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Public Health and Wellbeing
Amendment (Pandemic Management)
Bill 2021
Introduction Print
EXPLANATORY MEMORANDUM
General
The Public Health and Wellbeing Amendment (Pandemic Management) Bill
2021 ("the Bill") will establish a contemporary, fit-for-purpose regulatory
framework to enable the effective management of pandemics, including the
current COVID-19 pandemic. The Bill will introduce amendments to enable
the protection of public health from the serious threat posed by pandemic
diseases and diseases of pandemic potential. Most critically, the Bill focuses
on saving Victorian lives during pandemics, and promoting and protecting
the social, economic and mental welfare of Victorians to the greatest extent
possible during these confronting events.
The Bill amends Victoria's principal public health statute, the Public Health
and Wellbeing Act 2008, primarily by inserting a new Part 8A--Protection
of life and public health during pandemics. The main objective of the new
Part is to protect public health and wellbeing in Victoria by establishing a
regulatory framework for preventing and managing the serious risk to life,
public health and wellbeing presented by the outbreak or spread of pandemics
and diseases of pandemic potential.
The following are among the key features of the new Part 8A--
• the Premier is empowered to make pandemic declarations,
which enliven a range of powers in new Part 8A to respond to
pandemic diseases and diseases of pandemic potential;
• the Minister may make pandemic orders setting out public
health measures and restrictions to protect public health in
relation to a pandemic disease or disease of pandemic potential,
591316 1 BILL LA INTRODUCTION 25/10/2010
and the Minister is required to publish a statement of reasons
for making those orders;
• pandemic orders may include measures the Minister believes
are reasonably necessary to protect public health, with the use
of detention powers under new Part 8A being subject to strict
safeguards and review rights;
• both the Premier and the Minister must seek and consider the
advice of the Chief Health Officer in making a pandemic
declaration or a pandemic order respectively, and the advice of
the Chief Health Officer must be made available to Parliament
and the public;
• public health considerations are of primary importance in
making pandemic orders, however the Minister may also take
into account other matters, including social and economic
considerations in making a pandemic order;
• new Part 8A recognises the importance of the human rights
protected by Victoria's Charter of Human Rights and
Responsibilities and the Minister must publish an explanation
of any Charter rights that are or may be limited by a pandemic
order;
• an Independent Pandemic Management Advisory Committee
will be established to provide advice to the Minister in relation
to the exercise of powers under new Part 8A;
• authorised officers have a suite of pandemic management
powers under the new Part to assist in protecting public health,
including powers to support the implementation of pandemic
orders;
• provisions will better support information-sharing to protect
public health during pandemics, and strong safeguards are
included to ensure the protection of contract tracing
information;
• new offences and penalties are included for breaches of
pandemic orders and other requirements, including an
aggravated offence to deter the most serious conduct,
recognising the serious risks to public health that may result
from non-compliance.
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New measures will also be introduced to promote fairness for vulnerable and
at-risk communities, including a concessional infringement scheme and a
published compliance and enforcement policy to address the impacts of
enforcement on these communities.
The Bill is a crucial next step in the evolution of Victoria's COVID-19
response. It provides the State with a contemporary, fit-for-purpose
regulatory scheme with the appropriate powers and checks and balances to
protect the Victorian community from the dangers posed by pandemic
diseases or diseases of pandemic potential, while recognising and upholding
the human rights, accountability and proportionality imperatives that are so
important to democracy.
Victoria's current state of emergency, and the suite of powers it supports to
manage the pandemic and keep Victorians safe, expires on 15 December
2021 and cannot be extended beyond this period. The Bill provides a
regulatory framework that may be used for the ongoing management of the
COVID-19 pandemic and future pandemics, drawing on critical lessons
learned as part of Victoria's COVID-19 response.
The Bill will ensure Victoria's laws are well-adapted to respond to current
and future pandemics, by protecting the public health and wellbeing of
Victorians from the serious risks to life, public health and wellbeing posed by
pandemic diseases and diseases of pandemic potential.
Clause Notes
Part 1--Preliminary
Part 1 provides for preliminary matters, including purposes and
commencement.
Clause 1 sets out the main purposes of the Bill, which are to amend the
Public Health and Wellbeing Act 2008 in relation to the
effective management of pandemics; to amend the Public Health
and Wellbeing Act 2008 in relation to fees for detention of
persons in quarantine during the COVID-19 pandemic; amend
the Infringements Act 2006 to broaden what constitutes special
circumstances in that Act and the Fines Reform Act 2014 and to
make consequential amendments to those Acts for the purposes
of the concessional infringement scheme in the Public Health
and Wellbeing Act 2008; and to make consequential
amendments to other Acts.
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Clause 2 sets out when the provisions of the Bill come into operation.
Subclause (1) provides that, subject to subclauses (2), (3) and (4),
the Act will come into operation on the day after the day on
which it receives the Royal Assent.
Subclause (2) provides for certain provisions of the Act to come
into operation on a day or days to be proclaimed. These are--
• Part 3, which sets out amendments relating to a new
concessional infringement scheme, and Division 3 of
Part 4, which sets out consequential amendments to the
Fines Reform Act 2014 related to that scheme;
• Division 2 of Part 5, which makes various amendments
relating to quarantine detention fees during the
COVID-19 pandemic;
• Part 6, which primarily amends the special
circumstances test in the Infringements Act 2006.
Subclause (3) provides that Division 2 of Part 4 comes into
operation on 16 December 2021. The Division makes certain
amendments and repeals to provisions of the Principal Act
relating to the COVID-19 state of emergency, which cannot be
extended beyond 15 December 2021.
Subclause (4) provides that if a provision mentioned in subclause
(2) does not come into operation before the day that is 12 months
after the day on which the Act receives the Royal Assent, it
comes into operation on that day. The forced commencement
date is primarily intended to ensure adequate time is available to
implement the concessional infringement scheme, including
necessary operational and IT changes to be made to enable
applications to be processed and reduced penalty amounts
applied to relevant fines. Most of the provisions of the Act will
commence on Royal Assent, including Part 2, which sets out
amendments relating to pandemic declarations, including by
inserting new Part 8A into the Principal Act.
Clause 3 provides that in this Bill, the Public Health and Wellbeing
Act 2008 is called the Principal Act.
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Part 2--Amendments relating to pandemic declarations
Clause 4 amends section 3 of the Principal Act to add new definitions,
amend existing definitions and to substitute existing
interpretative provisions in section 3 that relate to a number of
existing definitions in section 3.
Subclause (1) inserts into section 3(1) of the Principal Act new
definitions. Key new definitions include contact tracing
information, contact tracing purposes, disease of pandemic
potential, Independent Pandemic Management Advisory
Committee, pandemic declaration, pandemic disease, pandemic
management area, pandemic management power and pandemic
order.
Explanations for some of the important new definitions are
provided below.
A pandemic declaration has the meaning given by section
165AB(1). The making of a pandemic declaration enables the
use of certain powers under new Part 8A to manage pandemics
and diseases of pandemic potential. A pandemic declaration may
be made if the Premier is satisfied there is a serious risk to public
health arising from a pandemic disease or a disease of pandemic
potential. A pandemic declaration must specify the pandemic
management area, which is an area specified in a pandemic
declaration to be an area to which the pandemic declaration
applies.
The definitions of disease of pandemic potential and pandemic
disease are relevant to the making of a pandemic declaration.
The definitions of these terms are set out in new section 3(5)
and (6) respectively and explained below.
A pandemic order has the meaning given in new section
165AI(1). Pandemic orders are the key instruments that may be
made by the Minister when a pandemic declaration is in force to
impose measures the Minister considers reasonably necessary to
protect public health arising from a pandemic disease or a disease
of pandemic potential.
Authorised officers may be authorised by the Chief Health
Officer to exercise certain powers to manage the serious risk to
public health arising from a pandemic disease or a disease of
pandemic potential when a pandemic declaration is in force.
There are 2 categories of such powers--a pandemic
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management power means a pandemic management order power
or a pandemic management general power.
A pandemic management order power means a power under
section 165B(1)(a) or (b). These are powers that may be
exercised by authorised officers in relation to pandemic orders.
A pandemic management general power means a power under
section 165BA(1)(a) or (b). These are powers that are generally
available to authorised officers who are authorised to exercise the
pandemic management powers, and may be exercised
independently of there being a relevant pandemic order.
Subclause (2) amends the definitions of community transmission
in section 3(1) of the Principal Act. The current definition
defines community transmission in relation to COVID-19. The
amendments made by subclause (2) expand the definition to
apply in relation to any pandemic disease or disease of pandemic
potential. The definition is relevant to section 3(4), which is
amended by subclause (5) and is explained below.
Subclause (3) amends the definition of prescribed senior officer
to provide that a person or class of person who is an employee of
a health service may be prescribed as a prescribed senior officer
for the purposes of the Principal Act. This amendment supports
flexibility in responding to pandemics and in other circumstances
by enabling the Chief Health Officer and the Secretary to
delegate their powers, duties and functions under the Principal
Act to a skilled workforce of health service employees, without
those persons needing to be employed under the Public
Administration Act 2004.
Subclause (4) makes a grammatical correction in the definition of
serious risk to public health in section 3(1) of the Principal Act.
Subclause (5) substitutes section 3(4) of the Principal Act. That
section currently clarifies that, without limiting the definition of
serious risk to public health in section 3(1) of the Principal Act,
COVID-19 may pose a material risk of substantial injury or
prejudice to the health of human beings even when the rate of
community transmission of COVID-19 in Victoria is low or there
have been no cases in Victoria for a period of time. The
amendments made by subclause (5) expand this interpretive
provision to apply to any pandemic disease or disease of
pandemic potential for the purposes of the Act, to avoid doubt
that a pandemic disease or a disease of pandemic potential could
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still give rise to a serious risk to public health in these
circumstances.
Subclause (6) inserts new section 3(5) and (6) into the Principal
Act. These provisions set out definitions explaining when a
disease is a pandemic disease or a disease of pandemic potential
for the purposes of the Principal Act.
The definition of pandemic disease in subclause (5) clarifies
when an infectious disease is a pandemic disease for the purposes
of the Principal Act, recognising that a disease may be pandemic
at some times and not others (infectious disease is already
defined in section 3(1) of the Principal Act). The definition in
subclause (5) states that an infectious disease is a pandemic
disease at a particular time if, at that time, there is a pandemic
outbreak of that infectious disease. A pandemic outbreak may be
ongoing for a long period of time, for example the ongoing
global outbreak of COVID-19.
The word "pandemic" is not itself defined in the Principal Act.
It is intended to have its ordinary meaning and is generally
understood (as a noun) to mean an outbreak or epidemic of a
disease occurring over a very large area (such as an entire
country, or continent, or worldwide), typically affecting a large
number of people. Similarly, when used as an adjective in
relation to a disease, "pandemic" can be understood to refer to a
widespread (or global) outbreak of that disease.
Subclause (6) includes a definition clarifying when an infectious
disease is a disease of pandemic potential. This is an important
concept in new Part 8A as a pandemic declaration may be made
on the basis of a serious risk to public health arising from a
disease of pandemic potential (as well as a pandemic disease).
The definition covers infectious diseases that--
• have not yet given rise to a pandemic, but have the
potential to do so; and
• were previously pandemic diseases but are not at that
time pandemic diseases, but that have an ongoing
potential to (again) give rise to a pandemic.
This definition recognises that a disease may have pandemic
potential both before an outbreak of a disease and as a pandemic
disease abates. For example, the pandemic potential of
COVID-19 was recognised before a global pandemic was
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declared by the World Health Organisation. Similarly, even after
the pandemic phase of a disease has ended, there may be a risk of
new variants of the disease giving rise to a pandemic, or
measures to respond to that disease becoming less effective over
time, such that a disease may re-emerge as a pandemic disease.
Clause 5 amends section 19 of the Principal Act by inserting a new
section 19(1)(ab). This amendment enables the Secretary to
delegate powers, duties and functions to "any prescribed senior
officer". The definition of prescribed senior officer will be
amended by clause 4(3) to include employees of health services.
The effect of these amendments is therefore to enable the
Secretary to delegate powers, duties and functions to employees
of health services. This will ensure the Secretary is able to
delegate to this skilled workforce where appropriate, including to
utilise this surge capacity to assist in responding to a pandemic.
Subclause (2) amends section 19(5) of the Principal Act to clarify
that the power conferred on the Secretary by section 50 of the
Principal Act (which concerns the conduct of public inquiries by
the Secretary) may be delegated as set out in subsection (5),
despite subsection (1) as amended.
Clause 6 amends section 20A of the Principal Act. Section 20A is an
interpretative provision that concerns the Chief Health Officer's
exercise of public health risk powers and emergency powers
under sections 189(a) or 199(2)(a) respectively of the Principal
Act. Section 20A provides that the Chief Health Officer may
personally exercise those powers if the Chief Health Officer has
been appointed as an authorised officer and has authorised
officers to exercise those powers. Clause 6 inserts a new section
20A(aa) that ensures the Chief Health Officer can similarly
exercise the public health risk powers and the pandemic
management powers if the Chief Health Officer has authorised
the use of those powers under new section 165AW(2)(a).
Clause 7 amends section 21(b) of the Principal Act to provide that one of
the functions and powers of the Chief Health Officer is to provide
advice to the Premier on matters relating to public health and
wellbeing. Section 21(b) currently refers to the provision of
advice to the Minister or the Secretary. The amendment
recognises in particular the role of the Chief Health Officer under
new Part 8A to provide advice to the Premier in relation to the
making of a pandemic declaration.
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Clause 8 amends section 22, which provides for the Chief Health Officer's
power of delegation. New section 22(1A) enables the Chief
Health Officer to delegate the powers, duties or functions under
sections 165AW, 189 or 199 to an executive within the meaning
of section 4(1) of the Public Administration Act 2004 or a
prescribed senior officer. These sections relate to authorisation
of authorised officers to exercise public health risk powers,
emergency powers and pandemic management powers. Unlike
section 22(1), powers, duties and functions may be delegated
under section 22(1A) whether or not the person to whom they are
delegated is a registered medical practitioner. This amendment
recognises that a large number of authorised officers may need
to be authorised to effectively respond to a pandemic, including
broader classes of authorised officers permitted to be appointed
under Part 13 of the Principal Act currently, and new
section 165CN to be inserted by the Bill, such as police officers,
protective services officers, Worksafe inspectors, public sector
employees of other States and territories and designated health
service providers. Expanding the ability to delegate the power to
authorise these persons assists with efficiently operationalising a
pandemic response, if the Chief Health Officer considers it
appropriate to delegate this power.
Clause 9 amends section 28 of the Principal Act. The section currently
provides for the special powers that may be exercised by the
Secretary in respect of Councils and Council officers when a
state of emergency exists, including powers to direct Councils
and Council officers to perform duties and functions or to
exercise powers. The clause amends the section to provide for
the special powers to also be available to be exercised by the
Secretary when a pandemic declaration is in force. Clause 9
amends section 28 in 2 ways. First, clause 9(1) amends the
heading to the section to refer to a pandemic. Second,
clause 9(2) amends the body of section 28 to ensure that the
powers available to the Secretary under the provision may be
exercised during a pandemic as well as a state of emergency.
Clause 10 amends section 30 of the Principal Act to enable the Secretary,
by instrument, to appoint an employee of a health service to be an
authorised officer. This amendment ensures there is flexibility to
draw on the skills and expertise of this workforce to assist in
dealing with public health risks, including (but not limited to)
responding to pandemics.
9
Clause 11 amends section 54(b) of the Principal Act. That provision
currently provides that Division 4 of Part 5 of the Principal Act,
which deals with collection and disclosure of information,
prevails over other provisions of the Act dealing with the same
matters to the extent of any inconsistency. The amendment
clarifies that Division 4 of Part 5 does not prevail over Division 7
of new Part 8A (which deals with information sharing) and
Division 8 of new Part 8A (which sets out safeguards for contact
tracing information). This ensures the powers and safeguards in
Divisions 7 and 8 of new Part 8A prevail to the extent of any
inconsistency.
Clause 12 inserts a new Part 8A into the Principal Act to establish a
regulatory scheme for the management of pandemics and
diseases of pandemic potential.
Part 8A--Protection of life and public health during
pandemics
New Part 8A establishes a regulatory framework for the
protection of life and public health during pandemics. The new
Part establishes a range of new mechanisms, powers, duties and
protections to ensure an effective framework to respond
effectively to pandemic diseases and diseases of pandemic
potential, while also ensuring transparency and accountability in
decision-making.
Division 1--Objects and interpretation
Division 1 of new Part 8A sets out the objective of the new
Part 8A, and other provisions to assist interpretation.
New section 105 specifies the objective of new Part 8A. The
objective of the Part is to protect public health and wellbeing in
Victoria by establishing a regulatory framework for--
• Preventing and managing the serious risk to life, public
health and wellbeing presented by the outbreak or
spread of pandemics and diseases of pandemic potential.
This objective recognises the serious risks that may
arise from these diseases and the paramount need to
protect public health, including to prevent loss of life.
• Supporting proactive and responsive decision-making
for the purposes of preventing and managing the
outbreak or spread of pandemics and diseases of
pandemic potential. This objective recognises the need
10
to respond quickly and decisively to address the serious
threat that may posed by these diseases.
• Ensuring that decisions made and actions taken under
new Part 8A are informed by public health advice and
other relevant information, including but not limited to
advice given by the Chief Health Officer. This
objective recognises that public health responses should
be properly informed by relevant advice and
acknowledges the important role of the Chief Health
Officer in providing expert advice.
• Promoting transparency and accountability in relation to
decisions made and actions taken under this Part. This
objective recognises the important public interest in
understanding how decisions and actions, that are taken
to protect public health but may significantly impact
large numbers of people, are taken under the new Part.
• Safeguarding contact tracing information that is
collected when a pandemic declaration is in force. This
objective recognises the importance of ensuring public
trust in the contact tracing system by carefully
safeguarding this information from misuse.
New section 165A(2) states Parliament's intention that in the
administration of new Part 8A, any limitations on the human
rights protected by the Charter of Human Rights and
Responsibilities should be demonstrably justified in accordance
with section 7(2) of the Charter. As the response to the
COVID-19 pandemic has made clear, effectively responding to
public health risks arising from a pandemic may necessarily
involve restrictive measures to be imposed in order to protect
public health and promote the right to life in section 9 of the
Charter. Such measures may limit other Charter rights.
Section 7(2) of the Charter provides that human rights may only
be subject to such reasonable limits as can be demonstrably
justified in a free and democratic society based on human dignity,
equality and freedom, and taking into account the relevant factors
specified in the Charter. New section 165A(2) confirms the
critical importance of these rights and that any limits on these
rights should be demonstrably justified in responding to
pandemic diseases and diseases of pandemic potential under the
new Part 8A.
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The objective of the new Part 8A and interpretive provisions
operate in addition to the existing objective of the Principal Act
and the principles in Part 2 of the Principal Act. These objectives
and principles have been and will continue to be important
considerations to inform Victoria's response to COVID-19 and
any future pandemics, and include--the principle of evidence
based decision-making; the principle of primacy of prevention;
the principle of accountability; the principle of proportionality;
and the principle of collaboration.
Division 2--Pandemic declarations
The making of a pandemic declaration enables the use of certain
powers under new Part 8A to respond to pandemic diseases and
diseases of pandemic potential.
Division 2 of new Part 8A contains provisions concerning
pandemic declarations, including in relation to--
• the making of pandemic declarations;
• the form and content of pandemic declarations;
• when pandemic declarations are in force and not in
force;
• variation, extension and revocation of pandemic
declarations;
• notification of pandemic declarations;
• reporting to Parliament in respect of pandemic
declarations; and
• tabling of reports in Parliament in respect of pandemic
declarations.
New section 165AB sets out the power of the Premier to make a
pandemic declaration. Subsection (1) provides that the Premier
may make a pandemic declaration if satisfied that there is a
serious risk to public health arising from--
• a pandemic disease; or
• a disease of pandemic potential.
A serious risk to public health is defined in the Principal Act
(subject to minor grammatical amendments to be made by
clause 4(4) of the Bill) to mean a material risk that substantial
injury or prejudice to the health of human beings has occurred
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or may occur, having regard to certain specified factors.
Section 3(4) of the Principal Act, as amended by clause 4(5) of
the Bill, provides additional interpretive guidance in relation to
the meaning of this term as applied to pandemic diseases and
diseases of pandemic potential.
New section 3(5) and (6), to be inserted by clause 4(6) of the Bill,
explain when an infectious disease is a pandemic disease or a
disease of pandemic potential for the purposes of the Principal
Act.
Subsection (2) requires the Premier to consult with, and consider
the advice of, the Minister and the Chief Health Officer before
making a pandemic declaration. This recognises that a decision
to make a pandemic declaration should be properly informed by
public health considerations including the expert advice of the
Chief Health Officer.
Subsection (3) clarifies that the Premier may make a pandemic
declaration whether or not at the time the declaration is made the
relevant disease is present in Victoria. This recognises that the
threat of a pandemic disease or a disease of pandemic potential
entering (or re-entering) or becoming present in Victoria could
still present a serious risk to public health in Victoria. This
enables a pandemic declaration to be made to enable
precautionary and preventative actions to be taken to prevent
such a disease posing a serious risk to public health from
becoming present in Victoria.
Subsection (4) provides that the validity of a pandemic
declaration is not affected by the declaration being made on the
basis that the Premier was satisfied, at the time the declaration is
made, that there was a serious risk to public health arising from a
disease of pandemic potential, but the disease was a pandemic
disease at the time, and vice versa. This recognises that a disease
may move between being a disease of pandemic potential and a
pandemic disease and vice versa at different points in time.
Subsection (4) is to ensure a declaration is not rendered invalid
merely because the disease was incorrectly regarded by the
Premier as being one rather than the other at a particular point in
time, noting a declaration can be made on the basis of a serious
risk arising from either a pandemic disease or a disease of
pandemic potential. Importantly, however, if it is not open to the
Premier to be satisfied that if the disease is neither a pandemic
13
disease or a disease of pandemic potential, a declaration cannot
be validly made in respect of the disease.
New section 165AC provides for the form and content of a
pandemic declaration, including in respect of the area or areas to
which the declaration applies, the disease or potential pandemic
disease the declaration relates to, and the period the declaration
continues in force subject to its extension, the need for an end
date to be specified as well as related interpretative matters.
Subsection (1) provides that a pandemic declaration must be in
writing and must specify each of--
• the area or areas to which the declaration applies. This
may be the whole of Victoria, or one or more specified
areas of Victoria;
• the pandemic disease, or the disease of pandemic
potential, to which the declaration relates;
• the period for which the declaration continues in force,
which must not exceed a period of 4 weeks but may be
extended under section 165AE (section 165AE provides
for extension for up to 3 months at a time). The period
for the initial declaration is shorter than the period for
which a declaration may be extended, to encourage a
precautionary approach to making an initial declaration,
and to ensure that the initial decision is reassessed
within 4 weeks to determine whether the pandemic
declaration continues to be the appropriate mechanism
to respond to the public health risks arising from the
disease.
Subsection (2) provides that if, on the coming into force of a
pandemic declaration, a declaration of a state of emergency will
cease to be in force under new section 165CH(3), the pandemic
declaration must include a statement to that effect. New section
165CH(3) sets out provisions relating to the interaction between a
state of emergency and the making of a pandemic declaration.
Subsection (3) provides that a failure to include the statement
required by subsection (2) does not affect the validity of a
pandemic declaration.
New section 165AD makes provision for when a pandemic
declaration comes into force and ceases to be in force.
14
Subsection (1) provides that a pandemic declaration comes into
force--
• on the day specified in the declaration and, if a time is
also specified, at that time on that day; or
• if no day is specified in the declaration, immediately
upon its making.
Subsection (2) provides that a pandemic declaration continues in
force until--
• the end of the period specified in the declaration under
new section 165AC(1)(c) or, if the declaration is
extended under new section 165AE(1), at the end of the
period as extended; or
• if the declaration is revoked before it ceases to be in
force under paragraph (a), upon its revocation.
New section 165AE provides for the variation, extension and
revocation of pandemic declarations.
New section 165AE(1) provides that the Premier may vary or
extend a pandemic declaration if satisfied that there continues to
be a serious risk to public health arising from--
• a pandemic disease, including a disease that was a
disease of pandemic potential when the pandemic
declaration first came into force but is a pandemic
disease at the time of the variation or extension; or
• a disease of pandemic potential, including a disease that
was a pandemic disease when the pandemic declaration
first came into force but is a disease of pandemic
potential at the time of the variation or extension.
Subsection (1) recognises that a disease of pandemic potential
may become a pandemic disease, or vice versa, and a new
declaration should not be required in these circumstances.
Rather, the Premier may extend the existing declaration provided
there continues to be a serious risk to public health and the
disease is one of either a pandemic disease or a disease of
pandemic potential.
Subsection (2) provides that subsection (1) applies whether
or not, at the time of the variation or extension, the disease
is present in Victoria. This recognises that the threat of a
15
pandemic disease or a disease of pandemic potential entering
(or re-entering) or becoming present in Victoria could still
present a serious risk to public health in Victoria. This enables
a pandemic declaration to be varied or extended to enable
precautionary and preventative actions to be taken to prevent
such a disease posing a serious risk to public health from
becoming present in Victoria.
Subsection (3)(a) provides that the Premier must revoke a
pandemic declaration if the Premier is satisfied that there is no
longer a serious risk to public health arising from a pandemic
disease or a disease of pandemic potential. This is an important
measure to ensure that a pandemic declaration does not continue
in force if it is not open to the Premier to be satisfied that there is
a serious risk to public health arising from a disease that is either
a pandemic disease or a disease of pandemic potential. Diseases
that no longer meet the threshold for the making of a pandemic
declaration may then be managed using other powers under the
Principal Act, including Part 8, which relates to management and
control of infectious diseases.
Subsection (3)(b) provides that the Premier may revoke a
pandemic declaration at any other time if the Premier considers it
appropriate to do so.
Subsection (4) requires the Premier to consult with, and consider
the advice of, the Minister and the Chief Health Officer before
varying, extending or revoking a pandemic declaration,
recognising that a decision to vary, extend or revoke a pandemic
declaration should be properly informed by public health
considerations including the expert advice of the Chief Health
Officer.
Subsection (5) states that there is no limit on the number of times
a pandemic declaration may be extended by the Premier under
subsection (1), but that the period of each extension must not be
longer than 3 months. The time limit for extensions ensures that
the ongoing need for a pandemic declaration is continually
reassessed. The 3 month maximum period for extensions is
longer than the period for which a state of emergency may be
extended under the Principal Act (being 4 weeks at a time), and
a pandemic declaration is not subject to an outer limit. This
recognises that pandemics may occur over a long period of time
and the measures enabled by a pandemic declaration may be
16
required for an extended period, as evidenced by the COVID-19
pandemic, which has been ongoing for nearly 2 years.
Subsection (6) provides that, without limiting subsection (1), a
variation of a pandemic declaration may modify any pandemic
management area specified in the declaration, including by
extending the pandemic management area.
Subsection (7) requires a variation, extension or revocation of a
pandemic declaration to be by written instrument.
Subsection (8) provides that the validity of a variation or
extension of a pandemic declaration is not affected by the
variation or extension being made on the basis that the Premier
was satisfied, at the time of the variation or extension, that there
was a serious risk to public health arising from a disease of
pandemic potential, but the disease was a pandemic disease at
that time, or vice versa. This recognises that a disease may move
between being a disease of pandemic potential and a pandemic
disease and vice versa at different points in time. Subsection (7)
is to ensure a declaration is not rendered invalid merely because
the disease was incorrectly regarded by the Premier as being one
rather than the other at a particular point in time, noting a
declaration can be varied or extended on the basis of a serious
risk arising from either a pandemic disease or a disease of
pandemic potential. Importantly, however, if it is not open to the
Premier to be satisfied that the disease is a pandemic disease or a
disease of pandemic potential, a declaration cannot be validly
varied or extended in respect of the disease (and the declaration
must be revoked under new section 165AE(3)(a)).
New section 165AF provides for matters concerning notification
of the making, variation, extension or revocation of a pandemic
declaration. These requirements are to ensure the public
becomes aware of the making of a pandemic declaration or
changes in respect of the declaration.
Subsection (1) provides that as soon as practicable after the
making, variation, extension or revocation of a pandemic
declaration, the Premier must cause notice of the making,
variation, extension or revocation to be--
• broadcast from a broadcasting station in Victoria; and
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• in the case of the making, variation or extension of a
declaration, published with a copy of the declaration as
made, varied or extended in the Government Gazette;
and
• in the case of the revocation of a declaration, published
in the Government Gazette.
Subsection (2) sets out an evidentiary presumption that
production of a Government Gazette purporting to contain--
• notice of the making, variation extension or revocation
of a declaration under this section is evidence of that
making, variation, extension or revocation; and
• a copy of the declaration is evidence of the terms of the
declaration.
New section 165AG provides for reporting obligations and
procedures relating to pandemic declarations.
Subsection (1) provides that the new section applies if a
pandemic declaration is made, varied, extended or revoked,
the Premier must prepare a report in accordance with new
section 165AG on the making, variation, extension or
revocation. A report must include--
• a statement of the reasons for the making, variation,
extension or revocation;
• a copy of the advice of the Minister and the Chief
Health Officer in respect of the making, variation,
extension or revocation; and
• if applicable, a summary of the matters set out in
subsection (4) (relating to pandemic orders, public
health risk powers and pandemic management powers
exercised in the period described in subsection (4)).
These are important requirements to ensure accountability by
ensuring the reasons for making the pandemic declaration are
stated and that the advice the Premier considered in making that
declaration is made available to the public.
Subsection (2) provides that, subject to subsection (3), if a House
of the Parliament is sitting on the day after the pandemic
declaration or the variation, extension or revocation comes into
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force, the Premier must cause the report referred to in subsection
(1) to be laid before that House on that day.
Subsection (3) provides that if a House of the Parliament is not
sitting on the day after the pandemic declaration or the variation,
extension or revocation comes into force, or for another reason it
is not reasonably practicable for the report to be laid before that
House on that day, the Premier must give a copy of the report to
the Clerk of that House within 3 business days. This ensures the
important public interest in reports being made available in a
timely manner.
Subsection (5) states that if the Clerk of either House is given a
copy the report, the Clerk must--
• give a copy of the report to each member of the House
as soon as practicable after receiving it; and
• cause a copy of the report to be laid before the House on
the next sitting day of the House.
Subsection (6) provides that a failure to comply with the
requirements of new section 165AG in relation to a report
concerning the making, variation, extension or revocation of a
pandemic declaration does not affect the validity of the
declaration, variation, extension or revocation as the case
requires.
New section 165AH makes provision for the tabling of reports
when Parliament is not sitting.
Subsection (1) provides that a report that is given to a Clerk of
either House under new section 165AG(3)(b) or (4) is taken to
have been published by order under the authority of the
Parliament.
Subsection (2) states that the publication of a report under new
section 165AG is absolutely privileged and the provisions of
sections 73 and 74 of the Constitution Act 1975, and of any
other enactment or rule of law relating to the publication of the
proceedings of the Parliament, apply to and in relation to the
publication of that report as if--
• it were a report to which those sections applied; and
• it had been published by the Government Printer under
the authority of the Parliament.
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Subsection (3) provides that for the purposes of new section
165AG, Parliament is not sitting when each House stands
adjourned to a date to be fixed by the presiding officer of that
House.
Division 3--Pandemic orders
Division 3 of new Part 8A sets out provisions relation to
pandemic orders that may be made by the Minister, including--
• the power of the Minister to make a pandemic order,
and matters that may be included in a pandemic order;
• to whom pandemic orders may apply;
• consultation requirements for making pandemic orders;
• variation, extension and revocation of pandemic orders;
• when pandemic orders come into force and cease being
in force; and
• tabling and publication requirements for pandemic
orders and associated documents.
New section 165AI(1) provides for the Minister to make orders
under that section. At any time on or after the making of a
pandemic declaration, the Minister may make any order under
new section 165AI(1) (a pandemic order) that the Minister
believes is reasonably necessary to protect public health.
New section 165AI(1) is a broad and general power, recognising
that the public health responses required to effectively respond to
pandemic diseases and diseases of pandemic potential may be
difficult to specify precisely and exhaustively, as pandemics by
their nature are unpredictable and often unprecedented.
Importantly, however, the power to make pandemic orders is
subject to the requirement that the Minister must believe that the
order is reasonably necessary to protect public health. Critically,
the Minister must, under new section 165AL, seek and have
regard to the advice of the Chief Health Officer in relation to
public health risks and response measures.
Subsection (2) sets out a non-exhaustive list of matters that may
be included in a pandemic order. These matters supplement the
general power in subsection (1) and expressly do not limit that
general power. Different types of pandemics will require
different types of public health responses. The list of matters in
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subsection (2) is informed by some of the key public health
measures that have been used to respond to the COVID-19
pandemic, but is not limited to public health measures specific to
COVID-19.
Subsection (2) provides that, without limiting subsection (1), a
pandemic order may include, but is not limited to, the following
orders--
• An order that requires persons in a pandemic
management area to be detained for the period specified
in the order, if the conditions specified in the order are
satisfied or in the circumstances specified in the order.
Detention of persons is an important measure that may
be reasonably necessary to protect public health in
appropriate circumstances. The power in section
200(1)(a) of the Principal Act has been used to detain
persons in a range of circumstances, including to require
certain arrivals into Victoria to be detained in hotel
quarantine.
The Minister may make a pandemic order specifying
when persons are required to be detained, and
authorised officers may then detain persons in
accordance with the pandemic order under new section
165B(1)(b). Noting this is a highly restrictive power,
Division 6 of new Part 8A provides for a range of
special protections that apply when a person is detained
by an authorised officer, including where this is done in
accordance with a pandemic order. These include that
an authorised officer must at least once every 24 hours
review whether the continued detention of the persons is
reasonably necessary to eliminate or reduce a serious
risk to public health, and a person may apply for review
of the detention by a Detention Review Officer under
Division 6 of new Part 8A.
• An order that requires that the detention of persons in
a pandemic management area be extended for the period
specified in the order, if the conditions specified in the
order are satisfied or in the circumstances specified in
the order. The detention of a person may be required
to be extended in certain circumstances, for example
if a person refuses to undergo a medical examination
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or test (this is provided for specifically in new
section 165AI(4)).
• An order that restricts movement in a pandemic
management area. Like the power in section 200(1)(b)
of the Principal Act, this power authorises restrictions
on movement short of detention, for example limiting
the circumstances in which persons may leave their
residential premises, or restricting movement to certain
areas.
• An order that requires movement in, into or from a
pandemic management area. This could support, for
example, orders to evacuate an area.
• An order that prevents or limits entry to a pandemic
management area. The power to prevent entry is similar
to the power in section 200(1)(c) of the Principal Act.
• An order that prohibits or regulates public or private
gatherings in a pandemic management area. For
example, restrictions may limit the number of persons
that may participate in a social gathering in a person's
home, a workplace or in a public place.
• An order that requires the use of personal protective
equipment in a pandemic management area. The
definition of personal protective equipment, to be
inserted by clause 4(1) of the Bill, provides that
personal protective equipment includes, but is not
limited to, facial coverings.
• An order that prohibits or regulates the carrying on of
activities, businesses or undertakings in a pandemic
management area. This may be used, for example, to
restrict non-essential businesses from operating or being
open to the public in order to limit transmission of a
disease.
• An order that requires the provision of information
(including information about the identity of any person),
the production of documents or the keeping of records.
For example, a person might be required to provide
information as a condition of participating in an activity
or being at a place or entering an area.
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• An order that requires medical examination or testing
of persons in a pandemic management area or as a
condition of entry to a pandemic management area.
For example, an order might require international
arrivals to be tested for a pandemic disease on arrival
or at specified times after arrival into a pandemic
management area.
• That requires the quarantining, destruction or other
management of disease vectors in a pandemic
management area. Clause 4 of the Bill inserts a
definition of disease vector into section 3(1) of the
Principal Act. A disease vector means an animal other
than a human being, including a bird or insect, that is
capable of carrying a pathogen that is transmissible to
human beings and is capable of causing disease in
human beings. In the case of a zoonotic disease,
controls may need to be imposed in relation to the
management of disease vectors to limit the transmission
of the disease to humans.
A note following subsection (2) clarifies that a person can be
detained in the exercise of a pandemic management power,
including the power under new section 165B(1)(b) to detain a
person in accordance with a pandemic order that requires the
detention of the person.
Subsection (3) provides that a period of detention specified in a
pandemic order must not exceed the period that the Minister
believes is reasonably necessary to eliminate or reduce a serious
risk to public health. This is an important protection to ensure
persons are not detained for a longer period than is reasonably
necessary. Additionally, an authorised officer must at least once
every 24 hours review whether the continued detention of the
persons is reasonably necessary to eliminate or reduce a serious
risk to public health, and a person may apply for review of the
detention by a Detention Review Officer under Division 6 of new
Part 8A.
Subsection (4) provides that the reasons for making a pandemic
order that extends a period for which persons are detained may
relate to a refusal or failure to comply with a requirement to
undergo a medical test or medical examination. For example,
testing for a pandemic disease may be required towards the end
of a period of detention. If a person refuses to undergo this test,
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it may not be possible to ascertain if the person is infected with
the disease and may be infectious. It may therefore be
reasonably necessary for the person to continue to be detained
until the infectious period has passed.
New section 165AJ provides that a pandemic order has effect
despite anything to the contrary in any subordinate instrument,
other than a subordinate instrument made under the Charter of
Human Rights and Responsibilities. This ensures that a
pandemic order prevails to the extent of any inconsistency.
New section 165AK specifies to whom a pandemic order may
apply.
As provided for in subsection (1), a pandemic order may be
expressed to apply to all persons, or to specified classes of
person, or to specified persons. As pandemic orders will be the
key instrument setting out public health measures during a
pandemic or in response to a disease of pandemic potential, it is
intended that they may be of wide or general application.
As provided for in subsection (2), a pandemic order must not be
expressed to apply to a single named individual (being a natural
person). In contrast, authorised officers have pandemic
management powers that may be used to direct or impose
requirements on named individuals. Subsection (2) does not
prevent a pandemic order from being expressed to apply to
(or imposing duties on) a statutory office holder.
Subsection (3) specifies a number of ways, without limiting
subsection (1), in which a pandemic order may be expressed to
differentiate or vary in its application between persons or classes
of person. A pandemic order may identify and differentiate
between, or vary in its application to, persons on the basis of one
or more of the following--
• their presence in a pandemic management area or a
particular location in a pandemic management area;
• their participation in or presence at an event;
• an activity that they have undertaken or are undertaking;
• their characteristics, attributes or circumstances.
While subsection (3) clarifies that pandemic orders may
differentiate between persons on these bases, all pandemic orders
are subject to the requirement that the Minister must believe the
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order is reasonably necessary to protect public health. The
differentiated application of pandemic orders between persons
must therefore be relevant to the protection of public health.
Subsection (4) provides that attribute, as used in subsection (3),
can include an attribute as defined in the Equal Opportunity
Act 2010 and a pandemic order is an enactment for the purposes
of section 75(1)(b) of that Act. This clarifies that a person taking
actions to comply with a pandemic order or that are otherwise
authorised by a pandemic order is not engaging in prohibited
discrimination for the purposes of the Equal Opportunity
Act 2010.
New section 165AL provides for consultation and matters that
may be taken into consideration in the making of a pandemic
order.
Subsection (1) requires the Minister to, prior to making a
pandemic order, request the advice of the Chief Health Officer in
relation to the serious risk to public health posed by the disease
specified in the pandemic declaration to which the proposed
pandemic order relates, and to the public health measures that,
in the opinion of the Chief Health Officer, are necessary or
appropriate to address this risk. This is an important obligation
to ensure that pandemic orders are properly informed by
consideration of the expert public health advice of the Chief
Health Officer. The Chief Health Officer's advice may be
provided orally or in writing. Advice must be requested in
relation to the matters specified in subsections (1)(a) and (1)(b),
but otherwise the form and content of the advice is not specified,
noting advice may need to be requested and provided urgently to
respond to a fast-moving pandemic disease or disease of
pandemic potential.
Subsection (2)(a) requires that the Minister, in making a
pandemic order, have regard to the advice of the Chief Health
Officer referred to in subsections (1)(a) and (1)(b). This is an
important precondition to the exercise of the power to make
pandemic orders. While the Minister is not obliged to follow or
act in accordance with the advice, the Minister is required to have
regard to that advice by giving proper, genuine and realistic
consideration to that advice when making a pandemic order.
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Subsection (2)(b) provides that the Minister may have regard to
any other matter the Minister considers relevant including, but
not limited to, social and economic matters. This recognises that
the restrictions imposed by pandemic orders may have significant
social and economic consequences, and that it is appropriate for
the Minister to be permitted to consider broader matters in
making a pandemic order.
Subsection (3) provides that the Minister may consult any other
person they consider appropriate before making a pandemic
order. Such consultation may be undertaken to inform the
Minister on any matter the Minister considers relevant in making
a pandemic order.
New section 165AM sets out additional matters relating to
pandemic orders.
Subsection (1) provides that pandemic orders must be in writing
and must specify--
• the day on which and time when it comes into force;
• the period for which it continues to be in force; and
• that refusal or failure to comply with the order without a
reasonable excuse is an offence.
Subsection (2) provides that pandemic orders may be expressed
to apply in, or in relation to, the whole or a specified part of a
pandemic management area.
Subsection (3) provides that a pandemic order--
• may be of general or specially limited application;
• may differ according to time, place or circumstance;
• may leave any matter or thing to be determined, applied,
dispensed with or regulated by a specified person or
specified class of persons;
• may provide for exemptions from the pandemic order;
• may apply, adopt or incorporate certain matters;
• may confer powers or impose duties in connection with
the pandemic order on a specified person or class of
persons;
26
• may make provisions for and in relation to permits and
matters relating to permits;
• may include transitional and saving provisions; and
• may provide for matters or things incidental to the
making of a pandemic order.
These provisions provide for flexibility and clarity in how
pandemic orders may apply or be expressed, and in how they are
operationalised noting pandemic orders may regulate a wide
range of matters. For example, a pandemic order could--
• leave certain matters to be decided by the Chief Health
Officer;
• enable authorised officers or other persons to determine
exemptions from pandemic orders;
• establish a permit system for the purposes of entry into a
pandemic management area;
• confer powers or impose duties on the Service Victoria
CEO in relation to the collection of information for the
purposes of a pandemic order.
New section 165AN provides that a pandemic order is in force on
a day and at the time specified in the order and ceases to be in
force at the end of the period specified in the order, or when the
order is revoked, or when the pandemic declaration ceases to be
in force.
New section 165AO provides for varying, extending or revoking
a pandemic order. The Minister is required to request the advice
of the Chief Health Officer before varying, extending or revoking
a pandemic order, other than with respect to a variation to a
pandemic order that corrects a defect, mistake or omission.
As with the making of a pandemic order, the Minister is required
to have regard to the advice of the Chief Health Officer given in
response to such a request and may have regard to any other
matter the Minister considers relevant, and consult any other
person the Minister considers appropriate.
New section 165AP requires the publication of a pandemic order
and various associated documents. These are important
requirements to ensure transparency and accountability and to
27
ensure the public is able to understand the reasons for
requirements imposed under a pandemic order.
Subsection (1) requires a pandemic order, or a variation,
extension or revocation of a pandemic order, to be published
on the Pandemic Order Register established under new
section 165CS before the order or the variation, extension or
revocation comes into force.
Subsection (2) requires the following associated documents to
also be published on the Department of Health Internet site
within 14 days after a pandemic order or a variation, extension or
revocation of a pandemic order comes into force--
• a copy of, or a written record of, the advice given by
the Chief Health Officer in relation to the making,
variation, extension or revocation of the order (as the
case may be);
• a statement of reasons for the making, varying,
extension or revocation of the order;
• an explanation of the human rights that are protected by
the Charter of Human Rights and Responsibilities that
are or may be limited by the order and how any such
limitations are demonstrably justified.
Subsection (3) provides that publication is only required once for
associated documents that relate to more than one pandemic
order that is made, varied, extended or revoked on the same day.
Subsection (4) makes provision for the making of a written
record of advice for advice that is provided in writing (noting this
may involve a number of separate documents) and advice that is
provided orally.
Subsection (5) provides that the publication requirements do not
apply where a variation is made to a pandemic order only for the
purpose of correcting a defect, mistake or omission, but the
Minister must publish a statement certifying that the variation
was for this purpose.
Subsection (6) provides that a failure to comply with a
publication requirement does not affect the validity of the
pandemic order or the variation, extension or revocation, as the
case requires.
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New section 165AQ makes provision for the tabling in
Parliament of a pandemic order and associated documents.
This is another important measure to ensure pandemic orders are
made available to Parliament, including to ensure they can be
scrutinised by the Scrutiny of Acts and Regulations Committee
under Division 4 of new Part 8A.
Subsection (1) requires the Minister to ensure that, within
6 sitting days after a pandemic order or a variation, extension or
revocation of a pandemic order comes into force, a copy of the
pandemic order or the instrument of variation, extension or
revocation (as the case requires), and the associated documents
required to be published under new section 165AP(2), is laid
before each House of Parliament.
Subsection (2) provides that a failure to comply with this
requirement does not affect the validity of the pandemic order or
the variation, extension or revocation as the case requires.
However, as noted following the subsection, the Scrutiny of Acts
and Regulations Committee may report this failure to comply
under new section 165AS, which is a precondition for
disallowance under new section 165AU.
New section 165AR provides that after the making, variation,
extension or revocation of a pandemic order, the order as made,
varied or extended, or the instrument of revocation, must be
gazetted--
• in the next general edition of the Government Gazette;
or
• in a special edition of the Government Gazette within
10 working days after the making, variation, extension
or revocation.
Division 4--Scrutiny, suspension and disallowance of
pandemic orders
Division 4 of new Part 8A enhances oversight of decision-
making and promotes accountability by providing mechanisms
for the scrutiny, suspension and disallowance of pandemic orders
and instruments that extend, vary or revoke a pandemic order
(from here on in referred to as "pandemic order modification
instruments"). Division 4 provides that the Scrutiny of Acts and
Regulations Committee may review a pandemic order
modification instrument and may make recommendations for the
29
amendment or disallowance of the pandemic order or pandemic
order modification instrument, and enables the disallowance of a
pandemic order or a pandemic order modification instrument
following approval of both Houses of the Parliament.
New section 165AS enables the Scrutiny of Acts and Regulations
Committee to provide a report proposing that a pandemic order
or pandemic order modification instrument is suspended and this
suspension comes into effect 7 days after the report is sent to the
Governor in Council; however, the Governor in Council may
prevent the suspension coming into effect by declaring by Order
within 7 days of receiving the report that the pandemic order or
pandemic order modification instrument is not suspended.
New section 165AU provides for the disallowance of a pandemic
order by a resolution passed by both Houses of the Parliament,
only in circumstances where the Scrutiny of Acts and
Regulations Committee has first either made a report to
Parliament recommending disallowance or reported to Parliament
that there was a failure to comply with new section 165AQ,
which requires a pandemic order or pandemic order modification
instrument, and their associated documents, including the advice
of the Chief Health Officer given to the Minister, a statement of
reasons for the pandemic order or pandemic order modification
instrument and a report in relation to the Charter of Human
Rights and Responsibilities, to be laid before each House of
Parliament within 6 sitting days after the pandemic order or
pandemic order modification instrument comes into force.
A resolution of disallowance initiated on the own motion of a
Member of Parliament without meeting the precondition of the
Scrutiny of Acts and Regulations Committee having provided to
the Houses of Parliament a relevant report as described will not
have legal effect.
New section 165AV sets out the effect of disallowance by both
Houses of the Parliament on the disallowed pandemic order, part
of a pandemic order or pandemic order modification instrument.
Subsection (1) provides that a disallowed pandemic order or part
of a pandemic order ceases to be in force as if it were revoked.
Subsection (2) provides for the revival of a pandemic order or
part of pandemic order that was varied by a disallowed
instrument that varies the pandemic order, from the point in time
the instrument is disallowed by both Houses of the Parliament.
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The pandemic order or part is restored to as it was before the
disallowed instrument varied it.
Subsection (3) provides for the revocation of a pandemic order or
part of pandemic order that was extended by a disallowed
instrument that extends the pandemic order or part, from the
point in time the instrument is disallowed by both Houses of the
Parliament.
Subsection (4) provides for the revival of a pandemic order or
part of pandemic order that was revoked by a disallowed
instrument that revoked the pandemic order or part, from the
point in time the instrument is disallowed by both Houses of the
Parliament.
New section 165AV(5) requires that a notice of a disallowance
must be published in the Government Gazette.
Division 5--Pandemic management powers
New section 165AW enables the Chief Health Officer to
authorise authorised officers or classes of authorised officers to
exercise public health risk powers and pandemic management
powers if a pandemic declaration is in force and the Chief Health
Officer believes that the authorisation is reasonably necessary to
eliminate or reduce a serious risk to public health.
This new section 165AW is in contrast to new section 165CO,
which limits the public health risk powers that authorised officers
appointed under section 165CN may be authorised by the Chief
Health Officer to exercise. These authorised officers include,
among others, police officers and Worksafe inspectors within the
meaning of the Occupational Health and Safety Act 2004.
New section 165AX provides for the form of the authorisations
that the Chief Health Officer may give. An authorisation may be
oral or in writing and must describe the serious risk to public
health to which it relates, that is, the risk to public health which
the Chief Health Officer believes the authorisation is reasonably
necessary to eliminate or reduce. The authorisation must specify
any restrictions or limitations that apply to the exercise of the
powers covered by the authorisation.
New section 165AY clarifies that the Chief Health Officer may
extend the period of time for which an authorisation of an
authorised officer continues in force. This provision requires that
an authorisation cannot continue in force beyond the period of
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operation of a pandemic declaration, reflecting that the
authorisation power is only enlivened during the period in which
a pandemic declaration is in force. This means an existing
authorisation could be extended by a further authorisation.
Alternatively, noting that new section 165AX(3)(e) requires that
an authorisation must specify the period of time for which the
authorisation continues in force, an authorisation may be
expressed to be in effect for a specified period and for the
operation of the authorisation to extend to be in effect during
extensions of the period of time of the operation of the pandemic
declaration.
New section 165AZ provides that, whilst a pandemic declaration
is in force, an authorised officer who is authorised by the Chief
Health Officer may, subject to the limitations or requirements of
their authorisation, exercise any of the public health risk powers
or the pandemic management powers.
New sections 165B and 165BA set out, respectively, the
pandemic management order powers and the pandemic
management general powers, which collectively are the
pandemic management powers that may be exercised by an
authorised officer who has been authorised to exercise the powers
under an authorisation given by the Chief Health Officer under
new section 165AW.
New section 165B sets out the pandemic management order
powers, which generally are powers related to giving effect to
a pandemic order. The first pandemic management order
power is the power to take action or give a direction, other
than to detain a person, that the authorised officer believes is
reasonably necessary to implement or give effect to a pandemic
order. This power reflects a key role authorised officers have
in implementing pandemic orders, including by limiting
non-compliance with pandemic orders of wide application made
by the Minister. The second pandemic management order power
is the power to detain a person in accordance with a pandemic
order that requires the detention or extension of detention of a
person. Such an order may be made where the Minister believes
it is reasonably necessary to protect public health, and must
specify the period of detention not exceeding the period the
Minister believes is reasonably necessary to eliminate or reduce
the serious risk to public health. In exercising this power an
authorised officer does not have to separately reach a requisite
32
state of mind to detain a person (provided the detention is in
accordance with the pandemic order), reflecting the necessary
role "on the ground" role that authorised officers have in
detaining persons, which in certain circumstances may involve
detention of groups of people required to be detained under a
pandemic order.
New section 165BA sets out the pandemic management general
powers, which generally are residual powers to be exercised by
an authorised officer complementary to the scope of directions
given, and regulation of activity achieved, through pandemic
orders made by the Minister. The first pandemic management
general power is the power to take action or give a direction,
other than to detain a person, that an authorised officer believes is
reasonably necessary to protect public health. The second
pandemic management general power is the power to detain a
person in a pandemic management area if for the period the
authorised officer believes it is reasonably necessary to eliminate
or reduce a serious risk to public health for the purpose of that
detention. This power allows an authorised officer to detain a
person in a pandemic management area for the period reasonably
necessary to eliminate or reduce a serious risk to public health in
circumstances that are not covered or contemplated by a
pandemic order by the Minister.
Subsection (2) provides, without limiting the scope of the
pandemic management general powers, a non-exhaustive list of
the directions that an authorised officer could give and clarifies
that such directions may be written or oral.
Directions may, for example--
• restrict movement in a pandemic management area; or
• require movement in, into or from a pandemic
management area, such as to direct a person away from
a location where a disease vector or other serious threat
to public health may be present; or
• prevent or limit entry to a pandemic management area,
such as in implementing border controls; or
• require a person to refrain from organising or
participating in a gathering in a pandemic management
area; or
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• require the use of personal protective equipment
(including facial coverings) in a pandemic management
area; or
• require a person to refrain from carrying on activities,
businesses or undertakings, or to carry them on in a
specified manner in a pandemic management area,
which may include activities or undertakings that are
not commercial in nature; or
• require the provision of information (including
information about the identity of any person), the
production of documents, or the keeping of records; or
• require medical examination or testing in or before
entering a pandemic management area; or
• require the quarantining, destruction or other
management of disease vectors in a pandemic
management area.
Noting pandemic orders made by the Minister may be of general
or wide application (such as applying to all persons in
metropolitan Melbourne or all person in Victoria) or otherwise
may apply to classes of persons, in contrast there are limitations
in respect of to whom pandemic management general powers
exercised by authorised officer may apply. In the exercise of a
pandemic management general power to take any action or give
any direction, other than to detain a person, an authorised officer
is only permitted to give a direction that applies to more than one
person where the directed person--
• is participating or present at an event at a particular
location; or
• is undertaking a particular activity at a particular
location; or
• is located in the immediate vicinity of the authorised
officer or present at a particular premises and the
direction relates to restricting movement, requiring
movement or to limiting entry.
In each of these circumstances, it may be necessary, in an
authorised officer's belief that it is reasonably necessary to
protect health, to give a direction to multiple people, including
groups or crowds of people. Directions may be necessary due to
34
a confirmed outbreak of a pandemic disease or the presence of a
disease vector or the emergence of some other threat. New
section 165BB requires, unless it is not practicable to do so, an
authorised officer to warn the person to whom a direction is
given that refusal or failure to comply with the direction, without
a reasonable excuse, is an offence.
New section 165BC provides that an authorised officer may be
assisted by any person in exercising a public health risk power or
a pandemic management power authorised under new Part 8A.
A request for assistance to be provided by a police officer must
be made to the Chief Commissioner of Police or a delegate of the
Chief Commissioner of Police.
Provisions relating to requests for assistance for this new
section 165BC and current sections 192 and 202 of the Principal
Act are in new section 227A to be inserted by clause 17 of the
Bill.
New section 227B to be inserted by clause 17 of the Bill provides
for assistance by police officers.
Division 5--Special protections in respect of powers of
detention
New section 165BD clarifies when detention under new
section 165B(1)(b) (detention in accordance with a pandemic
order) or 165BA(1)(b) (detention by an authorised officer to
eliminate or reduce a serious risk to public health) commences.
In either case, detention commences only after the exercise of a
pandemic management power by an authorised officer. There are
a range of circumstances in which persons may be detained, for
example detention in hotel quarantine, or detention of a group of
persons within a defined geographical location or area.
Detention may or may not involve a person being taken into
physical custody. New section 165BD provides for a range of
circumstances in which detention can commence.
The section provides that detention commences at whichever of
the following times occurs first--
• the time when the person is first at a place where the
person is to be detained after the exercise of the relevant
power, whether or not the person is to remain at that
place throughout the period of detention, or is to be
transported to another place (for example, if there was
35
an outbreak of a pandemic disease in an apartment
building and a pandemic order was made to detain
ordinary residents of the building from a set time, an
ordinary resident not located in the building at the set
time would not be detained until such time on or after
the set time that they were at the building); or
• the time when the person is first taken into the physical
custody of the authorised officer exercising the
pandemic management power or into the physical
custody of a person assisting an authorised officer
(for example, if a person is required to be taken into
physical custody of an authorised officer to be taken
to a place the person is required to be detained); or
• the time when an authorised officer takes an action in
respect of the person, the taking of which is specified in
the pandemic order as being the commencement of the
detention of a person.
New section 165BE clarifies that, for the purposes of new
Part 8A, a person who is required to isolate or quarantine under a
pandemic order or under a direction given in the exercise of a
pandemic management power is not detained for the purposes of
new Part 8A merely because of the requirement to isolate or
quarantine. While a requirement to isolate when a person is
diagnosed with an infectious disease or to quarantine when at risk
of developing an infectious disease due to potential exposure may
share some similarities with detention, in that they involved
restrictions on movement, a requirement to isolate or quarantine
does not of itself amount to detention. However, isolation or
quarantine may in some circumstances also involve detention, for
example detention in hotel quarantine.
New section 165BF provides that a person detained must be
given either a written notice or an explanation of the reason why
the detention is necessary and a warning that refusal or failure to
comply with a pandemic order or the exercise of a pandemic
management power without reasonable excuse is an offence.
This provision is intended to support a person to understand their
detention including its terms and conditions, their rights of
review and the consequences of failing to comply with the
detention.
36
New section 165BG requires an authorised officer to facilitate
any reasonable request for communication made by a person who
is detained.
In addition it requires an authorised officer to, every 24 hours,
unless it is not practicable, review the detention of a person.
This review may be conducted by an authorised officer different
to the authorised officer who detained the detained person and
will help ensure that a person does not continue to be detained
unless it is reasonably necessary to eliminate or reduce a serious
risk to public health.
New section 165BH requires authorised officers to provide
written notices to the Chief Health Officer about the exercise of
pandemic management powers that involve detention.
Such notices shall include advice on persons detained or
continuing to be detained, reviews of detention and reasons for
detention.
In addition, the Chief Health Officer is to advise the Minister that
a person has been detained or following a review, continues to be
detained, the name of the person being detained and a brief
statement as to the reason why the person is detained or continues
to be detained.
This section will support proactive and--responsive
decision-making for the purposes of preventing and managing
the outbreak or spread of pandemics and diseases of pandemic
potential.
New section 165BI enables a person detained or whose detention
is extended to make an application to the Secretary for a review
of their detention by a Detention Review Officer.
The Public Health and Wellbeing Amendment (State of
Emergency Extension) Act 2021 introduced a mechanism for
persons subject to detention under the exercise of the emergency
power in section 200(1)(a) of the Principal Act to apply for a
review of a detention decision by a Detention Review Officer.
Detention Review Officers are appointed under section 32A of
the Principal Act and must be lawyers of 10 years' experience
and employed under Part 3 of the Public Administration
Act 2004.
37
The new detention review mechanism for the purposes of new
Part 8A will operate similarly to the current detention review
mechanism in Division 3 of Part 10 of the Principal Act.
New section 165BI(1) provides that a detained person may apply
to the Secretary for review of their detention by a Detention
Review Officer including, without limitation, in relation to the
following--
• the reasons for the detention;
• the period of the detention;
• the place of the detention;
• the conditions of the detention;
• any other matter relation to the detention.
New section 165BI(2) provides that a person who has had an
application for review determined may make a further application
if, since that determination, new and materially different
circumstances have arisen that affect the person in relation to
their detention. These circumstances could include those that
existed at the time that the application for review was determined
but have since substantially worsened or otherwise changed.
New section 165BJ sets out how a Detention Review Officer
must decide an application for review of a person's detention.
Subsection (2) provides that the Detention Review Officer to
whom the application is referred must use their best endeavours
to decide the application in a timely manner, and advise the
applicant in writing of the decision and the reasons for it.
Subsection (4) provides that the Detention Review Officer may
decide not to vary the person's detention or to refer the
application to the Chief Health Officer. Such a referral can, but
does not have to, include any non-binding recommendations the
Detention Review Officer considers appropriate.
Subsection (5) requires the Detention Review Officer to advise
an applicant if their application is referred to the Chief Health
Officer.
New section 165BK requires the Chief Health Officer to use their
best endeavours to determine decisions on detention review
applications in a timely manner.
38
New section 165BL provides that where a person's detention
ceases because of a decision made on the review of their
detention, that detention is not deemed to have been unlawful
merely because of the decision made on the review.
New section 165BM enables the Minister to make and publish
guidelines and standards for the welfare of persons detained.
These guidelines and standards may relate to matters including
the provision of psychological support to a detained person
and maintenance of contact with other persons. The Minister
is to consult the Chief Health Officer before making such
guidelines or standards. A person who performs functions
and exercises powers under the Principal Act must have regard
to any guidelines and standards. Furthermore, to the extent
that a standard is not inconsistent with a pandemic order, a
person that performs functions or exercises powers under the
Principal Act must do so in compliance with the standard.
New section 165BM(6) provides that if the Minister makes a
pandemic order that is inconsistent with a guideline or a standard,
the Minister must explain the reasons for the inconsistency.
Division 6--Offences, penalties and related matters
New section 165BN specifies that it is an offence to refuse or fail
to comply with a pandemic order or a direction given to the
person, or a requirement made of the person, in the exercise of a
pandemic management power.
The maximum penalty in the case of a corporation is 600 penalty
units and 120 penalty units in the case of a natural person.
A person is not guilty of the offence if the person had a
reasonable excuse for refusing or failing to comply.
New section 165BO introduces a new aggravated offence, which
specifies that it is an offence if a person fails to comply with a
pandemic order, or with a direction given to the person, or a
requirement made of the person, in the exercise of a pandemic
management power, and the person knows or ought to know that
the failure to comply is likely to cause a serious risk to the health
of another individual.
The maximum penalty in the case of a corporation is
2500 penalty units or a fine related to the commercial benefit
obtained from the offence determined in accordance with
39
section 617. The maximum penalty for a natural person is
500 penalty units or up to 2 years imprisonment.
Subsection (2) provides a defence to the offence if the person had
a reasonable excuse for failing to comply.
Subsection (3) defines serious risk to the health of an
individual. This definition replicates the definition of serious
risk to public health given in section 3 of the Principal Act
with one key difference. Serious risk to public health includes
"the number of persons likely to be affected" as a relevant matter,
and refers to the health of multiple individuals. The definition
of serious risk to the health of an individual set out in new
section 165BO(3) omits the number of persons as a relevant
matter, and refers to an individual. This distinction means
that a person could be guilty of an offence against new
section 165BO(1) in circumstances where (provided all other
elements are also present) their failure to comply is likely to
cause a material risk that substantial injury or prejudice occurs
to just one other person.
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. For example, the conduct of a person who
knows they are infected with an infectious disease attending their
place of work in contravention of requirements to isolate and stay
at home may amount to commission of the aggravated offence.
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. 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.
New section 165BP enables a court to make a penalty order
against a body corporate found guilty of an offence against
section 165BO(1) and sets out the method for determining the
penalty amount imposed in such an order. It enables a court to
consider the estimated gross commercial benefit obtained by a
body corporate from the commission of the aggravated offence
in section 165BO(1). This order is a deterrent for this serious
40
offence and made at the discretion of a court, on application by
the prosecutor.
New section 165BQ provides that if a judge of a court is not
satisfied that a person committed an offence against new
section 165BO (aggravated offence), but is satisfied that
the person committed the less serious offence against new
section 165BN, the court may alternatively find the person not
guilty of the offence charged but guilty of the less serious
offence, and liable to be punished accordingly.
Division 7--Information sharing
New section 165BR clarifies that the Secretary and the Chief
Health Officer may collect, hold, manage, use, disclose or
transfer information for the purposes of new Part 8A.
New section 165BS clarifies that the disclosure or transfer of
personal information or health information authorised or required
by new Part 8A is deemed to be authorised or required by law for
the purposes of the Privacy and Data Protection Act 2014 and
the Health Records Act 2001. These Acts establish information
privacy and protective data security schemes for the Victorian
public sector and permit use and disclosure of information in
certain circumstances where the use or disclosure is required,
authorised or permitted under law.
New section 165BT provides that the Minister may apply to the
Information Commissioner for a determination in relation to an
act or practice of an organisation that contravenes or may
contravene an Information Privacy Principle or approved code of
practice or Health Privacy Principle. The application must
specify--
• the act or practices to which the determination would
apply;
• the persons or organisations to which the determination
would apply to;
• the relevant Information Privacy Principle or code of
practice or Health Privacy Principle; and
• the reasons for seeking the determination.
41
The pandemic information determination may relate to personal
information or health information or both. The information may
be collected, held, managed, used, disclosed or transferred for the
purposes of new Part 8A.
New section 165BU provides that the Information Commissioner
may make a pandemic information determination where the
Commissioner considers that the public interest in the
organisation doing the act or engaging in the practice to which
the determination would apply substantially outweighs the public
interest in complying with the relevant Information Privacy
Principle, approved code of practice or Health Privacy Principle.
New section 165BV provides that the effect of a pandemic
information determination is that the persons or organisations to
which the determination applies are not required to comply with
the relevant Information Privacy Principle, approved code of
practice or Health Privacy Principle to the extent specified in the
determination.
New section 165BW provides that a pandemic information
determination has effect from the day of publication until it
expires or is revoked.
New section 165BX explains the process for variation of a
pandemic information determination and identifies that the
Information Commissioner must have regard to whether the
variation would be in the public interest.
Subsection (1) provides that the Minister may apply to the
Information Commissioner for the variation of a pandemic
information determination.
Subsection (2) provides that the Information Commissioner may
approve the proposed variation if the Information Commissioner
considers it appropriate to do so (subject to subsection (3)).
Subsection (3) provides that, in deciding whether to approve a
variation to a pandemic information determination, the
Information Commissioner--
• must have regard to whether or not the variation would
be in the public interest; and
42
• must have regard to the objective of the Principal Act,
the objective of new Part 8A, the Privacy and Data
Protection Act 2014 and the Health Records
Act 2001; and
• may have regard to any other matter the Information
Commissioner considers relevant.
New section 165BY explains the circumstances in which a
pandemic information determination must be revoked by the
Information Commissioner.
New section 165BZ sets out the procedural requirements to be
met before variation or revocation of a pandemic information
determination, which includes consideration of submissions and
consultation requirements.
New section 165C requires publication on an Internet site
maintained by the Information Commissioner within 14 days of a
pandemic information determination being made, varied or
revoked, as well as publication of a statement of reasons and any
comments made by the Health Complaints Commissioner.
Division 8--Safeguards for contact tracing information
New section 165CA provides that the objectives of Division 8 of
new Part 8A are to--
• safeguard information about individuals, and certain
other information that forms part of a contact tracing
system;
• to provide a strong legislative framework in order to
maintain the Victorian community's confidence in the
safeguards that apply to the use and disclosure of such
information.
This safeguarding scheme is introduced in the context of
uncertainty and disputes over the boundaries protecting
information collected for the purposes of contact tracing in
managing outbreaks during the COVID-19 pandemic. Such
information has been collected under emergency powers in
extraordinary circumstances while justifiably limiting the right to
privacy, across all Australian jurisdictions. As this information is
collected for the primary purpose of managing the threat of harm
posed by the COVID-19 pandemic, this safeguarding scheme is
intended to protect against use or disclosure for unjustifiable
43
purposes, in a similar way to how the Protection of Information
(Entry Registration Information Relating to COVID-19 and Other
Infectious Diseases) Act 2021 of Western Australia was
introduced to protect entry registration information.
The provisions contained in Division 7A make clear that the
safeguarding provisions do not apply to contact tracing in relation
to other diseases that are not the subject of a pandemic
declaration.
New section 165CB defines the key terms used in Division 8 of
new Part 8A.
Subsection (1) defines contact tracing information to mean
information forming part of a contact tracing system established
for contact tracing purposes in relation to a pandemic disease or
a disease of pandemic potential and includes recorded
information about a person whose identity is apparent, or can
reasonably be ascertained, from the information, as well as
information collected by a digital visitor registration system for
contact tracing purposes, whether or not an individual's identity
can be reasonably ascertained from the information. This
definition is intended to provide sufficient clarity about the
information to be safeguarded by the safeguarding scheme, which
may include QR code data and paper copy information relating to
recording entries into premises, notes and information recorded
from contact tracing interviews, and information collected for
permits for cross-border travel. The provisions contained in
Division 7A will not apply to information forming part of contact
tracing systems for diseases that are not subject to a pandemic
declaration, including if that information was provided in relation
to a disease that subsequently becomes the subject of a pandemic
declaration.
Subsection (2) clarifies that a system is established for contact
tracing purposes if under the system, information is collected,
held, used, disclosed, managed and transferred by entities and
individuals for the purposes of identifying, notifying or
communicating with entities or individuals about one or more
individuals who are, may be, or have been, infected with a
pandemic disease or disease of pandemic potential or had or may
have had contact with such an individual.
44
New section 165CC specifies that it is an offence to use or
disclose contact tracing information without authorisation.
The maximum penalty for a natural person is 60 penalty units and
in the case of a corporation is 300 penalty units.
New section 165CD provides that the authorised purposes for
which a person may use or disclose contact tracing information--
• for a public health purpose; or
• in the performance of functions or the exercise of
powers under new Part 8A; or
• for a permitted purpose, which is if consent is obtained
for the use or disclosure; or there is an imminent threat
to the life, health, safety or welfare of at least one
individual; or to investigate or prosecute the offence
under new section 165CC (unauthorised disclosure of
contact tracing information) contained or the offence
under section 210 (provision of false or misleading
information, statement or document).
Division 9--Independent Pandemic Management Advisory
Committee
New section 165CE(1) imposes a requirement on the Minister to
establish, within 30 days after the first extension of a pandemic
declaration, an advisory committee, to be known as an
Independent Pandemic Management Advisory Committee, for
the purposes of providing advice in relation to managing the
pandemic disease or disease of pandemic potential to which the
pandemic declaration relates.
Subsections (2)-(7) set out procedures and arrangements for
appointment of members of the Independent Pandemic
Management Advisory Committee, including that appointments
by the Minister must be done under consultation with the Chief
Health Officer. The Minister must ensure as far as reasonably
practicable that in considering and making appointments,
membership of the Independent Pandemic Management Advisory
Committee must collectively have skills, knowledge and
experience in matters relevant to the response to, and
management of, a pandemic disease or disease of pandemic
potential, including in relation to matters of public health,
infectious diseases, primary care, emergency care, critical care,
law, human rights, the interests and needs of traditional owners
45
and Aboriginal Victorians and the interests and needs of
vulnerable communities, which may include communities where
persons experience or are at risk of disadvantage or susceptibility
due to social disadvantage, cultural factors, homelessness or
family violence.
New section 165CF provides that the functions of the
Independent Pandemic Management Advisory Committee are to
review and provide advice in relation to the exercise of powers
under new Part 8A and prepare and provide reports to the
Minister including making non-binding recommendations.
The Independent Pandemic Management Advisory Committee
must advise on matters further to the Minister's requests.
Otherwise, the Independent Pandemic Management Advisory
Committee is not subject to the direction or control of the
Minister.
New section 165CG requires the tabling in both Houses of the
Parliament of all reports by the Independent Pandemic
Management Advisory Committee to the Minister.
Division 10--Matters relating to the interaction between a
state of emergency and a pandemic
Division 10 of new Part 8A applies if a pandemic declaration
comes into force in relation to an infectious disease or an
infectious agent which is the subject of a state of emergency
declaration and provides arrangements for the seamless transition
of authorisations, directions and exercises of power to avoid any
regulatory gap in moving from the state of emergency scheme to
the pandemic management scheme.
New section 165CH provides that a declaration of a state of
emergency ceases to be in force in relation to any emergency area
(or part of an emergency management area) that is, or is within,
the pandemic management area described in a pandemic
declaration made in respect of the same infectious disease to
which the state of emergency declaration pertains. If there are
areas outside the pandemic management area that are within the
emergency area under the state of emergency declaration, the
state of emergency declaration continues to be in force in those
areas. For example, if a state of emergency applied to the whole
of Victoria in relation to an infectious disease, if a pandemic
declaration was made in respect of that infectious disease to
apply to the pandemic management area identified as
46
metropolitan Melbourne, then the state of emergency declaration
would continue to apply to all areas of Victoria outside of
metropolitan Melbourne.
New section 165CI continues the authority of authorised officers
to exercise powers despite a pandemic declaration applying
instead of a state of emergency declaration.
New section 165CJ provides that despite a pandemic declaration
applying instead of a state of emergency declaration, directions
given by the Chief Health Officer under powers exercised under
the state of emergency declaration are deemed to be pandemic
orders. This provision will ensure continuity of directions
regulating and restricting activity that may apply on a wide scale.
New section 165CK provides for the continuation of directions
made and other actions taken by authorised officers (other than
the Chief Health Officer), except for those relating to detention,
despite a pandemic declaration applying instead of a state of
emergency declaration.
New section 165CL provides that a person detained following
the exercise of powers under a state of emergency continues
to be detained under a pandemic declaration as if they were
detained under a pandemic management power under new
section 165B(1)(b) or 165BA(1)(b) of the Principal Act.
Subsections (2) to (5) provide that applications for the review of
detention not determined prior to the commencement of a
pandemic declaration are to be referred or determined under
provisions in Part 8A of the Principal Act.
Subsection (6) clarifies that a period of time related to detention
and applications for the review of detention continues to apply
despite a pandemic declaration applying instead of a state of
emergency declaration. That is, a period of detention determined
under the exercise of emergency powers would continue when a
pandemic declaration applies, rather than recommencing when a
state of emergency declaration ceases.
New section 165CM saves decisions not to detain a person
despite a pandemic declaration applying instead of a state of
emergency declaration.
New section 165CN provides that, in addition to the persons who
may be appointed under section 30(1) of the Principal Act, the
Secretary by instrument may appoint certain other persons when
47
a pandemic declaration is in force. The additional persons that
may be appointed as authorised officers for the purpose of the
Principal Act include any person the Secretary considers
appropriate for appointment based on the person's skills,
attributes or experience; police officers; protective services
officers; Worksafe inspectors; public sector employees of any
other State or any territory; and designated health service
providers. This new section 165CN continues the effect of
section 250 of the Principal Act introduced by the COVID-19
Omnibus (Emergency Measures) and Other Acts
Amendment Act 2020, which empowers the Secretary to appoint
a wider range of persons as authorised officers. This temporary
provision is to be repealed on 16 December 2021 and the
replication and extension of this power under new section 165CN
reflects the need for the availability of a power to appoint
specified types of persons as authorised officers to exercise
limited powers to assist with the response to, and management of,
the widespread serious risk to health posed by a pandemic
disease or disease of pandemic potential.
New section 165CO provides for the authorisation of powers of
authorised officers appointed under new section 165CN, which
are limited depending on that category of person appointed as an
authorised officer.
Subsection (1) retains the limitations on the powers that may be
conferred on authorised officers contained in section 250A of the
Principal Act (which was also inserted by the COVID-19
Omnibus (Emergency Measures) and Other Acts
Amendment Act 2020 and otherwise is repealed on
16 December 2021).
Division 11--Other matters
New section 165CP clarifies that, unless a contrary intention is
expressed, the powers under new Part 8A are in addition to any
other powers conferred by or under the Principal Act.
New section 165CQ provides that if a pandemic order and a
direction given by an authorised officer are inconsistent, the
pandemic order prevails to the extent of the inconsistency.
New section 165CR provides that pandemic declarations,
pandemic orders, the exercise of pandemic management powers,
pandemic information determinations and detention standards or
guidelines are not legislative instruments for the purposes of the
48
Subordinate Legislation Act 1994. New Part 8A does,
however, provide for procedural and review requirements similar
to the tabling and publication requirements under Part 3A and
scrutiny, suspension and disallowance measures under Part 5A of
the Subordinate Legislation Act 1994.
New section 165CS requires the Minister to establish a public
register of pandemic orders together with documents applied,
adopted or incorporated, to be called the Pandemic Order
Register. The purpose of requiring the Pandemic Order Register
is to increase accessibility to the law, recognising that pandemic
orders may apply widely in Victoria in relation to a vast range of
activities and that pandemic orders may be frequently amended
or replaced in response to emerging, developing or changing
threats to public health and wellbeing. The documents in the
Pandemic Order Register will be an authoritative and centralised
source of historical as well as current pandemic orders and their
associated documents. The Pandemic Order Register is required
to contain all pandemic orders as in force from time to time,
which will require updated versions of Pandemic Orders to be
published if a pandemic order or part of a pandemic order is
varied or extended or affected by disallowance of a part of a
pandemic order or an instrument that varies, extends or revokes a
pandemic order.
New section 165CT excludes the application of section 32 of the
Interpretation of Legislation Act 1984 so far as they relate to
the incorporation of another pandemic order in a pandemic order.
The obligation to keep an incorporated document for inspection
(under section 32(3)(b) and (4)(c) of the Interpretation of
Legislation Act 1984) is to be acquitted by virtue of that
document being freely available on the Pandemic Order Register.
The tabling and gazetting requirements under section 32 of the
Interpretation of Legislation Act 1984 are to be acquitted when
each version of the incorporated document is retained on the
Pandemic Order Register.
New section 165CU provides for circumstances where a limited
legal liability is transferred from the Chief Health Officer,
delegates of the Chief Health Officer, authorised officers and
Detention Review Officers to the State, in relation to anything
done or omitted to be done in good faith in the exercise of a
power or discharge of a duty under new Part 8A or Part 10 or
under any instrument or regulation under those Parts in the
49
reasonable belief that the act or omission was validly in the
exercise of a power or discharge of a duty. This immunity
applies to such acts or discharges of duty only at a time when a
pandemic declaration is in force.
New section 165CV indicates what can be relied on as
authoritative evidence in relation to instruments made under new
Part 8A.
New section 165CW provides that the invalidity of a state of
emergency declaration or a pandemic declaration does not affect
anything done in reliance on a pandemic declaration or a state of
emergency, such as an act or omission in the exercise of a power
or a discharge of duty, unless the declaration was not made in
good faith. This provision provides for certainty and stability for
a person to exercise powers and discharge duties under a relevant
declaration.
New section 165CX makes provision for a review of new
Part 8A, to be arranged by the Minister and to commence no
later than 2 years after the commencement of new Part 8A.
Clause 13 amends section 189(a) of the Principal Act to enable the Chief
Health Officer to authorise a specified class or classes of
authorised officers to exercise the public health risk powers.
Clause 14 amends section 199(2)(a) of the Principal Act to enable the Chief
Health Officer to authorise a specified class or classes of
authorised officers to exercise emergency powers.
Clause 15 inserts new section 212A into the Principal Act.
New section 212A removes the ability to not comply with a
requirement under or for the purposes of Part 8A to provide
information on the basis that doing so might tend to incriminate
the person or expose them to liability for a penalty. This
provision allows for the abrogation of the privilege against
self-incrimination, to facilitate and support the provision of
information important to the prevention and management of the
outbreak or spread of pandemic diseases and diseases of
pandemic potential. In responding to the serious risk to public
health posed by a pandemic disease or disease of pandemic
potential, access to information is often time-critical and requires
access to full and accurate information, particularly in relation to
information used for contact tracing purposes. Although it is
recognised that compelling the provision of information engages
50
consideration of a person's right to privacy, from the perspective
of prioritising the public interest in reducing or eliminating the
serious risk to public health posed by a pandemic disease or
disease of pandemic potential, it is intended that an authorised
officer should be empowered to compel a person to provide the
requested information, without that person being in fear of being
penalised or prosecuted in direct reliance on that information
(except if the person provided false or misleading information).
If the person provides contact tracing information, Division 8 of
new Part 8A applies to that information.
To balance the abrogation of the privilege against self-
incrimination, new section 212A ensures that information
provided by a natural person in compliance with a requirement
under or for the purposes of new Part 8A is not admissible in
evidence against the person in a criminal proceeding and must
not be used in any action, proceeding or process that may make
the person liable to a criminal penalty, except in relation to a
proceeding in respect of the provision of false or misleading
information.
Clause 16 inserts new section 219A into the Principal Act.
New section 219A provides that proceedings for the aggravated
offence of failing to comply with a pandemic order, direction
or other requirement under new section 165BO can only be
brought following approval from the Secretary or the Chief
Commissioner of Police. This reflects that proceedings are only
to be brought in prosecution of an aggravated offence where the
alleged breach is egregious conduct
Clause 17 inserts new Division 4A in Part 11 of the Principal Act.
New section 227A provides additional detail relating to requests
for assistance provided to authorised officers under new section
165BC, section 192 or section 202.
Such requests may relate generally to the exercise of powers in
the context of a particular pandemic or emergency, or in relation
to the exercise of particular public health risk powers, emergency
powers or pandemic management powers. Where requests relate
generally to the exercise of powers, they must be made by the
Secretary. All other requests may be made by an authorised
officer.
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New section 227B sets out certain types of assistance that may be
provided by police officers, if requested by an authorised officer
or the Secretary. This provision does not limit sections 165BC,
192 or 202.
New section 227B provides that police officers can provide the
following types of assistance can be provided by a police officer
where it is reasonably necessary to assist the authorised officer in
exercising a power under the Principal Act. Such assistance can
include, but is not limited to--
• effecting warrantless entry to a premises, where an
authorised officer has made a specific request for this
form of assistance (whether or not the authorised officer
is in their physical presence)
• compelling a person to provide their name, address and
any other information that may assist the authorised
officer; and
• using reasonable force to assist the authorised officer in
exercising a power (for example, to assist with entry
into premises or to assist with detaining a person who is
required to be detained).
Clause 18 inserts new Division 5A of Part 11 into the Principal Act.
New section 231A enables the Secretary to make a policy to
promote compliance with, and the enforcement of, the Principal
Act, or specific provisions within the Principal Act.
If the Secretary makes a compliance and enforcement policy, that
policy must set out options for promoting compliance with, and
enforcement of, the Act or specified provisions, and must provide
guidance on how persons involved in compliance and
enforcement functions may or must use those options.
The policy may, but does not need to, also set out guidance on
any other matters relevant to compliance and enforcement under
the Principal Act.
New section 231A also provides that any person who performs a
function or exercises a power under the Principal Act must have
regard to any applicable compliance and enforcement policy in
performing that function or exercising that power.
52
Clause 19 inserts new sections 248C and 248D into the Principal Act.
New section 248C continues appointments of authorised officers
made under section 30(1A) of the Principal Act despite the
expiry of section 250 of the Principal Act on 16 December 2021.
New section 248D provides a power for the Governor in Council
to make transitional regulations consequent on the enactment of
this Act.
Part 3--Amendments relating to concessional infringement
scheme
Clause 20 inserts new definitions in section 3(1) of the Principal Act for the
purposes of the new concessional infringement penalty scheme
for pandemic-related infringement offences contained in new
Part 8B, inserted by clause 21. Clause 21 sets out the following
definitions--
• attachment of debts direction, which is defined to have
the same meaning as it has in the Fines Reform
Act 2014;
• attachment of earnings direction, which is defined to
have the same meaning as it has in the Fines Reform
Act 2014;
• Director, Fines Victoria, which is defined to mean the
person employed as Director, Fines Victoria under
section 4 of the Fines Reform Act 2014;
• enforcement agency, which is defined to have the same
meaning as it has in the Infringements Act 2006;
• fine, which is defined to have the same meaning as it
has in the Fines Reform Act 2014;
• Health Privacy Principles, which is defined to have the
same meaning as it has in the Health Records
Act 2001;
• Information Privacy Principles, which is defined to
have the same meaning as it has in the Privacy and
Data Protection Act 2014;
• infringement fine, which is defined to have the same
meaning as it has in the Infringements Act 2006;
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• infringement penalty, which is defined to have the
same meaning as it has in the Infringements Act 2006;
• land charge, which is defined to have the same meaning
as it has in the Fines Reform Act 2014;
• seven-day notice, which is defined to have the same
meaning as it has in the Fines Reform Act 2014;
• vehicle seizure and sale notice, which is defined to
have the same meaning as it has in the Fines Reform
Act 2014.
Clause 21 inserts new Part 8B in the Principal Act. New Part 8B provides
for a concessional infringement penalty scheme for pandemic-
related infringement offences. The scheme is intended to assist
affected fine recipients who are experiencing financial hardship.
New section 165CY sets out eligible offences and eligible
persons for the purposes of the new concessional infringement
penalty scheme.
New section 165CY(1) provides that an offence against the
Principal Act or regulations made under the Principal Act in
respect of a natural person will be an eligible offence if--
• the offence is prescribed by the regulations; and
• the commission of the offence by the natural person
relates to the performance of a function or the exercise
of a power in respect of a pandemic disease or a disease
of pandemic potential.
New section 165CY(2) provides that a person is an eligible
person in relation to an eligible offence if the person is
determined to be an eligible person in relation to the offence
under new section 165DC(1).
New section 165CZ provides for applications for a concessional
penalty rate under the new concessional infringement penalty
scheme for pandemic-related infringement offences.
New section 165CZ(1) provides that a natural person issued with
an infringement notice in respect of an eligible offence may
apply to the Director, Fines Victoria for a determination under
new section 165DC(1) that they are an eligible person in respect
of the eligible offence.
54
A note to new section 165CZ(1) states that if the Director, Fines
Victoria determines under section 165DC(1) that a person is an
eligible person, the infringement penalty may be reduced under
new section 165DC(3).
New section 165CZ(2) provides that an application may also be
made by a person acting on behalf of the person issued with the
infringement notice.
New section 165CZ(3) provides that an application must--
• be in writing; and
• provide evidence that the applicant is a prescribed
person or a person included in a prescribed class; and
• provide the applicant's address for service; and
• refer to the infringement notice to which the application
relates; and
• include any other prescribed information.
New section 165D provides that an application must be made
before any of the following occur in respect of the infringement
offence to which the application relates--
• the expiry of a seven-day notice served on the person;
• the making of an attachment of earnings direction or an
attachment of debts direction;
• the recording of a land charge;
• the seizing of property under a vehicle seizure and sale
notice;
• payment of the infringement penalty and any fees added
to the infringement penalty under the Infringements
Act 2006, the Fines Reform Act 2014 or any
regulations made under those Acts;
• waiver of the unexpired period of a seven-day notice
under section 36 of the Sheriff Act 2009;
• registration of the infringement penalty with the
Children's Court under clause 4 of Schedule 3 to the
Children, Youth and Families Act 2005.
55
New section 165DA provides that the Director, Fines Victoria
may specify how any information supplied in an application
under new section 845 is to be verified.
New section 165DB provides for the suspension of enforcement
action if a person makes an application to the Director, Fines
Victoria for a determination under new section 165DC(1) that
they are an eligible person in respect of an eligible offence.
New section 165DB(1)(a) provides that the Director, Fines
Victoria must suspend any enforcement action, and not take any
further enforcement action, under the Fines Reform Act 2014
against the applicant in respect of each eligible offence included
in their application.
New section 165DB(1)(b) provides that the Director, Fines
Victoria may direct an enforcement agency to suspend any
enforcement action, and not take any enforcement action, under
the Infringements Act 2006 against the applicant in respect of
each eligible offence included in the application.
New section 165DB(2) sets out the formal requirements for a
direction by the Director, Fines Victoria to an enforcement
agency to suspend enforcement action under new section 165DB
(1)(b).
New section 165DB(3) provides that the suspension of
enforcement action under new section 165DB(1) begins when the
application is received by the Director, Fines Victoria and ends
on the date notice is given by the Director, Fines Victoria to the
enforcement agency of the outcome of the application.
New section 165DC(1) provides that the Director, Fines Victoria
must determine that an applicant under the scheme is an eligible
person in respect of an eligible offence if the Director is satisfied
that--
• the applicant was served with an infringement notice in
relation to the eligible offence; and
• the applicant is a prescribed person or a person included
in a prescribed class.
New section 165DC(2) provides that the Director, Fines Victoria
must determine that an applicant is not an eligible person in
respect of a relevant eligible offence if the Director is satisfied
that the criteria in new section 165DC(1) are not met.
56
New section 165DC(3) provides that if the Director, Fines
Victoria determines that a person is an eligible person in respect
of an eligible offence, the Director must reduce the infringement
penalty in respect of the eligible offence--
• to the prescribed amount in respect of the eligible
offence; or
• if a method for calculating the rate of reduction for an
eligible offence is prescribed, the amount calculated in
accordance with the prescribed method.
New section 165DC(4) provides that if the Director, Fines
Victoria reduces the infringement penalty in respect of the
eligible offence, the infringement penalty is taken to be reduced
in accordance with the determination.
New section 165DC(5) provides that despite new section
165DC(4), if the applicant has already paid an amount in respect
of the eligible offence that exceeds the infringement penalty as
reduced, the person is not entitled to a refund of the excess.
New section 165DD provides for notification of a determination
by the Director, Fines Victoria that an applicant is an eligible
person in respect of an eligible offence.
New section 165DD(1) provides that new section 165DD applies
if the Director determines--
• that an applicant is an eligible person in respect of an
eligible offence; and
• that the infringement penalty is reduced, and specifies
the amount of the reduced infringement penalty
resulting from the determination.
New section 165DD(2) provides that the Director, Fines Victoria
must, in writing, notify the following of the determination--
• the applicant; and
• if a direction to suspend enforcement action has been
given under new section 165DB(1)(b) to an
enforcement agency, the enforcement agency.
New section 165DD(3) provides that the applicant is not liable
for any fees related to any fine which is the subject of an
application under the scheme that accrue while the application is
being determined.
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New section 165DD(4) provides that the period during which an
enforcement agency that has been given a direction to suspend
enforcement action under new section 165DB(1)(b) in relation to
an eligible offence may commence a proceeding for that offence
is extended by 6 months after the date of the notice given under
new section 165DD(2)(b).
New section 165DE(1) and (2) provide that if the Director, Fines
Victoria determines that a person is not an eligible person in
respect of an eligible offence under the scheme, the Director,
Fines Victoria must give written notice of that determination
within 21 days of its making to--
• the applicant; and
• any enforcement agency to which the Director, Fines
Victoria has directed the agency to suspend enforcement
under new section 165DB(1)(b).
New section 165DE(3) provides that within 21 days of the
Director, Fines Victoria notifying an applicant of a determination
that the person is not an eligible person, the person must--
• pay the infringement penalty and any fees that have
been added to the infringement penalty under the
Infringements Act 2006, the Fines Reform Act 2014
or any regulations made under those Acts; or
• take any other action in relation to the fine which the
person may take under the Principal Act, the
Infringements Act 2006 or the Fines Reform
Act 2014.
New section 165DE(4) provides that an applicant under the
scheme is not liable for any fees related to any fine which is the
subject of an application under the scheme that accrue while the
application is being determined.
New section 165DE(5) provides that the period during which
an enforcement agency that has been given a direction under
new section 165DB(1)(b) in relation to an eligible offence
may commence a proceeding for that offence is extended by
6 months after the date of the notice given to the agency under
new section 165DE(2)(b).
58
Part 4--Consequential amendments relating to Parts 2 and 3
Division 1--Consequential amendments relating to Part 2
Division 1 of Part 4 sets out various consequential amendments to other Acts
relating to Part 2 of the Bill.
Clause 22 amends section 480(1)(a) and (b) of the Children, Youth and
Families Act 2005 to replace references to the "Department of
Health and Human Services" with references to the "Department
of Health", to reflect a machinery of government change.
Clause 23 consequentially amends section 600M(4) of the Children, Youth
and Families Act 2005. The amendment made by paragraph (a)
will enable the Secretary or an officer in charge of a remand
centre, youth residential centre or youth justice centre to have
regard to any relevant pandemic order under the Public Health
and Wellbeing Act 2008 relating to COVID-19 or any other
infectious disease in determining a period of isolation of a
detained person for the purposes of detecting COVID-19 or any
other infectious disease, or preventing or mitigating transmission.
The amendment by paragraph (b) replace references in section
600M(4)(b) of the Children, Youth and Families Act 2005 to
replace references the "Department of Health and Human
Services" with references to the "Department of Health", to
reflect a machinery of government change.
Clause 24 consequentially amends section 600N(3) of the Children, Youth
and Families Act 2005. The amendment made by paragraph (a)
will enable the Secretary, in determining whether or not to give
effect to an entitlement for a person in isolation to access the
outdoors and undertake outdoor recreational activities, to have
regard to any relevant pandemic order under the Public Health
and Wellbeing Act 2008 relating to COVID-19 or any other
infectious disease.
The amendment made by paragraph (b) replaces references in
section 600N(3)(b) of the Children, Youth and Families
Act 2005 to replace references the "Department of Health
and Human Services" with references to the "Department of
Health", to reflect a machinery of government change.
59
Clause 25 consequentially amends section 112U of the Corrections
Act 1986. The amendment made by paragraph (a) will enable
the Governor or the Secretary, in exercising a power under
Part 10B (which relates to measures to prevent, detect and
mitigate the risk of COVID-19 or related health risks in relation
to the prison system) to have regard to any relevant pandemic
order under the Public Health and Wellbeing Act 2008 relating
to COVID-19 or any other infectious disease.
The amendment made by paragraph (b) replaces references
in section 112U(b) of the Corrections Act 1986 to the
"Department of Health and Human Services" with references to
the "Department of Health", to reflect a machinery of government
change.
Clause 26 consequentially amends section 7A(3) of the Court Security
Act 1980. The amendments made by paragraphs (a) and (b)
ensure that a reference to "the security, good order or
management of the court premises" includes a reference to any
relevant pandemic order made under new Part 8A of the Public
Health and Wellbeing Act 2008 in relation to the COVID-19
pandemic at the court premises.
Clause 27 consequentially amends section 42C of the Evidence
(Miscellaneous Provisions) Act 1958. That Act provides for
certain persons to appear before a court by audio link or audio
visual link in certain "exceptional circumstances". The
amendments made by this clause expand the definition of
exceptional circumstances to include a pandemic declaration
made under new section 165AB of the Public Health and
Wellbeing Act 2008 in an area where an accused is required to
appear before a court or required to transit through in order to
appear before a court.
Clause 28 consequentially amends section 190 of the Occupational Health
and Safety Act 2004. The amendments made by this clause
provide that, for the purposes of section 112 of that Act (which
relates to issuing of prohibition notices), a failure to comply
with--
• a pandemic order relating to the COVID-19 pandemic
made under new section 165AI of the Public Health
and Wellbeing Act 2008;
60
• a direction relating to the COVID-19 pandemic given by
an authorised officer under section 200(1)(d), new
section 165B(1)(a) or new section 165BA(1)(a) of the
Public Health and Wellbeing Act 2008--
is taken to be an activity that involves an immediate risk to the
health or safety of a person (which is one of the grounds for
issuing a prohibition notice).
Clause 29 consequentially amends section 191 of the Occupational Health
and Safety Act 2004. The amendments made by this clause
provide that, for the purposes of section 120 of that Act (which
relates to giving of workplace directions), a failure to comply
with--
• a pandemic order relating to the COVID-19 pandemic
made under new section 165AI of the Public Health
and Wellbeing Act 2008;
• a direction relating to the COVID-19 pandemic given
by an authorised officer under section 200(1)(d), new
section 165B(1)(a) or new section 165BA(1)(a) of the
Public Health and Wellbeing Act 2008--
is taken to be an activity that involves an immediate risk to the
health or safety of a person (which is one of the grounds for
issuing a direction).
Clause 30 amends section 192 of the Occupational Health and Safety
Act 2004, which currently provides for the repeal of Part 16 of
that Act (which sets out a range of COVID-19 temporary
measures) on 16 December 2021. The clause amends the repeal
date to be 26 April 2022.
Clause 31 consequentially amends section 17(1) of the Parliamentary
Committees Act 2003 to provide that the Scrutiny of Acts and
Regulations Committee has the functions conferred on it by the
Public Health and Wellbeing Act 2008. Division 4 of new
Part 8A gives the Scrutiny of Acts and Regulations Committee
functions relating to scrutiny, suspension and disallowance of
pandemic orders.
Clause 32 consequentially amends section 197H(3) of the Planning and
Environment Act 1987. The amendments expand the definition
of emergency declaration in that section to provide an exception
to compliance with certain requirements in relation to inspection
61
of documents if there is a pandemic declaration under new
section 165AB of the Public Health and Wellbeing Act 2008.
Clause 33 consequentially amends section 105A(6) of the Public
Administration Act 2004, which relates to a declaration of an
emergency situation for the purposes of Part 7A of that Act.
The amendment expands the meaning of declaration of a state
of emergency for the purposes of section 105A to include a
pandemic declaration under new section 165AB of the Public
Health and Wellbeing Act 2008.
Clause 34 amends section 105E the Public Administration Act 2004 to
replace various references in that section to "an employee" with
references to "a public sector employee". This clarifies that the
power of a public sector body Head to take actions in relation to
employees under section 105E (when a declaration that an
emergency situation exists is in force under Part 7A of that Act)
can be exercised in relation to any public sector employee as
defined in the Public Administration Act 2004.
Clause 35 consequentially amends section 52(5) of the Victoria Police
Act 2013. Section 52(4) of that Act provides that a protective
services officer on duty in an emergency has in the emergency
area all the duties and powers imposed or conferred on a
protective services officer under that Act or any other Act.
The amendments made by this clause expand the meaning of
emergency for the purposes of section 52 to include a pandemic
declaration being made under new section 165AB of the Public
Health and Wellbeing Act 2008, and expand the meaning of
emergency area to include the pandemic management area to
which a pandemic declaration applies.
Division 2--Consequential amendment that commences on
16 December 2021
Clause 36 makes consequential amendments to the Principal Act relating to
the COVID-19 state of emergency. These amendments
commence on 16 December 2021.
Subclause (1) amends section 198(7)(c) of the Principal Act to
omit words and phrases in that section providing for the
emergency declaration in respect of the COVID-19 pandemic to
continue in force for a total period of 21 months. This will no
longer be required after the expiry or revocation of the state of
62
emergency in respect of the COVID-19 pandemic (which cannot
be extended beyond 15 December 2021, noting the state of
emergency declaration was first made on 15 March 2020).
Subclause (2) repeals section 198(8A) and (8B) of the Principal
Act, which relate to reporting on the COVID-19 state of
emergency if the state of emergency declaration is extended
beyond 6 months. These reporting arrangements will no longer
be required after the expiry or revocation of the state of
emergency in respect of the COVID-19 pandemic (which cannot
be extended beyond 15 December 2021).
Division 3--Consequential amendments relating to Part 3
Clause 37 makes a consequential amendment to the definition of a fines
application in section 3 of the Fines Reform Act 2014. The
amendment inserts a reference to an application under new
section 165CZ(1) of the Principal Act as new paragraph (ab) in
the definition. The effect of this amendment is to enliven the
deemed service provisions in section 181 of the Fines Reform
Act 2014 where the Director serves a document by post to
an address supplied by a person in an application under new
section 165CZ(1).
Clause 38 amends section 5 of the Fines Reform Act 2014 to expand the
functions and powers of the Director, Fines Victoria set out in
that provision to include the performance of functions under new
Part 8B of the Principal Act.
Clause 39 makes consequential amendments to section 8 of the Fines
Reform Act 2014 to extend the Director, Fines Victoria's powers
to delegate functions, powers and duties to include the delegation
of functions, powers and duties under new Part 8B of the
Principal Act.
Clause 40 amends section 17 of the Fines Reform Act 2014 to provide for
a 6-month extension of the period for registering an infringement
fine for enforcement under the Fines Reform Act 2014 where--
• an application for a determination has been made under
new section 165DC(1) of the Principal Act; and
• a direction has been given to an enforcement agency
under new section 165DB(1)(b).
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The 6-month extension applies as from the date of service of the
notice of the outcome of the application on the applicant under
new section 165DD(2)(a) or new section 165DE(2)(a), as
applicable.
Clause 41 makes a consequential amendment to section 184 of the Fines
Reform Act 2014 to insert a reference to new Part 8B of the
Principal Act in that provision. This extends the scope of the
offence of intentionally providing false or misleading information
to information provided in writing under the new concessional
infringement penalty scheme in new Part 8B of the Principal Act.
Part 5--Amendments relating to quarantine detention fees during
the COVID-19 pandemic
Division 1--Certain requirements disapplied
Clause 42 substitutes section 238D of the Principal Act, which disapplies
certain requirements for consultation under sections 6 and 7 of
the Subordinate Legislation Act 1994.
The disapplication will only apply to the first statutory rule made
under section 238A, 238B or 238C of the Principal Act after the
commencement of clause 42 of the Bill.
Division 2--Other matters
Clause 43 amends section 238B of the Principal Act, to enable regulations
to prescribe matters dealing with COVID-19 Quarantine
Victoria's (CQV) own initiative waiver under new section 260A
of the Principal Act, which is being inserted by clause 52 of the
Bill.
Clause 44 repeals section 238E of the Principal Act. Repealing this section
will allow quarantine fees to be charged beyond 31 December
2021.
Clause 45 inserts new sections 248A and 248B to provide for transitional
arrangements associated with the charging of a late fee to be set
out in new sections 260B to 260D of the Principal Act. The
provision enabling the charging of a late fee is being inserted by
clause 52 of the Bill.
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New section 248A inserts a transitional definition of quarantined
person to provide that the definition of a quarantined person in
the Principal Act will continue to apply after the commencement
of section 256(b) of the Principal Act, which is being inserted by
clause 47. Section 256 of the Principal Act defines a
quarantined person.
New section 248B inserts a transitional provision to enable CQV
to issue a payment reminder notice to a person in accordance
with new sections 260B and 260C as if the person became liable
to pay fees on or after the commencement of clause 52 of the
Bill.
CQV may only do this where a person is liable to pay fees under
section 257 of the Principal Act and an amount of the fees
remains unpaid immediately before the commencement of
clause 52 of the Bill.
New section 260B of the Principal Act, which is being inserted
by clause 52 of the Bill, outlines the circumstances when CQV
may issue a first payment reminder notice. Section 260C of the
Principal Act, which is being inserted by clause 52 of the Bill,
outlines the circumstances when CQV may issue further
reminder notices.
Clause 46 amends section 255 of the Principal Act to insert new and
substitute existing definitions.
The following new definitions are inserted--
• contact details, for the purposes of section 257 of the
Principal Act, means the person's telephone number,
email address or postal address;
• first payment reminder notice means a reminder issued
under section 260B of the Principal Act, which is being
inserted by clause 52 of the Bill;
• further payment reminder notice means a reminder
issued under section 260C of the Principal Act, which is
being inserted by clause 52 of the Bill.
The definition of specified place of detention is substituted to
mean the place of detention specified by an authorised officer
under section 200(1) of the Principal Act, or in a pandemic
order made under new section 165AI of the Principal Act, or by
an authorised officer in the exercise of a pandemic management
65
power under new section 165B(1)(b) or 165BA(1)(b) of the
Principal Act.
Clause 47 substitutes section 256(b) of the Principal Act to include persons
detained under new section 165B(1)(b) or 165BA(1)(b) of the
Principal Act in the definition of a quarantined person under
new section 256(b) of the Principal Act.
Clause 48 inserts new section 257(4) into the Principal Act.
New section 257(4) provides that another person may accept
liability to pay a detained person's prescribed quarantine fees by
providing written notice to CQV stating their acceptance of the
liability.
Clause 49 amends section 258 of the Principal Act.
Subclause (1) amends section 258(1) of the Principal Act to
provide that CQV is required to provide an invoice, subject to
new subsection (1A).
Subclause (2) inserts new subsection (1A) into section 258 of the
Principal Act to provide that CQV is not required to give an
invoice to a person if--
• the prescribed fees the person is liable to pay are nil; or
• payment of all the fees the person is liable to pay is
waived under section 260A; or
• any other prescribed circumstance applies.
Clause 50 inserts a new section 258A into the Principal Act.
New section 258A(1) provides that CQV may request a
prescribed body to provide it with the contact details of a person
liable to pay fees under section 257 of the Principal Act if
CQV--
• requires those details to give the person an invoice
under section 258 of the Principal Act; and
• has made reasonable attempts to obtain those details
from the person directly; and
• despite its reasonable attempts has not obtained those
details.
66
New section 258A(2) enables a prescribed body to provide CQV
with the requested contact details if it is satisfied the request has
been made in accordance with new section 258A(1).
New section 258A(3) provides that CQV may only use or
disclose a person's contact details--
• to give the person an invoice under section 258 of the
Principal Act; or
• to recover fees that the person is liable to pay under
section 257 of the Principal Act; or
• for another purpose permitted by law.
New section 258A(4) provides that for the purpose of the
Privacy and Data Protection Act 2014 and any other Act--
• the provision of a person's contact details under
subsection (2) is taken to be a disclosure authorised by
law; and
• the use or disclosure of a person's contact details under
subsection (3) is taken to be a use or disclosure
authorised by law.
New section 258A(5) requires that, in using and disclosing a
person's contact details, CQV must comply with the Information
Privacy Principles set out in Schedule 1 to the Privacy and Data
Protection Act 2014.
Clause 51 amends section 259 of the Principal Act.
Subclause (1) substitutes the heading to section 259 of the
Principal Act. The heading to section 259 of the Principal Act is
"Waiver of fees--application" which replaces the previous
heading, "Waiver of fees".
Subclause (2) inserts the words, "other than a person liable under
section 257(4).". The purpose of this amendment is to make a
person who has accepted liability to pay fees on behalf of another
quarantined person ineligible to apply for a waiver of payment of
those fees.
67
Clause 52 inserts new sections 260A to 260D into the Principal Act.
New section 260A(1) enables CQV, on its own initiative, to
waive payment of fees a person is liable for under section 257 of
the Principal Act. In exercising this power, CQV is to have
regard to any prescribed matters or circumstances.
Section 257 of the Principal Act sets out the circumstances when
a person is liable to pay quarantine detention fees.
New section 260A(2) provides that, subject to new section
260A(3), CQV must give notice of a waiver to the person.
New section 260A(3) enables CQV to not issue notice of a
waiver under subsection (1) if it is impractical or inappropriate,
or in the prescribed circumstances. Such circumstances will be
prescribed under regulations, however, they may include--
• where the person is a refugee and notice may cause
distress; or
• where the waiver was made in relation to a deceased
person and notice may constitute distress to the notice
recipient.
New section 260A(4) provides that such a notice must contain
any prescribed information under regulations, if any.
New section 260B(1) outlines the circumstances in which CQV
may issue a payment reminder notice or reminder notice fee.
CQV may issue a first payment reminder notice to a person liable
to pay fees under section 257 if--
• an invoice has been issued in accordance with
section 258 of the Principal Act; and
• the relevant date has passed; and
• the amount of the fees has not been paid in full; and
• there are no pending waiver applications or payment
plans for that amount of fees.
New section 260B(2)(a) defines the term relevant date to be the
date specified for the amount in the most recent decision of
CQV on an application relating to that amount, if any waiver
applications or payment plan applications have been made
relating to that amount.
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In any other case, new section 260B(2)(b) provides that the date
is the date specified in the invoice given under section 258 of the
Principal Act. Section 258 of the Principal Act requires CQV to
invoice quarantined persons for fees.
If CQV issues a first payment reminder notice, then the due date
for the payment is extended to the date specified in that notice.
This date must be at least 30 days after the date that notice was
issued.
New section 260B(5) provides that a first payment reminder
notice must be in writing, contain the prescribed information,
and explain the circumstances in which the person may become
liable to pay the further payment reminder notice fee under new
section 260D, which is being inserted by clause 52 of the Bill.
New section 260C provides that CQV may issue a further
payment reminder notice to a person if--
• the relevant date by which the fee amount for which a
first payment reminder notice was previously issued has
passed; and
• the amount has not been paid in full; and
• there are no pending waiver applications or payment
plan applications for that amount of fees.
For the purposes of this provision, the relevant date is--
• the date specified for that amount in the most recent
decision of CQV on a waiver or payment plan
application relating to that amount of fees, since the first
payment reminder notice was issued; or
• the date specified in the first payment reminder notice.
If CQV issues a further payment reminder notice, then the due
date for the payment is extended to the date specified in that
notice. This date must be at least 30 days after the date on which
this further payment reminder notice was issued.
A further payment reminder notice made under this section must
be in writing, contain any prescribed information and explain that
the person is liable to the further payment reminder notice fee
under the following new section 260D.
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New section 260D provides that a person issued a further
payment reminder notice under new section 260C is liable to pay
the prescribed further payment reminder notice fee. The
prescribed further payment notice fee must be reasonably
referrable to the costs incurred by the State in recording the
unpaid amount of fees. CQV is not permitted to issue more than
one further payment reminder notice to a person.
Clause 53 amends section 261 of the Principal Act, which currently requires
a person liable to pay fees under section 257 of the Principal Act
or any part of the fees not waived under section 259 of the
Principal Act, to the State. The purpose of the amendment is
to specify that a person who has their fees waived under new
section 260A is not required to pay fees.
New section 260A is inserted by clause 52 of the Bill.
Clause 54 repeals section 264 of the Principal Act to allow fees to be
charged beyond 31 December 2021. Section 264 currently
provides for Part 14 of the Principal Act to be repealed on
31 December 2021. Part 14 sets up the legislative framework
for quarantine fees.
Part 6--Amendment of Infringements Act 2006 and Fines Reform
Act 2014
Division 1--Amendment of Infringements Act 2006
Clause 55 substitutes a new definition of special circumstances in
section 3(1) of the Infringements Act 2006. The new definition
provides that special circumstances has the meaning given by
new section 3A. Section 3(3) of the Infringements Act 2006
is also repealed, as this provision is reproduced in new
section 3A(2).
Special circumstances is one of the grounds on which fine
recipients who have circumstances such as serious mental
ill-health, substance addiction issues, or homelessness can
seek review and withdrawal of their fines.
Clause 56 inserts new section 3A into the Infringements Act 2006 to
provide for a new definition of the term special circumstances.
The changes are in response to recommendation 7 of the Fines
Reform Advisory Board, which delivered its Report on the
Delivery of Fines Reform to the Government in 2020.
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New section 3A(1)--
• makes changes to the requirement for a person to show
a causative link (or "nexus") between their
circumstances and their offending conduct; and
• creates a new category of special circumstances for fine
recipients who are experiencing extremely serious
circumstances that are long-term in nature and mean
that the person is unable to pay or otherwise deal with
their infringement fine.
New section 3A(1) provides that special circumstances in
relation to a person means--
• a mental or intellectual disability, disorder, disease or
illness where the disability, disorder, disease or illness
contributes to the person having a significantly reduced
capacity to understand that conduct constitutes an
offence or to control conduct that constitutes an offence;
or
• a serious addiction to drugs, alcohol or a volatile
substance within the meaning of section 57 of the
Drugs, Poisons and Controlled Substances Act 1981
where the serious addiction contributes to the person
having a significantly reduced capacity to understand
that conduct constitutes an offence or to control conduct
that constitutes an offence; or
• homelessness determined in accordance with the
prescribed criteria (if any) where the homelessness
contributes to the person having a significantly reduced
capacity to control conduct that constitutes an offence;
or
• family violence within the meaning of section 5 of the
Family Violence Protection Act 2008 where the
person is a victim of family violence and the family
violence contributes to the person having a significantly
reduced capacity to control conduct that constitutes an
offence; or
• circumstances experienced by the person that are long-
term in nature and make it impracticable for them to pay
their infringement penalty and any applicable fees or
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otherwise deal with their infringement fine, and that do
not solely or predominantly relate to the person's
financial circumstances.
The changes to the existing categories of special circumstances
will simplify the requirement for a person to satisfy the causative
link (or "nexus") between their circumstances and their offending
behaviour. The change means that it will be sufficient for the
person to show that their circumstances contributed to them
having a significantly reduced capacity, to understand or control
their offending conduct, or to control that conduct (as applicable).
The current requirement is for a person to show that their
circumstances resulted in them being unable to understand
or control their offending conduct, or to control that conduct
(as applicable).
The new category of special circumstances provided for in new
section 3A(1)(e) is intended to apply only to a very small cohort
of fine recipients who have long-term and extremely serious
circumstances that--
• may not have been present at the time of offending; and
• are particularly disabling or incapacitating in nature;
and
• result in the person being unable to pay or otherwise
deal with their infringement fine.
The definition excludes any circumstances that solely or
predominantly relate to the person's financial circumstances.
The infringements system contains other mechanisms for dealing
with financial hardship, including payment plans, payment
arrangements and the work and development permit scheme.
An example of extremely serious circumstances that might come
within the new category is a person who is subject to an inpatient
treatment order for a mental illness under the Mental Health
Act 2014.
Division 2--Amendment of Fines Reform Act 2014
Clause 57 makes a minor consequential amendment to the note at the foot
of section 10M(3) of the Fines Reform Act 2014 so that the note
refers to the substituted definition of special circumstances in
new section 3A of the Infringements Act 2006.
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Part 7--Repeal of this Act
Clause 58 provides for the automatic repeal of this amending Act one year
after its commencement. The repeal of this Act does not affect
the continuing operation of the amendments made by this Act
(see section 15(1) of the Interpretation of Legislation
Act 1984).
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