Victorian Bar Association president slams Dan Andrews’ pandemic power grab


Dan Andrews’ pandemic power grab has been torn apart by the Victorian Bar legal association, which has ‘grave concerns’ about the premier’s ‘draconian’ new laws.

Bar president Christopher Blanden QC launched an unprecedented attack on the new state of emergency legislation now going through the Victorian Parliament.

And he flatly denied a government claim that the Bar was consulted on the new law, calling it a ‘gross misrepresentation’.

The widespread concern about the extent of the premier’s push for total control has also been echoed by basketball legend Andrew Bogut in a series of tweets.

‘Wake up Victorians,’ he posted ‘This just gets worse and worse. Still stand with Dan?’ 

Dan Andrews’ pandemic power grab has been slammed by the Victorian Bar legal association who have ‘grave concerns’ about the ‘draconian’ new laws for the premier (pictured)

Under the new laws which were tabled in parliament on Tuesday, the premier can call a pandemic at any time, which gives the government almost unlimited power.

The state government would no longer be required to have the decision approved by the chief health officer, and there wouldn’t even need to be a single case in Victoria.

The sweeping new laws would see rule-breakers fined up to $454,350 or jailed for two years, and anyone could be fined up to $21,909 just for protesting.

Victorians would also face the hefty fine for not wearing a mask, breaking a movement limit, refusing to get tested or failing to show ID.

The Victorian Bar warned the bill hands the health minister ‘effectively unlimited power to rule the state by decree, for an effectively indefinite period, and without effective judicial or parliamentary oversight.’

Victorian Bar President Christopher Blanden also warned the proposed new laws would give police power to enter property without a warrant and deny Victorians the right not to self-incriminate. (Pictured, police tackle a protestor in Melbourne earlier this month)

Victorian Bar President Christopher Blanden also warned the proposed new laws would give police power to enter property without a warrant and deny Victorians the right not to self-incriminate. (Pictured, police tackle a protestor in Melbourne earlier this month)

Mr Blanden added: ‘On an initial reading of the bill, the Victorian Bar has grave concerns… the scope of the power is extremely broad.

‘The bill confers powers that can be appropriately described as draconian in authorising virtually unlimited interference with the liberties of Victorian citizens.’

The Bar fears the new laws give the government unrestricted powers without any effective oversight to hold it to account. 

It also allows the government to target any specific section of society, whether it’s race, religion, age, gender or even just political rivals. 

‘The minister may make “any order” that the minister “believes is reasonably necessary to protect public health”,’ Mr Blanden said, quoting the bill.

‘The content of the orders is effectively unlimited [and] the Bill expressly allows the Minister’s orders to discriminate [against], among many others, political beliefs.’ 

Even trying to legally challenge public health orders made under the new legislation in the Supreme Court could be almost impossible, he warned.

Because of the wording of the legislation, the health minister only has to prove he believed any disputed public health order was required, for it effectively to be legal.

The widespread concern about the extent of the premier's push for total control has also been echoed by basketball star Andrew Bogut (pictured) in a series of tweets

The widespread concern about the extent of the premier’s push for total control has also been echoed by basketball star Andrew Bogut (pictured) in a series of tweets

The Australian basketball star posted a series of tweets attacking the new laws including one seen here warning: 'Wake up Victorians, This just gets worse and worse. Still stand with Dan?'

The Australian basketball star posted a series of tweets attacking the new laws including one seen here warning: ‘Wake up Victorians, This just gets worse and worse. Still stand with Dan?’

Mr Blanden also warned the proposed new laws would give police power to enter property without a warrant and deny Victorians the right not to self-incriminate.  

‘The bill lacks the appropriate checks and balances to ensure the proper exercise of these powers,’ Mr Blanden said. 

‘This represents the biggest challenge to the rule of law that this State has faced in decades.’

He insisted the Bar had not agreed or even been consulted on the legislation, despite government claims.

A specific workshop on the new bill, planned for last month, was cancelled at the last moment, he said, and the Bar was never given an advance copy of the legislation.

The Bar questioned why the government was in such a rush to push the legislation through ahead of the current state of emergency ending in December.  

‘A reasonable period for discussion and debate over the provisions of this Bill was and is necessary,’ Mr Blanden said.

‘It is unclear why a bill related to issues of management of future pandemics is being subject to a rushed and/or severely curtailed consultation process. 

‘There is simply no excuse for pushing it through in the way it has been.’

Australian basketball legend Andrew Bogut directed ab almighty spray at Mr Andrews for his power grab and questioned why anyone would vote for him.

‘Mighty glorious leader Dan Andrews can lockdown the community for 3 months at a time, even if no CASES of the new in vogue virus/disease are in community,’ he wrote.

‘People actually support this man.’

Bogut then suggested that the massive new fines for not wearing a mask in the new legislation retroactively apply to the premier, who was pinged twice in two days earlier this month.

‘Can we retroact the mask breach and jail time thing please? Intro 1st October 2021? I believe a certain Premier was caught maskless a week or so ago. TWICE,’ he wrote.

‘Only fair that should be double jail time, no? Four years sounds about right.’

Daniel Andrews' controversial new laws to manage pandemics could see rule-breakers jailed for two years and fined up to $454,350

Daniel Andrews’ controversial new laws to manage pandemics could see rule-breakers jailed for two years and fined up to $454,350

Under the new legislation, businesses can be fined up to $109,044 for breaking rules which may include failing to make sure customers check-in or show proof of vaccine status.

In addition, there is a new aggravated offence for breaches that ’cause a serious risk to the health of another individual’.

These can be punished with a $90,870 fine and two years in jail. An example given in the bill is someone going to work when they are infectious and should be isolating.  

What are the fines in Daniel Andrews’ new law? 

 $21,909: This fine is or breaching a pandemic order such as not wearing a mask, breaking a movement limit, attending an illegal protest or a gathering, refusing to get tested or failing to show ID.

$90,870: This fine is for an aggravated offence for breaches that ’cause a serious risk to the health of another individual’ such as going to work when  infectious.

$109,044: This fine is for businesses breaking rules which may include failing to make sure customers check-in or show proof of vaccine status.

$454,350: This fine is for an ‘aggravated’ offence by a business such as encouraging customers to flout lockdown rules .

Businesses can also be guilty of an aggravated offence, with a maximum fine of $454,350 if, for example, they refuse to obey a lockdown and encourage customers to also flout the rules.

In a heated debated in parliament on Wednesday, which involved shouting across the chamber, shadow attorney-general Tim Smith said: ‘This is nonsensical, it’s an abuse of power.

‘It’s a disgraceful mistreatment of our democratic traditions giving the dictator dictatorial powers and you think that’s great. You think it’s absolutely fantastic giving the dictator the ability to rule by decree,’ he said in reference to Daniel Andrews.

Opposition MP Louise Staley said the 113-page bill was ‘the largest I’ve ever seen’ and said politicians have not been given enough time to scrutinise it. 

‘To be brought into this place and then be told they will be debating it later this day is a complete and utter assault on democracy,’ she said.

The Victorian Labor Government – which introduced the Public Health and Wellbeing (Pandemic Management) Bill 2021 in the state Parliament on Tuesday – accused the Opposition of being ‘hysterical’ and peddling ‘misinformation’. 

In its explanation of an ‘aggravated’ offence, the bill says: ‘This aggravated offence is intended to cover non-compliance in egregious circumstances where there is an aggravating factor of the person knows, or having ought to have known, that the non-compliance is likely to cause a serious risk to at least one other individual.

‘Similarly, the conduct of a business failing to comply with safety protocols and other directions given in order to limit the spread of a pandemic disease and actively encouraging non-compliance by customers may amount to an aggravated offence. 

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‘The offence is not intended to apply to minor or routine breaches that do not create a serious risk to the health of an individual, such as minor breaches of face mask requirements, and is not intended to be used as a tool to manage peaceful protests.’

The Victorian Opposition has described the laws as an ‘attack on democracy’ and vowed to oppose them at every turn. 

‘Under these laws Victorians face a $21,909 fine for failing to wear a face mask and business a $109,044 fine if a customer fails to check-in properly,’ Opposition leader Matthew Guy said. 

The bill has been drafted after consultation with three crossbench MPs to guarantee it will pass this week or next month despite the opposition from the Liberals and Nationals. 

The new laws will replace the state of emergency powers which expire on December 15 when they will have been in place for 21 months.  

The new laws, which the premier hopes to pass next month despite fierce opposition, state a person can be fined $21,909 for breaching a pandemic order such as not wearing a mask. Pictured: The Queen Victoria Market in Melbourne

The new laws, which the premier hopes to pass next month despite fierce opposition, state a person can be fined $21,909 for breaching a pandemic order such as not wearing a mask. Pictured: The Queen Victoria Market in Melbourne

The Opposition fears they could be used to re-impose lockdowns in the near future. 

‘These new laws aren’t about streamlining State of Emergency powers but about making it easier for the state government to control people’s lives,’ Mr Guy said.

‘Daniel Andrews wouldn’t be passing these laws unless he planned on using them. 

‘The thought of handing even more power to the person who got us into this mess is simply unacceptable.

‘This extreme legislation is a threat to every Victorian family, small business and local community. It must be stopped.’ 

Victoria recorded 1,534 new Covid-19 cases and 13 deaths on Wednesday. 

Associate Professor Maria O’Sullivan from Monash University said she was not aware of any precedent for an aggravated offence for breaching public health orders.

She also raised concerns the bill allows the premier to declare a pandemic for an unlimited time. 

‘So, ostensibly, the public health emergency could go on indefinitely… that would be of concern to me,’ she told the ABC. 

Three-month lockdowns 

Under the new laws the premier would be able to declare a pandemic for an unlimited time, with an extension required every three months.

The health minister will be able to sign off on public health orders instead of the Chief Health Officer, a role currently held by Brett Sutton. 

This gives the health minister the power to enforce lockdowns, shut down businesses, restrict movement, require masks, ban public gatherings, and enforce quarantine and isolation – powers currently held by the unelected CHO.

These powers can be implemented regardless of the number of disease cases or severity. 

The bill will also extend the mandatory payment for hotel quarantine beyond 31 December.  

Vaccine mandates and lockdowns for anti-vaxxers

The bill states that a pandemic order such as a lockdown or a vaccine mandate ‘may apply to, differentiate between or vary in its application to persons or classes of person’.

This allows the Government to select who it wants to apply the order to, including people who have been at a certain event, who live in a certain area or who have a certain type of job. 

The Government can discriminate based on ‘presence in a pandemic management area; participation at an event; an activity they have undertaken; their characteristics, attributes or circumstances,’ the bill says. 

It also allows the Government to lockdown unvaccinated people only. 

Under the new laws the premier would be able to shut down businesses, restrict movement and ban public gatherings even if there were no disease cases in Victoria. Pictured: A protestor is arrested by police at a protest in St Kilda on Saturday

Under the new laws the premier would be able to shut down businesses, restrict movement and ban public gatherings even if there were no disease cases in Victoria. Pictured: A protestor is arrested by police at a protest in St Kilda on Saturday

The bill says the Government can discriminate based on attributes defined in the Equal Opportunity Act 2010 which include race, religion, sexual orientation, marital status and employment status. 

But Health Minister Martin Foley said those factors would not be taken into account.

‘Any suggestion that those other considerations of the public health processes, that is just really mischief making. These are recommendations that come forward on clinical and epidemiological grounds. Not those kinds of characteristics,’ he said.

Professor Brett Sutton said attributes and characteristics could refer to ‘intimate partners having the opportunity to see other individuals… people normally resident in regional Victoria… children under 16 years of age because they haven’t had a vaccination opportunity… vaccinated or unvaccinated individuals in a vaccinated economy.

‘You need the agility to spread to those characteristics and attributes that might exclude someone from a public health order and that might be directed at someone,’ he said.

Tiered fines system

In a small win for disadvantaged people, the bill will allow disadvantaged people to apply for a ‘concessional’ fine. 

Greens leader Samantha Ratnam negotiated this in discussions with the Government.

She said: ‘I’m pleased that the Greens have been able to make sure these new laws have more transparency and are fairer for all Victorians, especially those facing disadvantage.’ 

Barista Maelys is seen at work at Cafe Chez Mademoiselle in Prahran, Melbourne, last week

Barista Maelys is seen at work at Cafe Chez Mademoiselle in Prahran, Melbourne, last week

Make health advice public 

The Victorian Government has faced constant criticism for not releasing the health advice that its lockdown decisions are based on.

The bill will require the publication of the reasons for the Chief Health Officer recommending a pandemic order.

It will also establish an Independent Pandemic Management Advisory Committee to scrutinise Government decisions and health advice.   

Under the new laws the premier would be able to declare a pandemic for an unlimited time, with an extension required every three months. Pictured: Victoria Police earlier this month

Under the new laws the premier would be able to declare a pandemic for an unlimited time, with an extension required every three months. Pictured: Victoria Police earlier this month 

QR safeguards

The new laws will ensure stronger safeguards to stop unlawful access to QR code check-in or contact tracing data, with a new offence in place. 

It means police can only get hold of the data if there is an ‘imminent threat’ to someone’s life.

Officers must acquire a Supreme Court order to access the data.

This comes after it was revealed in June that police failed three times to get access to QR code data. 

Reaction to the law

Opposition leader Matthew Guy said he would throw out the laws if he won the November 2022 election. 

‘I’ve never seen such an attack on Australian democracy as rules like this’ where ‘one man can rule by decree,’ he told 3AW radio.

Frontbencher Tim Smith has fears Mr Andrews is passing the law in preparation for more lockdowns.

Chief Health Officer Brett Sutton (above) currently has powers to make special public health orders

The CHO powers would be passed over to health minister Martin Foley (above) under the new laws

The existing power of  Chief Health Officer Brett Sutton (left) to make special public health orders would be passed over to health minister Martin Foley (right) under the new laws

‘Daniel Andrews wouldn’t be taking more powers for himself unless he plans to lock us all down again,’ he said. 

The Opposition will propose a 60 per cent majority in both houses of parliament be required before a pandemic or an extended state of emergency can be declared.

Under the proposed alternative, the state of emergency powers and the need for them would have to be re-examined and voted on every 30 days. 

But Greens leader Samantha Ratnam backs the laws because she says they are better than the current state of emergency powers.

‘I’m pleased that the Greens have been able to make sure these new laws have more transparency and are fairer for all Victorians, especially those facing disadvantage,’ she said. 

Opposition leader Matthew Guy slams the new laws

Victorians are today witnessing the most extreme, dangerous and excessive laws ever brought before our state.

In one Bill, Daniel Andrews is attempting to sideline the Victorian Chief Health Officer and grant himself unchecked power to declare a State of Emergency and decree health orders based on an individual’s age, gender, sexual orientation and political belief or activity.

This legislation would remove any consideration of the impact of lockdowns, restrictions or penalties on equal opportunity or human rights laws, bypass Cabinet and Parliamentary approvals and place enormous power in the hands of one person.

Under these laws Victorians face a $21,909 fine for failing to wear a face mask and business a $109,044 fine if a customer fails to check-in properly.

These new laws aren’t about streamlining State of Emergency powers but about making it easier for the State Government to control people’s lives.

Daniel Andrews wouldn’t be passing these laws unless he planned on using them. The thought of handing even more power to the person who got us into this mess is simply unacceptable.

This extreme legislation is a threat to every Victorian family, small business and local community. It must be stopped.

The Victorian Liberal Nationals will stand up for Victorians and oppose this dangerous legislation. 

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