After calling for the release of the amendments to COVID-19 Omnibus (Emergency Measures) Bill the Spectator Australia has now received them and, after analysis, can claim a capital “V” for Victory.
The amendments have effectively hollowed out the Bill, stripping away the most pernicious aspects of it, in particular clause 252.
This clause was the most egregious attack on civil rights and liberties in the Bill, the ability by a designated authorised officer to arrest and detain a person indefinitely without recourse to the courts and other civil protections has been dropped entirely.
This is a major win.
Under the original Bill a “designated authorised officer (could detain a person if they) reasonably believe that the person is a high risk person who is likely to refuse or fail to comply with the direction.”
This meant people could be arrested and detained even if they had not committed any offence.
Into its maw could have been swept up those most vulnerable such as the mentally ill, people with severe drug and alcohol issues as well as the general citizenry, as the clause was so sweeping and lacking in specificity that anybody could be defined as high risk.
All civil rights and liberties would have been swept away. There would have been no review of the detention but for the Supreme Court’s ability to grant an order in the nature of habeas corpus — and even that could only be achieved if a detained person had access to the law which, under these provisions, could have been almost impossible.
Common sense has now prevailed with this section deleted.
Further, the Bill now specifies just who can be made an “authorised officer” and has stripped the ability of the Secretary of the Department of Health and Human Services to appoint anyone as an authorised officer.
In the original Bill the Secretary under had the ability to appoint a “person the Secretary considers appropriate for appointment based on the person’s skills, attributes, experience or otherwise”.
The “or otherwise” provision, which would have allowed for example local by-laws officers, members of the ADF or anyone else to be made authorised officers, has been cut from the Bill.
These newly minted and untrained “authorised officers” would have had the power to arrest or detain people or give directions “that the authorised officer considers is reasonably necessary to protect public health.”
According to the amendments only now only “a police officer; a protective service officer; a Worksafe inspector; an employee in the public sector of the State other than Victoria, or a territory; a health service provider” can be appointed by the Secretary.
And there have been limitations put on the powers that may be conferred on these “authorised officers.”
The amendments state that the:
Chief Health Officer must not authorise an authorised officer who is appointed under the temporary provisions (of the Bill) to exercise any of the emergency powers
The emergency powers include powers to detain persons or groups of persons.
This is a significant win for civil rights and liberties.
In effect, this means that only existing powers under the state of emergency can be exercised by “authorised officers” even though these powers are extraordinary in themselves.
These are major changes that rightly hollow out the Bill as it relates to the Health and Well Being Act 2008.
They will help protect the rights and liberties of citizens, and the Legislative Council crossbench members, the legal community, civil rights organisations and the vociferous public that urged them are to be congratulated in forcing these changes.
The reality is that this section of the Bill should never have been put forward and, in fact, should still be excised in their entirety from the Omnibus Bill.
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