12 March 1991 - Current
PUBLIC HEALTH AND WELLBEING AMENDMENT (PANDEMIC MANAGEMENT) BILL 2021
02 December 2021
|ASSEMBLY||Council’s amendments||Tim Read|
Dr READ (Brunswick) (17:23): One morning early in March 2003 the head of the World Health Organization’s outbreak alert and response operations got a call from Singapore warning him that a doctor in Singapore had got on a plane flying to New York and had symptoms of an unusual kind of pneumonia. These symptoms resembled a sort of pneumonia that the WHO had described just three days earlier, and that was severe acute respiratory syndrome, which we now know as SARS. The doctor and his wife were taken off the plane in Frankfurt and isolated in hospital. That was really the first that we heard about SARS. SARS infected a total of nearly 8000 people and killed about 10 per cent of them—one in 10. It spread to multiple countries and proved very difficult to get rid of. It was a little less infectious than the coronavirus which causes COVID, but it is very closely related and many times more lethal. But they got rid of it without a vaccine and without any kind of medical treatment, purely using old-fashioned identification and isolation.
After the SARS outbreak was controlled, public health experts around the world reflected on it. It was lessons from the SARS outbreak, which in turn had been refined from epidemiological skills developed in managing Ebola in Africa and handling many other outbreaks, that really led to the Public Health and Wellbeing Act 2008, which we have been amending for the last couple of years, and in particular to the state-of-emergency provisions which are about to expire. These state-of-emergency provisions were clearly designed with SARS and with pandemic influenza in mind. Countries all around the world have these laws. Every state in Australia has these laws. But this week Victoria’s Parliament very nearly tore them up, and that would have been the third such occasion when we have come this close.
Back in September 2020 the state-of-emergency provisions were extended by just one vote in the upper house. Minister Mikakos had to ring up Dr Ratnam from the other place and get her to come in from her maternity leave to ensure that the state-of-emergency provisions were extended during the first really big wave of COVID in Melbourne, and this process was repeated in March this year. All the while there has been in Melbourne growing resentment of lockdowns, of border closures, of family separations and of restrictions on business, and so it is hardly surprising that people would be reluctant to extend these laws. We should not be surprised by that.
As early as June or July last year we started to see the development of a pro-freedom, anti-lockdown campaign, which particularly through August last year, as the state-of emergency provisions were about to run out, led to a huge email campaign swamping the inboxes of MPs, particularly I think upper house crossbenchers. A lot of this activism was coming from freedom advocates, perhaps small business people who had been affected, individuals who had been genuinely hurt by the lockdown provisions and also from wellness enthusiasts who are suspicious of modern medicine. After this was repeated in March with the second state-of-emergency extension, it was clear that the government felt that they would need to design more appropriate laws that were less of a blunt instrument than the state of emergency we are currently living under.
The state-of-emergency provisions were designed for infections that would travel far and fast and kill a lot of people, a bit like SARS, and enforcement of these provisions has proven to be at times heavy handed. Over the last 20 months or so many Victorians have racked up a lot of fines—in the tens of thousands I believe. Many of these remain unpaid, and too many of them are concentrated in too few low-income postcodes. Police have been prominent in enforcement. The fines themselves have been very high. And the member for Ripon correctly referred to the public housing tower lockdown, which was unfortunately handled and surely would have been handled differently had it been a high-income private apartment block.
Six or seven months ago I joined Dr Ratnam, Mr Meddick and Ms Patten from the upper house in discussions with the minister on the shape of the new bill. The government obviously wanted to avoid Victoria losing vital public health powers with repeated visits for extensions to the other place. And so with other crossbenchers, the Greens sought and obtained from the government in the process of the development of the legislation greater protections from excessive fines, greater transparency of health advice and, importantly, protection of QR code and contact-tracing interview data and an expert oversight committee.
I just want to refer particularly to the protections from excessive fines. It has always troubled me that rich people and poor people should pay the same-sized fine for the same offence—that the speeding ticket would be the same whether it is a Maserati or a clapped-out Corolla—and so it is very pleasing to see that in this bill people with a healthcare card or income support will be able to apply for a large reduction in the quantum of the penalty for their infringement. I think that is a really important precedent, and I hope it becomes a precedent for infringements in other areas. However, we did not achieve a parliamentary oversight committee. We were unable to have IBAC investigate complaints against police, nor did we achieve measures to reduce racial profiling by police.
The Greens understood how vital it was that governments should be able to respond urgently and flexibly to public health threats. We knew that the government needed these emergency powers, and we worked constructively to improve the legislation as much as we could without putting those powers at risk. After we saw the bill and it was second read and tabled and needlessly rushed through the lower house, further problems did become obvious and were identified by numerous legal and human rights commentators. So again the Greens, with Mr Meddick and Ms Patten, pushed for amendments. The fines were halved and the ambiguities around the Equal Opportunity Act 2010 protected attributes were clarified, and I would like to acknowledge and thank the Minister for Health and the Attorney-General, in addition to Mr Meddick and Ms Patten, for their work in this regard.
Here it is worth reflecting on some things we could have done better. For a start, someone should have thought about counting to 21 upper house members. Clearly the initial unamended bill missed many opportunities for oversight and had excessive penalties, and there were missed opportunities for consultation. But perhaps more importantly there was a failure on behalf of all of us to really explain that there is a tension between competing human rights: the right to life—the right to survival, the need to protect the population against a grave infectious threat—and the right to mix and move freely. And when we have competing human rights, some of them have to give. And with these emergency powers, whether in the form of the state of emergency powers in the act or the powers, which are much the same, that exist in this bill, you cannot have them all at once when you have a pandemic of this severity.
So the surprise appearance of Mr Somyurek necessitated the recruitment of Mr Barton to the cause, resulting in further improvements to the bill. And the bill is now vastly improved, partly by good politics and partly by accident. And now organisations like Liberty Victoria, the Victorian Equal Opportunity and Human Rights Commission and the Law Institute of Victoria all recognise that the bill is improved and worthy of support.
I want to point out that Victoria is very lucky not to have lost vital public health powers. Consider for a moment the impact of this pandemic on our ambulance and hospital systems. In New South Wales in September the average response time when calling an ambulance for an emergency, a lights-and-sirens case like a heart attack, was 59 minutes at times—59 minutes. Ambulances were being sent from as far away as 100 kilometres because the ambulance service could not cope with the rate of severe disease due to COVID in September. Here we got relatively close—not as bad as New South Wales, but at its peak we had 850 patients with COVID in Victorian hospitals. 850 patients with one infectious disease in the state’s hospitals is unprecedented. It put an enormous stress on our hospitals. Patients were being shunted from hospital to hospital to find room. As we know, elective surgery was cancelled, rooms were set up as makeshift ICUs, staff not normally working in intensive care were working in intensive care and the ambulance system was under stress here too, as we saw episodes of ramping outside major hospitals. But compare it for a minute to the United States. So far COVID has killed about 80 Australians per million population. In the United States it has killed 2365 Americans per million population, something like 30 times more when adjusted for population.
Meanwhile, while all this was going on, the opposition to lockdowns and so on crystallised into opposition to this bill. People had latched onto this bill, with all its many defects, and the numbers opposing the bill had grown. And no longer was it just wellness advocates and freedom activists; it was now an altogether more concerning mixture: a lot of people informed by conspiracy theories and completely misinformed about the contents of the bill and misinformed about vaccination.
A lot of this misinformation was funded by Clive Palmer. Some of this was stirred up by some very dangerous far-right activists, but a lot of the people, the people flooding our streets, were genuinely frightened. They were misinformed. They were well-meaning people, and they were genuinely frightened, genuinely upset. Unfortunately this was not something I think any of us truly foresaw, and it is very regrettable. It is something that we are going to have to do a lot of work on in terms of bringing these people back on board and regaining their trust in our health system and in our community.
But as a result of all of this, many upper house crossbenchers seemed willing to abandon public health. The Liberal Party, I note, are promising to repeal the bill and never introduce lockdowns. I hope that that does not become necessary. I do not think that they are the sort of people who would stare at a lifeboat and say that it is not perfect and therefore they are not going to jump into it.
I want to address one of the key remaining disagreements about this bill, and that is whether it should enable the upper house to disallow pandemic orders—pandemic orders being the new public health orders under this bill. In deciding whether the upper house of this Parliament, the Legislative Council, should have the power to disallow pandemic orders, we have to consider who makes up our upper house and why we got to within one vote of them leaving us without these laws.
The balance of power in the upper house is controlled by crossbenchers chosen by Glenn Druery, better known as the ‘preference whisperer’, and the deciding votes on whether we will have these laws is cast by crossbenchers elected by people who often thought they were voting for someone else. The group voting system gamed by Mr Druery funnels preferences to his paying clients until one of them accumulates enough votes to get elected. People voting for the Animal Justice Party unknowingly elected pro-gun Liberal Democrats who oppose this bill. I would be more inclined to empower the upper house to have the final say if I thought they properly represented the Victorian population they are supposed to protect—they do not. They represent Mr Druery, who I last heard was working for the Liberal Democrats and will presumably take their money again if they want to join his cartel and be reappointed at the next election.
Alternatively, Victoria’s Labor government could decide to get rid of the group voting system and ensure that Victorians know who they are electing. Otherwise we risk electing some of the bad actors who have misled and exploited too many people, even dangerous far-right groups or more anti-vaxxers. The ball is in the government’s court now. But for now we have a very good bill, and I am proud of all those in this Parliament and outside who have worked to improve it.