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: 30 June 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

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 Safe Directions (No 2): These directions replace the Stay Safe Directions. They commenced on 21 June and are in force until 12 July. Under these Directions, public gatherings will be limited to 10 people (reduced from 20 people); the number of visitors to a home will reduce to 5 visitors (reduced from 20 people); private worship or small religious ceremonies will be limited to 20 people plus those reasonably required for the ceremony. Auction houses, real estate auctions, open house inspections and community facilities remain limited at 20 people plus those reasonably required to facilitate the auction/inspection/facility. Physical distancing of at least 1.5 metres is required.

Restricted Activity Directions (No 10): Under these directions, patron limits in restaurants, cafes and pubs will remain, with up to 20 seated patrons per space (indoor or outdoor). A maximum group size of 10 people applies.Bars and clubs can have up to 20 seated patrons per space. A maximum group size of 10 people applies. Seated service of alcohol without food will be allowed.Patron limits in galleries, museums, national institutions, historic sites, outdoor amusement parks, zoos and outdoor arcades will remain, with up to 20 patrons per indoor space. Indoor cinemas, movie theatres, concert venues, theatres and auditoriums can open with up to 20 seated patrons per space.Indoor sports centres and venues can open, with up to 20 people per space, with a limit of up to 10 people per group/activity at any one time for those aged over 18 years old.Changing rooms and showers can open for sporting and recreational facilities, including swimming pools.The limit on 3 per lane in swimming pools will no longer apply.Ski season will open. Shared facilities at camping and tourist accommodation can open, with increasing screening and safeguards in place. Indoor play centres and toy libraries will be able to open with 20 people per space.

Diagnosed Persons and Close Contacts Directions (No. 3): These directions replace the Diagnosed Persons and Close Contacts Directions (No 2) given on 31 May 2020. These directions require: (a) diagnosed persons to notify the Department if a person begins residing with them while they are self-isolating; (b) consolidate self-quarantine requirements so that persons residing with a diagnosed person are treated as close contacts; (c) permit a close contact to choose the location at which they are required to self-quarantine; (d) permit an officer of the Department to vary or revoke a notice given to a person of a determination that the person is a close contact, where appropriate on a review of the determination and relevant circumstances; (e) provide continuity for persons required to self-quarantine under the Diagnosed Persons and Close Contacts Directions (No 2) because they reside with a diagnosed person, by providing that the requirements in relation to self-quarantine under those directions continue to apply to them; and(f) permit the Chief Health Officer or Deputy Chief Health Officer to grant exemptions to the requirements of these directions, where appropriate on a review of the relevant circumstances.

Hospital Visitor Directions (No 6): These directions replace the Hospital Visitor Directions (No 5) given on 16 June 2020. These directions permit certain visitors who might otherwise be excluded from entering or remaining in a hospital to visit a patient for the purposes of end of life support; or to visit a patient whose medical condition is life threatening and that patient is an immediate family member of the visitor, where the visitor is authorised to enter or remain at the hospital by an officer of the hospital with the position of Executive Director Nursing or equivalent.

Care Facilities Directions (No 5): These directions replace the Care Facilities Directions (No 4), and clarify that persons providing functional and well-being support services (such as hairdressing, diversional and recreational therapies and music therapies) are allowed to enter a care facility to provide these services to residents.

Direction - Detention notice (No 6): This notice replaces the Direction and Detention Notice (No 5).  This notice states that hotel quarantined persons that have arrived in Victoria on or after 11.59 pm on 27 June 2020 will be detained for a further period of 10 days if at the end of their fourteen day quarantine period if they refuse to be tested for COVID-19.  The penalty for an individual who fails to comply with this direction is $19,826.40.

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

1.4 Freedom of Assembly

1.4.1 Background

The previous ‘twenty person’ rule implemented in Victoria via the Stay Safe Directions made on 1 June 2020, were revoked and replaced by  the Stay Safe Directions (No 2). The Directions reduced limits on the number of people who can gather.

This direction creates a ‘stay safe period’, which begins on 21 June 2020 and ends on 12 July 2020. 

During the stay safe period, this direction: 

(a) permits a group of up to 5 people to gather in a person's home 

(b) permits a group of up to 10 people to gather in an open public place; and 

(c) reduces the number of people that can attend a wedding to 20 people plus those reasonably required for the ceremony.

During this period, people in Victoria can leave their ordinary place of residence, but must comply with social distancing guidelines. 

1.4.2 Exceptions

A person may arrange to meet with more than 9 other persons at an open public place if it is necessary for one of the following purposes:

  • Engaging in a permitted activity provided they comply with any requirements under the Restricted Activity Directions (No 9)
  • Work;
  • Education;
  • Emergency purposes;
  • Purposes as required or authorised by law;
  • Purposes relating to the administration of justice.

A person may leave their residence using public or private transport regardless of how many people are on the tram, train or bus. 

A person must not allow 10 people to enter their premises unless they are entering for the following purposes: 

  • To attend or undertake work or obtain education services
  • To provide childcare or child-minding
  • If the person is a parent, guardian of a child 
  • For an emergency purpose, 
  • To provide care and support to a relative. 

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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