In 1933, Hitler’s goons set fire to the Reichstag so they could railroad President Paul von Hindenburg into approving the Enabling Act that gave the Nazis full control over the once democratically elected parliament.
Fast forward 88 years and Dictator Dan Andrews looks like he’s living up to the dictum – “You never want a serious crisis to go to waste”.
However, this time, the power-grab has been strategically named “The Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021”. And although it may sound innocent, it’s quite the opposite.
In effect, the bill gives Daniel Andrews the dictatorial power to:
- Impose indefinite lockdowns, even if there were no cases of the virus in the country (new sections 165AE & 165AI)
- Imprison people without trial (new section 165BA(1)(b)
- Arrest people because of their religion, political beliefs, or ethnic background (new section 165AK(4)).
All these powers would be exercised without the control or scrutiny of parliament or the courts (new sections 165AG(6), 165AQ(2), 165AT(3) & 165BI).
According to analysis by the Institute of Public Affairs, the proposed legislation would violate fundamental democratic principles in the following six ways:
The law would give the Premier and the Health Minister the power to rule by decree indefinitely.
- New sections 165AB and 165AE empower the Premier to make a pandemic declaration where he or she is “satisfied that there is a serious risk to public health”. In other words, the Premier has total discretion to make and extend a pandemic declaration regardless of whether or not a case of the disease is present in the country.
- The only limitation on the health minister to issue pandemic orders is that the minister must “believe” that the order is “reasonably necessary to protect public health”.
- A pandemic order may include, “but is not limited to”, an order to detain a person; restrict movement of people; prevent entry or exit to pandemic management area; regulate gatherings and carrying on of activities; mandate the use of protective equipment such as face masks; and require a person to provide information, produce documents or keep records.
The Bill allows the health minister to use draconian powers against people based on their religion, political beliefs, or ethnic background.
- In exercising the powers under a pandemic declaration, the minister is expressly permitted to “differentiate between or vary in its application to persons or classes of persons identified by reference to an attribute within the meaning of the Equal Opportunity Act 2010”.
- According to Section 6 of the Equal Opportunity Act 2010, the Premier can discriminate based on age, disability, employment activity, marital status, political belief or activity, sexual orientation etc. In other words, the Premier and his minister can target people based on their political beliefs and activities.
The Bill grants sweeping powers to authorised officers and abrogates the privilege against self-incrimination.
- Unelected authorised officers appointed by the unelected Chief Health Officer would be granted sweeping powers to exercise broad and nearly limitless “pandemic management general powers”.
- The authorised officers would be allowed to take any action or give any direction, other than to detain a person, that the authorised officer believes is reasonably necessary to protect public health. They can also detain a person in a pandemic management area for the period the authorised officer believes is reasonably necessary to eliminate or reduce a serious risk to public health.
- In addition to the pandemic management general powers, new section 212A gives authorised officers the ability to demand a person produce information or answer a question that may override rights to silence.
The Bill grants authorised officers the power to detain people without trial indefinitely, which abrogates the ancient right of habeas corpus.
- A decision by an authorised officer to detain a person under the powers of the Bill would not be reviewable in a court, but only by a Detention Review Officer appointed by the health department.
- More specifically, the authorised officer is required to review their own decision to detain the person (new section 165BG(2)), while a detained person may make an application to the Secretary of the Department of Health for a review by a “Detention Review Officer” appointed by the Department of Health.
The Bill allows the health minister and authorised officers to exercise draconian powers, which will not be able to be challenged in court.
- Given the health minister and authorised officer would have the power to make “any order” and “take any action or give any direction” during a declared pandemic if they “believe” it to be “reasonably necessary” – their orders and actions taken, are in effect, unreviewable.
- A person raising a challenge to the merits of a pandemic order or an authorised officer’s direction would need to establish legal unreasonableness: a nearly unreachable standard to meet that may catch only the most extreme forms of overreach, although even this cannot be confidently predicted.
The Bill allows the government to exercise draconian powers without the scrutiny of parliament.
- The vast powers vested in the Premier, the Health Minister, and unelected authorised officers would be exercised without any approval or scrutiny from the parliament.
- The parliament can only disallow pandemic orders upon the recommendation of the Scrutiny of Acts and Regulations Committee (“the SAR Committee”), whose membership is generally dominated by members from the same political party as the health minister.
In other words, Daniel Andrews will have the power to upend democracy at the flick of a pen if the bill is passed, all while the mainstream media mischaracterises the tens of thousands of protestors who stood up to his tyranny over the weekend as unhinged anti-vaxxers.
It certainly is a Brave New World…
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