The COVID Law Monitor project covers changes in legislation, directives and emergencies powers that affect civil liberties and freedoms of people in Australia across all jurisdictions. There have been significant changes in legislation and policy in other areas such as social security, taxation and economic management and industry, and while important, these changes fall out of scope of this project.


New and Amended Victorian Laws 

 

Last update: 26 May 2020

Contents

1. Public Health and Wellbeing Act 2008 (Vic)

1.1 Background

1.2 Emergency powers under the Public Health and Wellbeing Act 2008 (Vic)

1.3 Directions under the Public Health and Wellbeing Act 2008 (Vic)

1.4 Freedom of Assembly and the Ten Person Rule

1.5 Penalties

2. COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic)

2.1 Background

2.2 Key changes under the Act

2.3 Changes to the operation of the justice system

2.4 Extended powers of the Attorney-General

 

1. Public Health and Wellbeing Act 2008 (Vic)

1.1 Background

The Public Health and Wellbeing Act 2008 (Vic) aims to achieve the highest attainable standard of public health and wellbeing for Victorians.  This includes:

- protecting public health and preventing disease, illness, injury, disability or premature death;

- promoting conditions which a person can live a healthy life; and

- reducing health inequalities. 

Once a state of emergency is declared under section 198(1) of the Public Health and Wellbeing Act 2008 (Vic), the Chief Health Officer is empowered to grant an authorisation to authorised officers to exercise the emergency powers listed in section 200 of the Act, which includes the power to make Directions. 

Note that authorised officers are also authorised to exercise the public health risk powers in section 190 of the Act. 

1.2 Emergency Powers under the Public Health and Wellbeing Act 2008 (Vic)

Under the Public Health and Wellbeing Act 2008 (Vic), once a state of emergency has been declared, the authorised officers have the following emergency powers:

- to detain any person for the period reasonably necessary to eliminate a serious risk to public health;

- to restrict the movement of any person;

- to prevent any person from entering Victoria; and

- to give any other Direction reasonably necessary to protect public health.

The authorised officer must also warn the relevant person that a refusal or failure to comply with their exercise of an emergency power is an offence, unless it is not reasonably practicable to do so. 

If a person is detained, the officer must:

- briefly explain the reason why a person is required to be detained, unless it is not practicable to do so (in which case it must be explained as soon as possible);

- facilitate any reasonable request for communication made by the detained person;

- review at least once every 24 hours whether the continued detention of the person is reasonably necessary to eliminate or reduce a serious risk to public health; and

- give written notice to the Chief Health Officer that a person is being detained as soon as is reasonably practicable.

1.3 Directions under the Public Health and Wellbeing Act 2008 (Vic)

The following Directions are currently in force:

Stay at Home Directions (No. 7):These directions replace the Stay at Home Directions (No 6). It directs that a person must not leave their ordinary place of residence other than for a specified reason (being to obtain necessary goods or services, for work and education, exercise, recreation, for care or other compassionate reasons, for visiting family or friends or for other specified reasons).  If a person has more than one ordinary place of premises, a person can travel between these residences.  These directions  permit a group of up to 5 people to visit another person's home;  permit a group of 10 people to gather in a public space; allow people to leave their homes for wellbeing purposes including recreation and exercise; and increase the number of people that can attend a funeral (30 if outdoor and 20 if indoor) or wedding (10 guests). The Direction also allows parents and guardians to leave home to take their child to school or an educational facility.

Restricted Activity Directions (No 7): which directs that certain premises (such as gambling facilities, pubs, cafes, cinemas and places of worship) must not operate subject to certain exceptions, and directs that where premises operate according to the exceptions the density limit of 1 person per 4 square metres must not be exceeded. These directions  permit 10 members of the public to gather for religious purposes; require various operators to keep a record of people who attend certain facilities to support contact tracing; permit 10 members of the public to attend auction houses, real estate auctions and residential property inspections; permit 10 members of the public to attend support groups;  permit limited outdoor sport to occur; and permit professional sporting organisations to train and engage in professional sporting events at certain facilities.

Diagnosed Persons and Close Contacts Directions: These directions replace the Isolation (Diagnosis) Direction (No 2) made on 13 April 2020. These directions require persons diagnosed with COVID-19 to self-isolate until given clearance by an officer of the Department of Health and Human Services; and persons who are living or have been in close contact with a diagnosed person to self-quarantine.

Hospital Visitors Directions (No 3): These directions replace the Hospital Visitors Directions (No 2) made on 13 April 2020. These directions maintain the restrictions on persons that can enter a hospital (patients, workers and care and support visitors). Care and support visits are defined as visits of no longer than 2 hours made to patient by a maximum of two persons for the purposes of providing care and support to the patient.  Persons permitted under the Direction must not enter a hospital in certain circumstances, such as if they have been diagnosed with COVID-19 or are within the 14 day quarantine period.

Directions - Care facilities (No 3): These directions reinstate the provisions of the Care Facilities Directions (No 2) which expired on 11 May 2020. It continues restrictions to care facilities, including residential aged care facilities, alcohol and drug rehabilitation facilities, disability residential care and homelessness residential facilities.It directs that a person cannot enter a residential aged care facility, except for specified persons such as employees or contractors.  Additionally, those specified persons (such as employees and contractors) are directed to not enter a residential aged care facility in certain circumstances, such as if they have been exposed to COVID-19, are within the 14 day quarantine period, or if the person has a temperature of higher than 37.5 degrees celsius. This Direction expires on 31 May 2020. 

Direction and Detention notice (No 3): these directions reinstate the provisions of the Direction and Detention Notice (No 2) which expired on 11 May 2020. It directs that a person who has arrived in Victoria from overseas is to be detained in a hotel for a period of 14 days.  14 days is considered to be the time that is reasonably necessary for the purposes of eliminating or reducing a serious risk to public health, in accordance with section 200(1)(a) of the Public Health and Wellbeing Act 2008 (Vic).  A person who arrives in Victoria must immediately proceed to a vehicle that has been provided to take them to a specified hotel.  Once there, they must proceed immediately to their assigned room.  No individual must leave their room unless they have been granted permission to do so (such as for the purpose of attending a medical facility, where it is reasonably necessary for their health, or if there is an emergency situation). 

Each Direction expires at the time specified in the Direction, unless extended. 

1.4  Freedom of Assembly and the Ten person rule 

1.4.1 Background

The ‘ten person’ rule is implemented in Victoria via the ‘Stay at Home Directions’ made under sections 190(1)(a) and (g) and 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic).

Under Stay at Home Directions (No. 7) persons must not leave their ordinary place of residence other than for a specified reason.  

These directions  permit a group of up to 5 people to visit another person's home; permit a group of 10 people to gather in a public space; allow people to leave their homes for wellbeing purposes including recreation and exercise; and increase the number of people that can attend a funeral (30 if outdoor and 20 if indoor) or wedding (10 guests).

The stay at home period under these Directions is due to end on 31 May 2020. 

1.4.2 Exceptions

A person can leave their ordinary place of residence:

- to attend a wedding or funeral that complies with the requirements of the Direction (such as the requirement that the space have at least 4 square metres of space per person present);

- for one of the exceptions to the Stay at Home direction, being to obtain necessary goods or services, for work or education, for care and other compassionate reasons, for exercise or recreation, for visiting family or friends or for other specified reasons (such as in an emergency, or in order to move to a new premises, or moving between two or more of their ordinary residences).

1.5 Penalties

Under section 203 of the Public Health and Wellbeing Act 2008 (Vic), the penalty for failing to comply with a Direction or exercise of an emergency power by an authorised officer without a reasonable excuse is:

- $19,826.40 for an individual; and

- $99,132 for a corporation. 

Further, Victoria Police have also received powers to issue on the spot fines amounting to $1,652 for individuals and $9,913 for businesses that fail to comply with Directions made by the Chief Health Officer. 

2. COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic)

2.1 Background

The COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) (Omnibus Act) introduced temporary changes to a number of existing laws to ensure that Victoria’s planning and justice systems can continue to operate during the COVID-19 pandemic.

2.2 Key changes under the Act

Key changes that were introduced are:

- support for residential tenants and landlords (such as amendments to the Residential Tenancies Act 1997 (Vic) and the Residential Tenancies Amendment Act 2018 (Vic)).  Some of these amendments include, but are not limited to:

- suspension of rent increases in tenancy arrangements;

- on application to VCAT, a tenant can apply for a reduction in rent, or enter into a payment plan to pay rent (including at a reduced amount); and

- a landlord or tenant is taken to not have breached a term or duty if there was a COVID-19 reason, as specified in the newly inserted section 537 of the Residential Tenancies Act; and

- support for commercial tenants and landlords (such as prohibiting the termination of an eligible lease, extending the period an eligible lease is in effect and imposing additional obligations on both parties to an eligible lease, including requiring them to negotiate amendments to an eligible lease).

2.3 Changes to the operation of the justice system

Changes have been made to the operation of the justice system in order to respond to the Coronavirus pandemic.  These amendments include:

- evidence and procedure (such as allowing courts to hear a greater number of matters by audio visual link, allowing courts to deal with matters without a hearing and creating more flexibility in bail matters);

- regulation-making powers which will allow for the Governor in Council, on the recommendation of the Attorney-General, to implement emergency regulations in justice system matters;

- changes to the Supreme Court and County Court, allowing the courts to decide any issue in any proceeding, or determine any proceeding, entirely on the written submissions and without the appearance of the parties.  This does not apply to criminal proceedings or issues in a criminal proceeding, and any other prescribed issue or proceeding;

- courts may now make a modified access and procedure order (MAP Order) that:

- requires that the proceeding or hearing must be held;

- with or without the appearance of the parties;

- by audio visual link or audio link;

- permits a specified person, or a person of a specified class, to be present (whether in person, or by audio visual link or audio link) for the whole or part of the proceeding or hearing;

- prohibits a specified person, or a person of a specified class, from being present (whether in person, or by audio visual link or audio link) for the whole or part of the proceeding or hearing;

- confers on the presiding judicial officer or member discretion regarding the matters described in paragraph (a), (b) or (c); or

- specifies the conditions applying to a discretion described in paragraph (d) (including by specifying the circumstances in which the discretion may be exercised);

- changes to court procedures for the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, allowing the question of a person's fitness to stand trial (or an appeal on that question) to be determined on the balance of probabilities by the court.  Separately, the Court may also order a special hearing by judge alone where the offence is a Victorian offence and the court considers that it is in the interests of justice to do so.  This may be ordered on the court’s own motion or on application by the prosecution or an accused.  All findings available to a jury are available to the judge, and the judgment must include the principles of law applied by the judge, and the facts on which they relied.

2.4 Extended powers of the Attorney-General

The Omnibus Act furthers the Attorney-General’s powers during the crisis, such as allowing the Governor in Council, on the recommendation of the Attorney-General, to make regulations that modify the application of a Justice Act (which is any legislation administered by the Attorney-General or the Ministers for Corrections, Police and Emergency Services, Victim Support or Youth Justice), that concerns any matter related to:

- arrangements for or with respect to any proceeding in a court or tribunal, including a pre-trial proceeding;

- the conduct of a proceeding in a court or tribunal;

- arrangements for or with respect to any proceeding, inquiry or investigation being conducted or carried out by an integrity entity;

- the process applying to applications for bail;

- the method or processes by which conditions of bail are monitored or enforced;

- the process by which orders, judgments, rulings, reasons, determinations, decisions or findings of a court or tribunal are issued (including their certification and transmission); and

- others. 

The regulations may be as general or limited as necessary, and will override any other Act, regulation or other law to the contrary (except for the Constitution and Charter of Human Rights and Responsibilities).

The Attorney-General may only recommend that regulations be made if they are of the opinion that it is consistent with the health advice/directions, and is reasonable:

- to protect the health, safety or welfare of persons in relation to the administration of justice or law;

- for the effective or efficient administration of justice or law; or

- in relation to the conduct or carrying out of a proceeding, inquiry or investigation by an integrity entity. 

The Attorney-General must only make a recommendation that relates to the conduct of proceedings in a court or tribunal with the consent of the relevant head of jurisdiction, and the consent of integrity entities and heads in relation to regulations that relate to them.

 


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