The letter, signed by 14 barristers, said the group was “deeply concerned” about new legislation which would give the Premier the ability to declare a pandemic and extend it in three-month blocks.
Their primary concern is that the bill will allow the government to “effectively rule the State of Victoria by decree for the foreseeable future without proper Parliamentary oversight or the usual checks and balances on executive power”.
“It is one thing to allow temporary rule by decree to deal with an unforeseen and extraordinary emergency in circumstances of extreme urgency,” the letter said.
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“It is something else altogether to entrench rule by decree as a long-term norm.
“In our view, this is antithetical to basic democratic principles and should not be allowed to happen.”
The powers, passed in the lower house on Thursday, will also give the Health Minister the jurisdiction to make “pandemic orders” as well as broad legislative power.
The threshold to make a pandemic order requires the minister believe the order is “reasonably necessary” to protect public health, which the barristers said was “practically impossible” to challenge in the courts.
“This effectively confers an unlimited and practically unreviewable power on the Minister to rule Victoria by decree on a long-term basis,” the letter said.
“This will make it practically impossible to challenge the merits of the order in a court. A person wishing to challenge the order on the merits will need to establish legal unreasonableness.
“This is a very high bar that might catch only the most extreme forms of overreach.”
Legislative powers were defined as “any order” with broad examples not designed to limit the minister’s scope.
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“The Minister is effectively given plenary legislative power,” the letter said.
The examples given in the Pandemic Management Bill 2021 include the detention of people, restricting movement and regulating public or private gatherings.
The Andrews Government has defended the bill arguing that necessary checks and balances to the powers exist including the establishment of the Independent Pandemic Management Advisory Committee.
A statement from the Premier said the legislation would “introduce greater transparency and accountability around decision-making”.
Any advice given by the independent committee to the minister will be tabled in parliament, but questions have been raised as to whether the new body would provide a reasonable block on unfettered power.
“The Bill’s Independent Pandemic Management Advisory Committee is not a significant check on the Minister’s power,” the letter said.
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“The Committee will be wholly appointed by the Minister him or herself (s 165CE) and will have no power to rescind or amend the Minister’s orders.”
“It is, in our view, no answer to these criticisms to say that the Bill contains more safeguards than presently exist for the emergency powers under the Public Health and Wellbeing Act 2008.”
The barrister said the powers and measures required to deal with the COVID-19 pandemic have been made clear after more than 18 months.
“There is no need to give the government of the day a blank cheque to rule by decree.”
The bill will now head to the Victorian upper house where it needs 21 votes to be passed.
The Andrews Government has 17 seats in the chamber and is believed to have the support of the Greens, the Animal Justice Party and the Reason Party – all of which have one seat each.

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