Lawyers Against Covid-19 By Ian Wilson LL.B
I have written with frustration about the lack of movement of the legal fraternity about the increasing legal totalitarianism of Victoria. But now I am pleased by recent developments as there is growing opposition at the 11th hour.
“An eminent group of retired judges and high-powered Queen’s Counsels has written an open letter calling on the Victorian Parliament to reject legislation that makes it easier to detain people during the coronavirus pandemic. Eighteen legal figures have taken the unusual step of coming together to launch a scathing attack, warning the Andrews Government’s COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 (Bill) endangered the freedoms of Victorians. “We are deeply concerned by the passage of the … Bill through the Legislative Assembly,” the letter states. “The Bill would also allow any person the Secretary considered appropriate to be authorised to exercise emergency powers. There would be no requirement that persons authorised be police officers, or even public servants. “Authorising citizens to detain their fellow citizens on the basis of a belief that the detained person is unlikely to comply with emergency directions by the “authorised” citizens is unprecedented, excessive and open to abuse. “We call on the Legislative Council to amend the Bill, or to vote against it.” Retired High Court judge Michael McHugh, AC QC, and former Federal Court judges Peter Heerey, AM QC, and Neil Young, QC, headline the list of respected legal figures who have signed the letter. Other QCs who have joined the push are; James Peters, Peter Collinson, Maryanne Loughnan, Mary Anne Hartley, Philip Crutchfield, Georgina Schoff, Philip Solomon, David Batt, Stuart Wood, Felicity Gerry and Michael Borsky. After The Australian broke the story this morning, four more QCs added their names to the letter; Ross Gillies, Jennifer Batrouney, Rachel Doyle and Paul Hayes.
Earlier this month, the Andrews Government introduced the controversial legislation into the Legislative Assembly, where the bill is currently being debated. The government has the numbers in the Lower House to force the bill through, but will need the support of crossbench to have it pass through the Legislative Council. The primary concern of the Group of 18 is the bill widens the type of person who will have the powers to detain Victorians, and also gives them the authority to do so on a pre-emptive basis. “Emergency powers already allow authorised officers under the Public Health and Wellbeing Act 2008 (Vic) to detain people and to restrict movement,” the lawyers write. “The Bill would expand the emergency powers to allow an authorised officer to detain: “Any person that the authorised officer reasonably believes is likely to fail to comply with an emergency direction and is a close contact of a person diagnosed with COVID-19 (or a person diagnosed with COVID-19) not given clearance from self-isolation, “For so long as the authorised officer reasonably believes the person in detention is likely to fail to comply with an emergency direction.” Victorian Premier Daniel Andrews said he agreed that the authorised officer provisions in his omnibus bill were “unprecedented”, but not that they were “excessive and open to abuse”.
That is the kicker, the legislation is as excessive as any legislation could be. The issue now is that if dictator Dan does go ahead, how would a legal challenge proceed? We are in territory totally unchartered for Australia, and I have grave fears about the strength and soundness of our High Court, which has been a centralist entity since Federation. But, what else can be done?