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: 18 September 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 was extended on 2 September until 11:59pm on 13 September 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 was previously due to expire on 13 September 2020. It has been extended until midnight 11 October 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)

The following Directions are currently in force:

Area Directions (No.8): Area Directions identify areas within Victoria which have a higher prevalence of, or risk of exposure to, coronavirus (COVID-19) and which are subject to specific directions which are reasonably necessary to protect public health.

Care Facilities Directions (No.11): This Direction  continues restrictions to care facilities, including alcohol and drug rehabilitation facilities, disability residential care and homelessness residential facilities.

Diagnosed Persons and Close Contact Directions (No.11): These directions 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.

Hospital Visitors Directions (No.11): Under the Direction, 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. Hospitals may restrict and/or impose conditions on visitations by persons who have been tested for COVID-19 but have are still awaiting their results.

Permitted Worker Permit Scheme and Access to Onsite Childcare (No.5): These directions establish the Permitted Worker Permit Scheme and the Access to Onsite Childcare/Kindergarten Permit Scheme. The Permitted Worker Permit Scheme Directions come into force at 11:59pm on 16 August 2020.

Restricted Activities Directions (Restricted Areas) (No.9): These directions restrict the operation of certain businesses and undertakings in the Restricted Area in order to limit the spread of COVID-19.  The Directions provide for circumstances in which library services can be provided, outdoor communal exercise equipment and playgrounds can be used, and provide clarification regarding childcare for vulnerable children. 

Stay at Home (Restricted Areas) (No.15): These Directions restrict gatherings and social interactions in the Restricted Area. They direct persons who ordinarily reside in the Restricted Area to not leave their residence, except for necessary goods or services, care or other compassionate reasons, work or education, exercise or other specified reasons. Residents are permitted to use their vehicle to travel to a spot for exercise, provided it is within 5km of their ordinary residence.  If a person leaves their premises for exercise they must not leave for longer than 2 hours, they must travel in the vehicle alone or with another person with which they usually reside, unless this is not reasonably practical. Only one person from a given residence per day may leave the premises for necessary goods and services. The Directions also provide for a 9pm-5am curfew in Metropolitan Melbourne. The Directions establish a social bubble system of nominee persons and nominated persons. 

Restricted Activity Directions (Non-Melbourne) (No.5): On 16 September 2020, restrictions in Victoria’s Relevant Area (all of Victoria outside Metropolitan Melbourne) eased to Step 3 restrictions. These directions provide information on the activities which are now allowed, but restricted under certain circumstances (eg, outdoor exercise, beauty and personal care, restaurants, holiday accommodation, and weddings and funerals). These directions need to be read together with the Restricted Activity Directions (Non-Melbourne) below.  

Stay Safe Directions (Non-Melbourne): These directions provide the day-to-day requirements for people when they leave home in the Relevant Area (all of Victoria outside Metropolitan Melbourne) under Step 3 restrictions. These directions need to be read together with the Restricted Activity Directions (Non-Melbourne) above. The Stay Safe Directions (Non-Melbourne) now allow all residents in the Relevant Area to leave home for any reason, as long as they wear a face covering at all times, or if an exception applies, carries a face covering at all times. A person who lives in the Relevant Area must not travel to the Restricted Area (Metropolitan Melbourne) unless they are travelling for necessary goods or services, care or compassionate reasons, work or education, or other specified reason. People are not allowed to visit another person’s house, unless they are providing a service, reside at the premises, or are a part of the household bubble. A person is not permitted to attend a public gathering with more than 9 other persons unless they are attending a wedding or a funeral, the other people ordinarily reside in the same premises, or they are undertaking work or education service.

Workplace Directions (No.5): The purpose of these directions is to limit the number of Victorians attending Work Premises. Under these directions: employers must not permit a worker to perform work at the work premises where it is reasonably practicable for the worker to work at the worker’s place of residence or another suitable premises which is not the work premises. Where the employer permits or requires work to be performed at the premises, various preventive measures are required including: employees must wear face coverings, the employer must have a COVID-19 safe plan and density quotient limits must be followed. The directions also establish how employers must respond to suspected and confirmed cases of COVID-19. These directions add new definitions of ‘indoor zone’ and ‘member of the public’.

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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