights. They even claim that it is others who are selective about when they speak up for human rights.

But where are those so-called freedom fighters and human rights champions when 46 men continue to be detained at the Park Hotel for being refugees? Nowhere.

Where are they when hundreds of asylum seekers are shipped off to prison islands on Nauru and Manus Island indefinitely? Nowhere.

Where are they when tens of thousands of Victorians are denied the right to housing and end up homeless? Nowhere.

Where are they when children as young as 10 are imprisoned in this country and when hundreds of women and First Peoples are kept on remand without charge? Nowhere.

What has been sorely missing from those who oppose the public health measures is the acknowledgement that we live in a society, in a community, with other people, and that means we also have a right to health and a responsibility to care for each other, especially those who may be at greater risk, in this case in the face of pandemic.

Perhaps what I have found most disturbing about the campaign against this bill is the misleading rhetoric that has been deliberately designed to make people scared. There are people on the steps of this Parliament tonight who genuinely believe, because they have been misled by organised forces, including people in this chamber, that we are on the verge of a dictatorship in Victoria. But as one of the few people in this chamber who has actually lived through civil unrest and oppressive regimes, I can tell you this is not it. But what is happening and what I am scared about is if the threats and the targeting and the hanging nooses in the street continue to be legitimised and amplified, then our community in Victoria is at risk.

History has shown us what happens if we do not recognise and respond to this threat, so we must name it, we must denounce it and we must now focus on how we help our community heal, recover and come together.

Now the MPs in this chamber are faced with a choice: to pass the pandemic bill with amendments, to extend the state of emergency or to do neither.

Since the pandemic bill grants similar public powers to the current state of emergency but with important measures that significantly improve transparency, accountability and human rights protections, I will be voting for this bill. It is certainly better than having no public health powers at all. Whether the next threat will be a new coronavirus variant that beats the vaccine or an entirely new organism, our governments need power to control pandemics when they strike. Victoria was potentially one vote away from having no ability to counter the deadly delta wave earlier this year.

My vote again will be for protecting the public health of all Victorians, this time under a vastly improved legal framework.

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Samantha Ratnam
Leader of the Victorian Greens
17 November 2021
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WHAT I'M FIGHTING FOR


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