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: 17 November 2020

Contents

1. Emergency Management Act 1986 (Vic)

2. Public Health and Wellbeing Act 2008 (Vic)

2.1 Background

2.1.1 Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Act 2020 (Vic).

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

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

2.4 Penalties

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

3.1 Background

3.2 Key changes under the Act

3.3 Changes to the operation of the justice system

3.4 Extended powers of the Attorney-General

 

1. Emergency Management Act 1986 (Vic)

On 2 August 2020, Victorian Premier Daniel Andrews declared a state of disaster in relation to the whole of Victoria under section 23(1) of the Emergency Management Act 1986 (Vic). In making the declaration, the Premier stated that he was satisfied that the COVID-19 pandemic constitutes, or is likely to constitute a significant and widespread danger to life or property in Victoria. The original declaration was in force from 6pm on 2 August - 6pm on 2 September.

The Declaration of a State of Disaster has been extended multiple times, and is now in force until 6 December 2020, unless revoked earlier. 

2. Public Health and Wellbeing Act 2008 (Vic)

2.1 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. 

2.1.1 Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Act 2020 (Vic). 

On 9 September 2020, the Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Act 2020 came into force, altering the Public Health and Wellbeing Act 2008 (Vic). 

Significantly, it lengthens the amount of time that a state of emergency can be declared in relation to COVID-19. Previously, a state of emergency could only be declared for 6 months – this has now been lengthened to 12 months.

The state of emergency has been extended numerous times, and is now in force until 8 November 2020

The Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Act 2020 also clarifies the powers of the Chief Health Officer, and the definition of a ‘serious risk to public health’. The amendments also enhance reporting requirements when a state of emergency in relation to COVID-19 is extended beyond 6 months.

2.2 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.

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

Under Third Step restrictions in Victoria, from 11:59pm on 8 November 2020:

  • You can travel between regional Victoria and metropolitan Melbourne. There are no limits on how far you can travel or the reasons you can travel. You do not need a permit to travel. The 25km limit on how far you can travel no longer applies.
  • You can go on holiday in Victoria and book accommodation. You can go camping. You can book accommodation to share with the people you live with, your intimate partner, and up to two other people and their dependents.
  • Face masks must be worn when you leave home.
  • You can have up to two people visit you at home each day. Infants under 12 months are not included in this cap, and other dependents can also attend if they cannot be left unattended or cared for in another setting. The two people may be from different households and may visit separately. Your intimate partner is not included in the cap.
  • Outdoor gatherings in a public place are limited to up to 10 people, infants under 12 months not included in the cap. A public place means an area that everyone can access, for example a local park or the beach.
  • Cafes, pubs, bars and restaurants can serve up to 70 people outdoors and up to 40 people indoors. Smaller venues can seat a smaller number of customers in line with density limits and spacing requirements. Patrons must sign-in.
  • Indoor exercise, including gyms, are open with limits on the number of people in spaces. Exercise and classes can resume with up to 10 people per indoor space and a limit of 20 people per facility. Equipment must be cleaned between uses. You must wear a face mask unless you are out of breath. Exercise must be non-contact. Temporary structures can be set up to divide spaces, subject to the overall indoor cap of 20 and a density limit of 1 person per 8m2.
  • Indoor non-contact sport can also resume for those aged 18 years and under. Up to 20 people can participate in the indoor exercise (like a dance class, indoor community sport is limited to the minimum number of people required to play the sport, up 20 people). There are limits on spectators to one parent, guardian, or carer where the child requires supervision. Non-contact means that the activity can be done within a distance of 1.5 metres.
  • Indoor pools can open for all ages, for up to 20 people or the density limit (1 person per 4m2) – whichever is lower.
  • Outdoor religious gatherings can be held near a place of worship with up to 50 people plus a faith leader. While attending a religious gathering there are steps you need to take to keep yourself and others safe including not sharing food, drink or items. You must also wear a mask, unless you have exemption.
  • Indoor religious gatherings can be held with up to 10 people per group (plus a faith leader), and 20 people per facility. While attending a religious gathering there are steps you need to take to keep yourself and others safe, including not sharing food, drink or items. You must also wear a mask, unless you have an exemption. There will be restrictions in place that includes limiting the service length to a maximum of 90 minutes and maintaining at least 5 metres between each group of 10.
  • Funerals will be allowed with up to 50 people if held outdoors and up to 20 people if held indoors. This limit doesn’t include infants under 12 months of age, or the people required to conduct the funeral.
  • Community venues, including libraries and neighbourhood houses, are open for up to 20 people indoors with a maximum of 10 people per space, subject to density limits.
  • Real estate inspections and auctions can be held with up to 10 people from different households, plus the owners/residents of the property and the real estate agent.
  • Indoor entertainment venues, including cinemas and theatres, can open with up to 20 people per space, subject to density limits. There can be up to 20 people in each space (for example, a screening room or gallery space) and staggered performance times to avoid crowds in foyers and bathrooms. Smaller venues can seat a smaller number of customers.
  • Electronic gaming may open in venues. Patrons playing electronic games are included in the 40 person indoor patron cap for a venue. Venues can have up to 10 patrons (equivalent to 25% of the indoor patron cap) in electronic gaming rooms, subject to density limits, maintaining at least 1.5 metres between players, and with every second machine turned off.

The following Directions are currently in force:

Care Facilities Directions (No.16)This direction replaces the Care facilities direction, previously the Aged Care facilities direction, which restricted entry to all aged care facilities. It continues restrictions to care facilities, including alcohol and drug rehabilitation facilities, disability residential care and homelessness residential facilities. The Care Facilities Directions (No 16) come into force at 11:59pm on 8 November 2020 and replace the Care Facilities Directions (No 15).

Diagnosed Persons and Close Contact Directions (No.13)These directions replace the Isolation (Diagnosis) directions and require persons diagnosed with coronavirus to self-isolate and persons who are living with a diagnosed person, or who have been in close contact with a diagnosed person, to self-quarantine.The Diagnosed Persons and Close Contacts Directions (No 13) come into force at 11:59pm on 8 November 2020 and replace the Diagnosed Persons and Close Contacts Directions (No 12).

Hospital Visitors Directions (No.14)These directions restrict entry into hospitals to minimise the risk of spreading coronavirus among hospital patients and staff. Paid workers and volunteers can enter as usual, but there are restrictions on the age and number of visitors for patients, and limits on the duration of visits. The Hospital Visitor Directions (No 14) come into force at 11:59pm on 8 November 2020 and replace the Hospital Visitor Directions (No 13).

Metro-Regional Work Travel Permit Scheme Directions: These directions establish the Metro-Regional Work Travel Permit Scheme Directions. he Metro-Regional Work Travel Permit Scheme Directions are revoked with effect from 11:59:00pm on 8 November 2020.

Restricted Activities Directions (Victoria): The purpose of these directions is to restrict the operation of certain businesses and undertakings in the Restricted Areas in order to limit the spread of coronavirus (COVID-19).The Restricted Activity Directions (Victoria) come into force at 11.59pm 8 November 2020 and replace the  the Restricted Activity Directions (Non-Melbourne) (No 11) and the Restricted Activity Directions (Melbourne) to unify the restrictions on activities across the State of Victoria.

Stay Safe Directions (Victoria): The purpose of these directions is to address the serious public health risk posed to Victoria by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).The Stay Stay Safe Directions (Victoria) come into force at 11.59pm on 8 November 2020 and replace the Stay Safe Directions (Melbourne) (No 2) and Stay Safe Directions (Non-Melbourne) (No 6).

Workplace Directions (No.9)The purpose of these directions is to limit the number of Victorians attending Work Premises. The Workplace Directions (No 9) come into force at 11:59pm on 8 November 2020 and replace the Workplace Directions (No 8).

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

2.4 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. 

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

3.1 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.

3.2 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).

3.3 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.

3.4 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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