Innocent Victorians could be arrested in the street or at work and detained indefinitely by power-crazed officials under a new law Daniel Andrews wants to pass, top lawyers have warned.
The proposed new law, which will be debated in the Victorian parliament next month, would allow the government to give anyone it chooses – such as public servants – the power to enforce coronavirus restrictions and make arrests.
The unprecedented plan would also allow officials to detain people they suspect may spread coronavirus even if they have done nothing wrong.
Innocent Victorians could be arrested in the street or at work by power-crazed officials under a new law Daniel Andrews wants to pass, top lawyers have warned. Pictured: A lockdown protester being arrested on Sunday in Melbourne
The unprecedented plan would also allow officials to detain people they suspect may spread coronavirus even if they have done nothing wrong. Pictured: A lockdown protester being arrested on Saturday in Melbourne
Officials would also be able to follow up on tip-offs that Covid rules have been breached at a home or a workplace without needing the police to accompany them.
Eighteen former judges and lawyers have written an open letter warning that the law is ‘unprecedented, excessive and open to abuse’.
One of those lawyers, Ross Gillies QC, told Daily Mail Australia he fears power-hungry officials who enjoy exerting authority may abuse the powers given to them.
‘I don’t trust someone who is nominated by a public servant with the power to make arrests. I have real abiding concern that power is a very dangerous thing,’ he said.
‘Some people are excited by power and the ability to exert authority over someone else. There is the potential for enormous injustice.’
‘Someone might grab someone and say “I have reason to believe you are a Covid carrier or know someone who has Covid and I apprehend you”.
‘There would be no remedy in that situation. That may be the worst-case scenario but we know that can happen.’
Mr Gillies described the law, which has passed the lower house, as ‘draconian’ and urged the upper house to vote it down or amend it next month.
The proposed new law would allow the government to give anyone they chose the power to enforce coronavirus restrictions and make arrests. Pictured: Protesters on Sunday
In a press briefing on Wednesday, Mr Andrews (pictured) suggested the power to make arrests would be given to WorkSafe officials and health department workers
James Peters QC, who also signed the letter, expressed similar concerns.
‘Power is very intoxicating and only some people can exercise it carefully such as very well trained groups,’ he told Daily Mail Australia.
Asked if the new law could see innocent Victorians being arrested in the street, he said: ‘That’s right, that’s a very big risk.’
Mr Peters said normally when somebody is arrested they are brought before a bail justice but the proposed law does not say if that would happen.
Asked if it allows for indefinite detention, he said: ‘It could be read that way, yes.’
He also said it was unclear what redress people who are wrongfully arrested would have.
‘We have a traditional understanding of police power and redress to the courts if you have concern about how powers are exercised,’ he said.
‘But how are you able to effectively test the belief upon which you were restrained?
‘You might not find out about it [why you were arrested] until you get to court.’
He flagged that there could be a legal challenge if the law passes, saying: ‘When excessive powers are legislated, there is often a legal challenge.’
Asked if all 18 signatories to the letter would launch legal action together, he said: ‘I can’t speak for everyone I can only speak for myself.’
The proposed law does not specify who will be authorised to make arrests.
‘We just don’t know, that’s one of the vices. They could be anybody,’ said Mr Peters.
‘It’s not enough to say the problem can be managed without specifying who could be given the powers.’
Ross Gillies QC, told Daily Mail Australia he fears power-hungry officials who enjoy exerting authority may abuse the powers given to them. Pictured: Police on Sunday
A group of 18 retired judges and barristers have written a letter slamming the plan as ‘unprecedented, excessive and open to abuse’ and begged the Victorian parliament to vote it down. Pictured: Protesters in Melbourne on Sunday
In a press briefing on Wednesday, Mr Andrews suggested the power to make arrests would be given to WorkSafe officials and health department workers.
At the moment police need to be present to make an arrest but Mr Andrews wants public servants to have that power on their own.
He said when a workplace is inspected to see if it is abiding by Covid-19 rules ‘there’s got to be someone from police, someone from WorkSafe, somebody from the Health Department, that doesn’t make any sense.
‘If we can essentially double or triple the resource available to you, it stands to reason that we’ll have more people doing the right thing. ‘
Mr Andrews said he wants to make sure supermarkets, abattoirs and other workplaces are adhering to strict rules including social distancing and limits on the number of workers on the premises at once.
Asked why he needs to give powers to detain people before they do anything wrong, he said: ‘They’re based on a reasonable belief principle and proportionality principle about the risk of spreading Covid.
What would the new law do?
Allow any person the government considered appropriate to be authorised to exercise emergency powers including make arrests.
There would be no requirement for them to be police officers, or even public servants.
Allow an authorised officer to detain any person they believe is likely to fail to comply with an emergency direction and is a close contact or a Covid-19 patient not given clearance from self-isolation.
The suspect can be detained for so long as the authorised officer reasonably believes the person in detention is likely to fail to comply with an emergency direction.
Read the bill here
‘There are some people who are not compliant, refuse to act in a responsible and safe way. Those powers would not be frequently used. They would be, I think, rare. But they are important.’
Those who could be arrested include positive patients or close contacts who officials suspect may refuse to self-isolate, such as protesters or people with mental health difficulties.
They could be taken to a hotel for mandatory quarantine for as long as the authorised officer believes is necessary.
Critics say Mr Andrews wants to create his own version of the Stasi, the East German secret police force which spied on citizens through a network of informants and arrested more than 250,000 people between 1950 and 1990.
The measures are outlined in the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020, which has passed the lower house and will be debated in the upper house next month.
Liberty Victoria president Julian Burnside has raised concerns that government workers authorised to make arrests may not be able to accurately determine whether someone poses a risk of spreading Covid-19.
‘The bill introduces a preventative detention regime which appears to have little protections or oversight, and provides far too much discretion to people who may lack the necessary expertise to determine risk, including police officers,’ he said.
Victoria’s state of emergency and disaster powers, extended until October 11, give police the power to detain someone ‘for the period reasonably necessary to eliminate or reduce a serious risk to public health’.
Police officers can also search people’s homes without a warrant and restrict movement between locations such as between regional Victoria and Melbourne.
In their letter the group of retired judges and prominent QCs said they were ‘deeply concerned’ about how the bill would expand the power of the state.
They said the bill would allow anyone to be authorised to exercise emergency powers.
‘There would be no requirement that persons authorised be police officers, or even public servants,’ the letter read.
Allowing citizens to make arrests ‘on the basis of a belief that the detained person is unlikely to comply with emergency directions’ is ‘unprecedented, excessive and open to abuse,’ the lawyers said.
Gideon Rozner, Director of Policy at free market think tank the Institute of Public Affairs told Daily Mail Australia the legislation was ‘extremely dangerous’ and would create the ‘Daniel Andrews Stasi’.
Victoria’s state of emergency and disaster powers already give police the power to detain someone ‘for the period reasonably necessary to eliminate or reduce a serious risk to public health’. Pictured: Police at a protest in Melbourne on Sunday
Critics say Mr Andrews wants to create his own version of the Stasi, the secret police force tasked with stopping East Germans from jumping the Berlin Wall (pictured) and escaping communism
‘It will allow Dan Andrews to effectively appoint anyone he wants as an authorised officer, with extraordinarily broad discretion to enforce Victoria’s emergency powers,’ he said.
‘Union leaders could be appointed to unleash retribution on small business owners who speak out against lockdowns.
‘Labor Party officials could be appointed to intimidate political opponents. ‘I Stand With Dan’ types could be appointed to spy on their friends and neighbours.
‘Not since East Germany have we seen such a monstrous web of government surveillance. The Victorian Parliament must vote down this bill and say no to the Dan Andrews Stasi.’
Mr Andrews said he did not agree the proposed legislation was excessive or open to abuse.
‘In terms of recruitment, process, oversight – all that can be managed,’ Mr Andrews said on Tuesday in response to the lawyers’ letter.
‘In terms of the first point, though, the notion it is unprecedented, yes, it is. Because we’re in a one-in-100-year event. This is not in any way business as usual.’
Mr Andrews justified the new law by saying it would help keep case numbers low, even though no other state in Australia has required such a drastic measure.
‘We jealously guard the low (case) numbers that we are in the process of delivering, then you need to have a bigger enforcement team,’ he said.
‘They will play many different roles, but I think we have struck the right balance there.’
Victoria’s Attorney-General Jill Hennessy said the laws would ‘allow us to continue responding to the challenges the pandemic presents, so we can keep protecting Victorians and delivering the services they rely on.’
The labor government has a majority in the lower house but needs the support of the cross bench to get the bill through the upper house.
Reason Party leader Fiona Patten and the Greens have expressed concerns and said they will try to amend the bill.
Ms Patten told The Australian: ‘Extending the powers of authorised officers to detain people with no court oversight is extreme, and it’s unclear why the government thinks they need these powers now.
‘The coronavirus case numbers are going down, things are working, and I think most importantly this is a health pandemic and it should be treated as a health issue, not a law-and-order one.
‘The authorised officers that we have now undertake significant training, they’re health experts, and there appears to be no evidence that they need greater powers.’
‘Excessive and open to abuse’: The lawyers’ letter in full
Georgina Schoff QC (pictured) signed the letter with 17 other lawyers
‘We are deeply concerned by the passage of the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 (Bill) through the Legislative Assembly.
Emergency powers already allow authorised officers under the Public Health and Wellbeing Act 2008 (Vic) to detain people and to restrict movement.
The Bill would expand the emergency powers to allow an authorised officer to detain:
• any person that the authorised officer reasonably believes is likely to fail to comply with an emergency direction and is a close contact of a person diagnosed with COVID-19 (or a person diagnosed with COVID-19) not given clearance from self-isolation;
• for so long as the authorised officer reasonably believes the person in detention is likely to fail to comply with an emergency direction.
The Bill would also allow any person the Secretary considered appropriate to be authorised to exercise emergency powers. There would be no requirement that persons authorised be police officers, or even public servants.
Authorising citizens to detain their fellow citizens on the basis of a belief that the detained person is unlikely to comply with emergency directions by the ‘authorised’ citizens is unprecedented, excessive and open to abuse.
We call on the Legislative Council to amend the Bill, or to vote against it.
MICHAEL MCHUGH AC QC
PETER HEEREY AM QC
NEIL YOUNG QC
ROSS GILLIES, QC
JENNIFER BATROUNEY, QC
JAMES PETERS AM QC
PETER COLLINSON QC
MARYANNE LOUGHNAN QC
RACHEL DOYLE, QC
MARY ANNE HARTLEY QC
PHILIP CRUTCHFIELD QC
GEORGINA SCHOFF QC
PHILIP SOLOMON QC
DAVID BATT QC
STUART WOOD AM QC
FELICITY GERRY QC
PAUL HAYES, QC
MICHAEL BORSKY QC
The Victorian Bar on Wednesday released a statement urging major changes to the bill, including requiring the Chief Health Officer to review all detentions.
‘The Victorian Bar’s concerns about provisions of the Omnibus Bill, tabled in Parliament on 17 September 2020, refer principally to the broad and generic criteria on which ‘authorised officer’ appointments may be made under s. 30 of the Act,’ the group said in a statement.
‘The proposed criteria potentially open the door for those who are not trained as health professionals to be appointed as ‘authorised officers’.
‘This is of significant concern as it is imperative that the qualifications of these officers are relevant to the public health functions that they are intended to perform.
‘The Victorian Bar is also concerned with the proposal that people may be detained by authorised officers for failure to abide by a public health direction on the basis of an authorised officer’s ‘reasonable belief’.
‘This standard of validation is broad and subjective. The power to detain should be reviewed against an objective standard, for example, one of ‘reasonable likelihood’.
‘Furthermore, the public interest would best be served if decisions made by authorised officers were reviewed by the Chief Health Officer (or senior delegate) within a short, stipulated period (preferably not longer than 24 hours).
‘In the Bar’s view, the power of detention should be expressly based on a test of the least restrictive means reasonably available in the circumstances to achieve public health and safety.’