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EXCLUSIVE: Victorian Attorney General confirms pre-emptive detention fears

30 September 2020

3:33 PM

30 September 2020

3:33 PM

The Victorian state Attorney General, Jill Hennessy, has written to the Law Institute of Victoria attempting to allay concerns about the draconian COVID-19 Omnibus (Emergency Measures) Bill – but instead only confirmed fears about it. 

The bombshell comes as The Herald Sun reports that the Andrews Government is in negotiations with the Legislative Council crossbenchers who passed its contentious extension to Victoria’s state of emergency.

On September 17 the LIV wrote to the AG expressing concerns about the impact the Bill and singled out its impact on rights of people afforded under the Mental Health Act, which would be overridden. 

“The LIV anticipates that it (the Bill) would likely operate disproportionately, for example, for those who have mental impairments”, the letter stated and that “The LIV is concerned that, under section 200A (3), an authorised officer may hold a reasonable belief that a person who is mentally impaired ‘is likely to refuse or fail to comply’ due to their incapacity.” 

It raised concerns about the powers of newly minted “authorised officers” who would be afforded “overly broad powers”. 

“The extended powers provide a wide scope for detention based upon the belief of the authorised officer. Under the new section 200A(1), a person who has been given a direction that the authorised officer considers to be ‘reasonably necessary to protect public health’; and the designated authorised officer reasonably believes that the person is a ‘high risk person’ who ‘is likely to refuse or fail to comply with the direction’ would be subject to detention.  

Moreover, the expansion of ‘authorised officer’ to include persons in which the Secretary by instrument may appoint where the Secretary considers it appropriate based on their skills, attributes, experience or otherwise or in a prescribed class of person; could extend the powers to public officers that are unable to adequately assess the likelihood of refusal or failure to comply with the directions.” 

Ms Hennessy said nothing to allay these concerns. 

In her response — available to read here — she said there is already power under the Act for “Authorised Officers to issue detention notices in certain circumstances. That power has been used to support mandatory quarantine powers, for example, for travellers returning from overseas. The amendments in the Bill will allow detention notices to be used in limited circumstances to  pre-emptively, address the public health risks posed by a defined category of ‘high risk’ individuals.” 

As the AG notes the power to detain people already exists, but to strip people of the civil rights by “pre-emptively” arresting and incarcerating someone without recourse to appeal or the courts is unprecedented and unnecessary. 

Yet the AG seems to blithely think stripping people of their civil rights is acceptable. 

And the vagueness as to what constitutes a “high risk” person is greatly concerning. 

The letter confirms the intention to permit pre-emptive detention based on a perception of risk. It is extraordinary. 

The reasons why a delegated officer may detain a person who they deem to be at “high risk” or who is “likely to refuse or fail to comply with the direction” would have to do with a legal construct regarding reasonable belief that a person is likely to not comply.   

The reason someone may not comply may be a medical reason, but it may be a political, lifestyle or other reason.  

The power to arrest and detain is triggered by a subjective belief on the part of the authorised officer who may well lack appropriate training – this is particularly critical when dealing with people with mental health issues as the LIV point out. 

While it must always be reasonable, we know that very learned people, say lawyers, for example, can differ wildly on what is reasonable to believe at any given time.  

That is why, in normal circumstances, we have judicial review, but under the Omnibus Bill if you are detained you are denied this basic tenet of the law, a cornerstone of civil rights.  

The LIV also raised the issue of where a person with a mental impairment or other health conditions may be detained.   

The AG asserts simply that they “may be detained in suitable locations” such as the persons, home or a hospital. 

This is just political and regulatory backfilling as the Omnibus Bill is absolutely mute on this as it is with every other aspect of how it would work. 

There is not one guarantee built into the Bill about its operation. 

Further Ms Hennessy in trying to allay concerns about detention states that “a number of important limits and safeguards will apply to the use of detention power” including that the CHO be notified in writing  “of a person’s detention  as soon as reasonably practical, and to review the person’s detention at least every 24 hours to consider whether detention remains reasonably necessary.” 

Evidence at the Coates Inquiry said that the Department of Health and Human Services that in doing that 24 review authorised officers simply determined whether a person had been in quarantine for 14 days or not and if they had been they could then be released this is despite there being a stepped process that had to be followed in doing such a review.   

The DHHS was advised of its legal obligations and it appeared to have ignored them.  

The authorised officer must engage in active intellectual process: This included a health analysis, questioning if the person still a risk and an analysis of all relevant data such as has the person had Covid-19 before and recovered etc. 

Ben Ihle, counsel assisting the Coates Inquiry, said that on the basis of  the evidence before the Board there is doubt as to whether  there was any active intellectual process applied to  consider whether the detention was reasonably necessary to  eliminate or reduce the serious risk to public health.  

Mr Ihle has raised the spectre that the Hotel Quarantine Scheme may have been unlawful and that the Victorian government could be open to lawsuits from detainees. 

He has told the Inquiry that “Ongoing lawful detention is probably dependent on those reviews being appropriately conducted.” 

He also stated the approach adopted strongly supports other evidence suggesting that the  focus adopted by the Department of Health and Human Services  was one of the enforcement and compliance, rather than one  of health and wellbeing.  

The Omnibus Bill is silent on this and further there is no mention whatsoever of the steps to be taken when reviewing someone detained pre-emptively who does not have Covid-19. Not one statement as to how that person’s case will be reviewed every 24 hours.  

This is the process that the AG says will be a safeguard.  Ms Hennessy’s letter is long on verbiage and short on specifics because the Bill offers no detail on how it would operate. 

Mr Ilhe has correctly summed up the government’s whole approach to this pandemic.  

It is a policing rather than a public health response which is characterised by curfews, coercive fines, 23 hour a day lockdowns, permits to travel and work, internal border checks, the forced shuttering of businesses and more.  

And now with its COVID-19 Omnibus (Emergency Measures) Bill it wants to further erode civil rights by introducing pre-emptive arrest and detention without any judicial oversight 

Do not be soothed by the AG’s words. Just read the Bill and weep for civil liberties lost if it were to pass into law. 

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