Bar says proposal to expand criteria and power of authorised officers may lead to breach of human rights
The Victorian Bar has raised concerns about the criteria for appointment and scope of power of authorised officers as part of the proposed amendments to the Public Health and Wellbeing Act 2008 made by the COVID-19 Omnibus (Emergency Measures) Bill 2020.
In a statement, the Bar said it has expressed its concerns to Attorney-General Jill Hennessy that the “broad and generic” criteria by which authorised officers may be appointed could potentially open the door for “untrained and unprofessional” individuals.
“This is of significant concern as it is imperative that the qualifications of these officers are relevant to the public health functions that they are intended to perform,” the statement said.
The Bar also warned that the proposed amendments allowed authorised officers to detain people who fail to “abide by a public health direction” based on their “reasonable belief,” which could lead to human rights violations.
“Unconstrained and undefined subjective powers naturally invite the tendency to exercise them to the fullest and in breach of human rights,” said Wendy Harris QC, president of the Victorian Bar.
would best be served if decisions made by authorised officers were reviewed by the chief health The Bar said the power to detain should be reviewed against an objective standard, adding that public interest officer or a senior delegate within a “short, stipulated period.”
“It is vital that, as the Government crafts powers to assist in the enforcement of public health and safety regulations, the individuals who are empowered to enforce those powers meet appropriate standards of professional knowledge and training, and the enforcement of those powers meets common and well-tested standards of objectivity,” Harris said. “This is essential in order that public confidence is retained in the enforcement of public health measures and that the rights of members of the community are protected.”
The Australian Bar Association (ABA) has expressed support to the Victorian Bar’s position on the proposed amendments.
“Whilst the Victorian Government needs to take appropriate measures to manage this extraordinary health crisis, these should not be implemented without appropriate oversight and protections,” said Matthew Howard SC, ABA president.
The COVID-19 Omnibus (Emergency Measures) Bill 2020, would allow the government to broaden its roster of authorised officers to include PSOs, WorkSafe inspectors, and non-government workers.
The bill has already passed the lower house but faces opposition in the upper house.
Once passed, authorised officers could detain people they suspect of being likely to spread COVID-19 or a close contact of an infected person. The rules could be applied to individuals who refuse self-isolation, or those deemed unable to safely quarantine, including severely drug-affected or mentally impaired people.
