Thursday, 14 November 2024

Subordinate Legislation and Administrative Arrangements Amendment Bill 2024

Second reading

Debate resumed on motion of Harriet Shing:

That the bill be now read a second time.

Evan MULHOLLAND (Northern Metropolitan) (17:48): I will speak on the Subordinate Legislation and Administrative Arrangements Amendment Bill 2024 for the next 29 minutes and 54 seconds. I am looking forward to making quite a lengthy contribution on this bill because it is important to speak on these kinds of things, particularly legislative tidy-ups and clean-ups. It does a number of things, all of which I could go into a long amount of detail on. But one thing it does do is make some changes around the Emergency Management Act 1986, around pandemic declarations under the Public Health and Wellbeing Act 2008 and around national emergencies under the National Emergency Declaration Act 2020 of the Commonwealth. Essentially the government seeks to implement this change, which would potentially provide for less scrutiny and the avoidance of certain administrative processes in relation to pandemic declarations under the Public Health and Wellbeing Act 2008.

I do not think anyone here or at least on this side of the house can forget the extent to which this state was locked down. I do not think anyone can forget the hotel quarantine fiasco, the banning of playgrounds and the 5-kilometre curfew. We saw police harassing elderly people sitting on park benches and police flying over religious communities trying to restrict them from practising their faith. I note, and I know Ms Crozier has spoken about it recently, the recent COVID review report that came out, which actually did show that the states went too far, particularly Victoria – disproportionately too far. Back then I was working for an organisation called the Institute of Public Affairs, which was calling out a lot of the restrictions and the burdensome requirements which were placed on Victorians in the world’s longest lockdown. We did come out and reflect, with research, on a lot of these issues. I was out there in the media speaking about the restrictions from a locked home, or from Sydney, which I escaped to for a brief period, and I was blasted by the likes of PR Guy –

Georgie Crozier: Where’s PR Guy gone?

Evan MULHOLLAND: Yes, where has he gone now? He has gone off with Dan; he is down on the Mornington Peninsula. I am pretty sure he actually got into a golf club on the Mornington Peninsula that Mr Andrews got rejected from.

All of them spoke their criticisms, saying that I wanted to kill grandmas and all these other things. Well, in the end – and I want to say this on behalf of my friend Gideon Rozner as well – I was right. We were right. The evidence and the history books will know – and Hansard now will show – that we were right. Mr Limbrick was right, the IPA was right and we were right on this side of the chamber – we had gone too far with the restrictions and with the world’s longest lockdowns. History will show what a disaster that was for our children, what a disaster that was for our state’s mental health and what a disaster it was for everyone that was stuck in that situation, particularly in 2021. I come from the perspective that my first son is a COVID baby. I, along with a number of other friends, raised young children during that period, and it was incredibly difficult. You did not have the support networks everyone else is afforded. People in New South Wales did have those support networks. I really worry about the effect that is going to have long term on a lot of families and children who grew up without those childhood norms that provide for well-rounded children, teenagers and families because of what this government did to this state and the effect that it will have on this state.

What was the end result? Did we have the lowest mortality in the country, or did we have the highest mortality in the country? No Victorian who lived in this state during the time of the pandemic and those declarations under the Public Health and Wellbeing Act will ever forget the way in which power was used and abused by this government – by people working in the name of the government and then ultimately by government itself when the government moved to make sure that the Minister for Health would in fact be the party signing off on various declarations and measures. Then of course there was the Coate inquiry, where the former Premier had the most convenient lapse of memory when under scrutiny. They say Emperor Nero fiddled while Rome burnt. Here we had a Premier allowing MOGing – machinery of government changes – while Victoria crumbled. No-one can forget what this government did in the pandemic. Many reviews and the history books – and now Hansard – will show what a disgrace this government was in how it acted.

Even the former chief health officer Brett Sutton, who we had ingrained into our minds through daily press conferences, has admitted they got some things wrong. He admitted they got some things wrong – you don’t think? We have only been talking about it for years, about how wrong decisions were made, about how fundamental rights were trampled upon. Now week upon week we have protests in the city protesting various governments. I have always stood up for the freedom to protest and always been very consistent regardless of views that I disagree with. But I have to note the height of hypocrisy, that people who wanted to protest legally and lawfully against the pandemic and against the control of government were prevented from doing so.

Who can forget the police arresting a pregnant woman in her pyjamas? I worked with Zoe Buehler and a number of her family members to amplify her story at the time, and I was proud to because if her partner had not live streamed on his Facebook that incident, the world would not have known the lengths which this government went to in its pandemic response to silence opinion. I mean, creating events on a Facebook page about a community meet-up, that gets a pregnant woman arrested? Really. In Ballarat it was disgraceful. It was appalling, it was, and this government should be condemned for what it did to people. But I also want to highlight the hypocrisy of locking down protests they do not agree with but allowing continuous, unending protests at the same time, all in the name of public health. Public health – I mean, really? And now the record books show they got it wrong. I was right, my friend Gideon Rozner was right, David Limbrick was right, this side of the chamber was right, and this government should be condemned for how wrong they were.

David LIMBRICK (South-Eastern Metropolitan) (17:58): I also would like to say a few words about the Subordinate Legislation and Administrative Arrangements Amendment Bill 2024, and I am happy to say that I am in complete agreement with Mr Mulholland on this one. What this bill does is mostly technical things, but one of the things that it does which concerns me greatly is it clarifies in a very bad way how orders through the pandemic powers or other emergency powers should be exempt from scrutiny by Parliament.

I note that in the last term of Parliament there was much discussion about whether these orders should be treated as subordinate legislative instruments or not, and I note that Mr Davis in the last term of Parliament raised this point many times both in here and with me. This bill appears to make it very certain that they are exempt from parliamentary scrutiny. That is not good, because I do not think that will be a very good thing for the future. As Mr Mulholland pointed out, many things that happened during the pandemic, as the history books are already starting to show, were some of the most crazy overreach and restrictions on people’s rights that we have ever seen in this state. I have said it many times and I will keep saying it. Throughout human history we have sacrificed the welfare of children to benefit everyone else. Children were never in danger from COVID. We knew that right from the start. Children were not in danger and yet we locked them up. We took them out of school, we locked them in their houses, we forced them to take medicine that their parents might not have wanted them to have. We did all sorts of horrible things to them, and they were sacrificed; their welfare was sacrificed for the benefit of everyone else. How many civilisations throughout history have done that? It was absolutely outrageous what happened. In the last term of Parliament we moved motions to try and push the government to open the schools. They voted against that; they did not want that.

I know that people in the community now, even people that supported the government during the pandemic, are questioning all those things that happened – a lot of people – because they look back at it now and it is like a bad dream; it is like a nightmare. They cannot believe that we descended so quickly into such an awful state where, like Mr Mulholland was saying, people could not even walk out on the street – women, grandmas were attacked in parks for sitting there with their friends. They put bunting around the parks because mums were sitting there and having a coffee. This is absolutely insane, the levels of power-mad control, and one of the things that lots of people mistake is they say, ‘Oh, the government did this, the government did this, the government did this.’ I actually think that what the government did is that they stepped away, and they let the public health bureaucrats take over. We got a glimpse of what happens when you let the public health bureaucrats take over. You give them this tiny KPI – the KPI is to stop disease transmission – and then everything else can go to hell. Everything else they do not care about, and they have got unlimited power. The government’s role on this should have been to show some sort of moral authority to say, ‘No, you’ve gone too far,’ and pull them back, but that did not happen. So as a solution to this, a part solution, what I am proposing is an amendment to this. Can I get that amendment circulated now, please.

Amendment circulated pursuant to standing orders.

David LIMBRICK: What my amendment does is change the way that orders are made under the Emergency Management Act 1986 and the Public Health and Wellbeing Act 2008 or a national emergency under the National Emergency Declaration Act 2020 of the Commonwealth so they are always subject to parliamentary scrutiny. So this does not stop the government making emergency declarations; it does not stop them making emergency orders, but what it does do is it allows a safeguard, and that safeguard is that Parliament has the ability to disallow these orders. I think that this should have happened during the pandemic, and I think that this is an appropriate response, because it should be the case that if Parliament think that they have gone too far – or the health bureaucrats or whoever is in charge have gone too far – they have that ability as a safety valve to be able to say, ‘No, we do not accept this.’ I think that there are sufficient tensions in the system, because with Parliament doing that, bringing that up and voting for it, from that point they are taking responsibility for that action, and they will be held accountable.

I know that I would not support anything undermining an emergency order unless I was absolutely certain that what they were doing was wrong. I tell you, there was a lot that I was certain of that was wrong during the pandemic, and closing the schools was one. That was wrong. We knew it then, we know it now, and if there had been that possibility then I think maybe these people who exercise this power might not have gone so far, because they would know that if they went too far maybe Parliament might step in, right? I think that that sort of knowledge that there is always someone that can stop them would be a good thing, and it would stop them overreaching as if they are unbound by norms and that they just do whatever they like, because that is pretty much what happened during the pandemic. There needs to be some sort of safety valve so that Parliament can put its fist down and say, ‘No, you’ve gone too far.’ I think that that is a good amendment; I think it is a reasonable amendment. It does not obstruct the government from handling emergencies, it does not slow it down, but there is a safety valve that will always be in the minds of the bureaucrats that come up with the orders. They will think, ‘Have I gone too far with this?’ It will force them to think a little bit.

We saw that one of the checks in the pandemic orders, and prior to that under the emergency powers under the Public Health and Wellbeing Act, was meant to be the Charter of Human Rights and Responsibilities. That failed – that safeguard utterly failed. The proportionality of the restrictions on human rights that is meant to be measured when these decisions are made – none of those were made public until the pandemic bill came in. And then when we finally got to look at the pandemic declaration orders – they published summaries of the human rights assessments – they were nonsense. Many of these justifications for these extreme actions were so lacking and so poorly written. Even some of the references to scientific information were wrong in them, and this is what they were relying on through the pandemic.

We saw through the Ombudsman’s investigation into the housing tower lockdowns that when they were queried about the human rights charter assessment that they are meant to do, they said it was a mental process – a mental process. They locked down the housing towers. They could not even get outside and get some fresh air and exercise. The Libertarian Party moved an amendment to try and get fresh air and exercise guaranteed into the emergency orders, and that was voted down. Fresh air and exercise – I mean, it is absolutely crazy. We need to have some sort of safeguard here so that this does not happen again, and that is what I am proposing.

Michael GALEA (South-Eastern Metropolitan) (18:06): I also rise to speak on the Subordinate Legislation and Administrative Arrangements Bill 2024, which I am sure will go down in history as the SLAAB. Indeed many times in this place we have the great privilege of coming in to speak on bills and motions that have profound and great consequence for this state. I cannot say that this bill is one of those occasions, despite the best efforts of Mr Mulholland to make this sound as hysterical and as exciting as possible.

What this is is a very functional series of amendments to subordinate legislation, otherwise known as regulations, which will, amongst other things, mean clearer definitions on what constitutes legislative character versus a purely administrative character with regard to the Subordinate Legislation Act 1994. It will formalise and enable processes for departmental consultation within departments, not just that level done at the ministerial level. It will ensure that statutory rules are easily accessible by ensuring that they are online; you should not have to go and find the government printer to access subordinate legislation. And it will also allow certain statutory rules to bypass regular procedures temporarily, ensuring that urgent issues in emergency situations can be addressed without unnecessary delays.

I think it is important to note that these exemptions will be closely scrutinised by Parliament to maintain accountability. The provisions in this bill, as with all subordinate legislation, already provide for parliaments to have that role. Despite what Mr Mulholland was saying, that there would not be that role, the Parliament explicitly does have that role, and it is for those reasons as well that the government will not be supporting Mr Limbrick’s amendment today, as we believe it not to be necessary given that it is already factored in specifically as part of this legislation. I commend the bill to the house.

Georgie CROZIER (Southern Metropolitan) (18:08): I rise to speak to the Subordinate Legislation and Administrative Arrangements Bill 2024. As has been said, this is a legislative tidy-up largely around the Subordinate Legislation Act 1994, the Administrative Arrangements Act 1983 and the Monetary Units Act 2004. There is some tidying up with those major pieces of legislation.

The issue that I would like to speak to, which has been mentioned by all speakers, is the issue around clause 23 regulations. That clause talks about:

exempting a statutory rule or class of statutory rule or a legislative instrument or class of legislative instrument from the application of this Act or any provision of this Act for a specified time, not exceeding 12 months;

Example

Regulations might be made which exempt a specific class of statutory rule from the application of this Act during a state of disaster declared under the Emergency Management Act 1986, a pandemic declaration under the Public Health and Wellbeing Act 2008 or a national emergency under the National Emergency Declaration Act 2020 of the Commonwealth.”.

That is what Mr Mulholland and Mr Limbrick have been talking about: what happened in this place, in this state, during the COVID pandemic and what happened in this Parliament. The Legislative Assembly was shut down. Members of Parliament, who represent their electorates, could not come into this place, get the information they need and question the government. No, it was shut down. But it was this house that fought to have this place open when the government wanted to shut this chamber down too. That must never, ever happen again. It was a disgrace on so many levels, whether it was the locking of the playgrounds, keeping children out of school or disallowing people to come across the border to see dying loved ones or to seek medical treatments and attention. It was disgraceful the way that the Premier of the time just admonished anyone, for goodness sake, for looking at a sunset.

What happened during those dark years must never, ever happen again, and that is why when Mr Limbrick said his amendments are a safeguard, they are. We need these amendments in place to ensure that that never happens again. We were in this chamber, and we managed, as much as the government wanted to shut us down. It was absolutely appalling what went on. Mr Limbrick’s amendments go to that safeguard, and that is why the Liberals and Nationals will be supporting them.

I want to just make some comments around Mr Davis’s actions during that time when he was opposition leader in the Council and what he fought for on behalf of the Victorian people and this place and what he was doing. He is still fighting for the release of documents from the Department of Health – four years later, he is still fighting in VCAT. The Department of Health, disgracefully, are still assessing whether they will release the documents about why the decisions were made. We know that the chief health officer Mr Limbrick was talking about did not make all the decisions. He confessed: ‘No, the curfew was not based on medical advice.’ Who the hell made that decision? Victorians have never known. I think we all do know. It was that megalomaniac that ran the damn state. I swear that that is why these amendments are absolutely imperative, because denying the information that affected Victorians’ rights and their livelihoods was what went on. That is why those documents need to be released. It was appalling administration. It was appalling governance, and Victorians were affected in so many ways. Mr Mulholland spoke of his situation. There were others that were denied seeing their elderly parents in hospital, denied seeing their loved ones. It was cruel, it was inhumane and it was just terrible, terrible governing. That is why, disgracefully, the government will not back Mr Limbrick’s amendments, because they know they got it wrong.

We should have had a royal commission into what went on here. We had the harshest restrictions and the worst outcomes. Never forgive or never forget, Victorians, what Labor did to you during those long dark years, because they took away your rights and they took away so much. They have caused so much grief on so many levels. Mr Limbrick, your amendments should be commended, because they are about the Parliament putting the safeguards in place to have that parliamentary scrutiny which we fought for and which was denied by Labor and the government during the pandemic years. I commend you for putting them forward, and we support them wholeheartedly. I hope the rest of the crossbench agree as well.

Motion agreed to.

Read second time.

Committed.

Committee

Clauses 1 to 17 agreed to.

New clause (18:17)

I move:

1. Insert the following New Clause before clause 18 –

‘17A Disallowance of statutory rule or part of a statutory rule

In section 23(1) of the Subordinate Legislation Act 1994 –

(a) in paragraph (c), for “Parliament.” substitute “Parliament; or”;

(b) after paragraph (c) insert –

“(d) the statutory rule has been exempted, by the regulations, from the application of a provision of this Act.”.’.

As I have already spoken about, the intent of this amendment is to allow emergency orders to undergo parliamentary scrutiny through disallowance and other mechanisms. Just for the record and so my intent is clear: if this amendment fails, I will not be putting the other amendments. Also, if this amendment fails, I will be opposing the bill.

The government appreciates Mr Limbrick’s view in this regard. We have had several conversations about these matters in various forums, but we will not be supporting the proposed amendments to clause 23. Clause 23, as it stands, simplifies the cumbersome process in relation to exemption certificates by ministers, the Premier et cetera. The amendment that is being proposed by the government is relatively straightforward and designed to simplify the process; that is all. Even if we were to strike out clause 23, we would still be able to extend regulations anyway. This is relatively straightforward tidying up of legislation and nothing more.

Council divided on new clause:

Ayes (15): Melina Bath, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Nick McGowan, Evan Mulholland, Rikkie-Lee Tyrrell, Richard Welch

Noes (21): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Shaun Leane, Sarah Mansfield, Rachel Payne, Aiv Puglielli, Georgie Purcell, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

New clause negatived.

Clauses 18 to 22 agreed to.

Clause 23 (18:26)

I just want to confirm that clause 23 will only be used in exceptional circumstances, such as a state of emergency.

Yes, Dr Mansfield, I can confirm that the intention of clause 23 is that this provision would only be used in exceptional circumstances involving emergencies such as you have described, including things like a pandemic or where a state of disaster is declared under the Emergency Management Act 1986.

I also have a question. Can I confirm that these exempted regulations will not be disallowable by Parliament?

I can confirm that the regulations would be disallowable by the Parliament.

Clause agreed to; clauses 24 to 30 agreed to.

Reported to house without amendment.

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (18:27): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

Third reading

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (18:28): I move:

That the bill be now read a third time and do pass.

Council divided on motion:

Ayes (34): Ryan Batchelor, Melina Bath, John Berger, Lizzie Blandthorn, Gaelle Broad, Katherine Copsey, Georgie Crozier, David Davis, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Renee Heath, Ann-Marie Hermans, Shaun Leane, Wendy Lovell, Trung Luu, Sarah Mansfield, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Rachel Payne, Aiv Puglielli, Georgie Purcell, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt, Richard Welch

Noes (3): Moira Deeming, David Limbrick, Rikkie-Lee Tyrrell

Motion agreed to.

Read third time.

The PRESIDENT: Pursuant to standing order 14.28, the bill will be returned to the Assembly with a message informing them that the bill has been agreed to without amendment.