The Victorian government have introduced a COVID omnibus bill into the Parliament. Here is Victorian Attorney-General Jill Hennessy explaining the bill to the parliament. This is the bit of her explanation that I want to highlight (emphasis added):
The ability for cases of COVID-19 to be proactively managed is critical to the safe operation of Victoria’s response to COVID-19. To ensure that the Government has the flexibility to respond to the health risks posed by the COVID-19 pandemic, greater scope is required to issue detention notices to hold people in accommodation.
The Bill will provide further emergency powers to authorised officers to issue detention notices and detain particular high-risk personsif the authorised officer reasonably believes that a person is likely to refuse or fail to comply with a direction made by the Chief Health Officer. High-risk persons are defined to include those diagnosed with COVID-19 and still infectious, and close contacts of those people.
This amendment will enable the authorised officer to detain individuals for the purpose of ensuring compliance with the relevant direction during the COVID-19 state of emergency. This amendment will ensure that in instances where a person is COVID-19 positive or a close contact and is likely to refuse or fail to comply the person can be detained into quarantine to ensure the safety of their family, close contacts and the wider community.
The Bill ensures that any detention on this basis is accompanied by robust safeguards to protect the health and wellbeing of detained individuals. These include detention being for the minimum duration required (noting that any period of isolation may be informed by current health advice). The Bill also ensures a person detained is provided with medical and other support that they require.
This is a reasonable, necessary and proportionate amendment that is time-limited and for the express purpose of ensuring that we, as a community, can respond to this significant health crisis. This amendment will help ensure the safety and security of Victoria.
If this bill passes the Parliament, Victorians will be liable to detention without trial for an indefinite period of time if the ‘authorised officer’ reasonably believes the person will not comply with a directive from an unelected bureaucrat.
In another part of the same proposed legislation the definition of who can be appointed as an authorised officer is expanded.
This Bill will authorise the Secretary of the Department of Health and Human Services to appoint a broader class of persons to perform the roles and functions of an authorised officer under the Public Health and Wellbeing Act. Currently, only persons employed under Part 3 of the Public Administration Act 2004 can be appointed as authorised officers.
The broader class of persons who may be appointed as authorised officers may include public sector employees from Victoria and other Australian jurisdictions. For example, health services staff, WorkSafe officers such as Inspectors, Victoria Police members and Protective Services Officers.
Now for the sick joke:
Ms HENNESSY (Altona—Attorney-General, Minister for Workplace Safety, Minister for the Coordination of Justice and Community Safety: COVID-19) (10:20): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020.
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter) I, on behalf of the Premier, make this Statement of Compatibility with respect to the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
This amendment engages, but does not limit, the right not to be subject to arbitrary detention in section 21(2) of the Charter.
Section 21(2) of the Charter requires that a person must not be unlawfully or arbitrarily detained. Detention under section 200(1)(a) is clearly a deprivation of liberty for a finite and regularly reviewed period of time. The amendments will satisfy the requirements of lawfulness as they will constitute the relevant law. It is likely that any detention would be considered arbitrary if it was disproportionate or unjust, or if it was not based on any identifiable criterion and was therefore able to be exercised capriciously (although there remains conflict in the Victorian jurisprudence about the meaning of the word ‘arbitrary’).
The amendments will allow a person to be detained under the existing emergency detention power in the PHW Act on the basis of what a designated authorised officer reasonably believes a person is ‘likely’ to do, or to refuse or fail to do. Although these terms do involve an authorised officer making an assessment or prediction of future behaviour, I consider that the criteria for that assessment are sufficiently clear so as to avoid the power being exercised arbitrarily. I also note that the courts have accepted the use of protective detention powers in other circumstances where an assessment is required of future risk (such as under the preventative detention regimes for serious sex offenders). Although the prediction of future risk is not an exact science, where it has a rational basis, it will not be arbitrary.
I therefore conclude that although a person may be deprived of their liberty in an expanded range of circumstances, any such deprivation will be lawful, will not be arbitrary and so, will be compatible with the right in section 21(2) of the Charter.
Translation – you are not being arbitrarily detained because we have passed a law that says you can be detained if an ‘authorised officer’ has a reasonable belief about your possible future behaviour.