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Judges, QCs raise alarm over Andrews' new emergency powers

Patrick Durkin
Patrick DurkinBOSS Deputy editor

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A powerful group of retired judges and leading QCs has written to Victorian Premier Daniel Andrews expressing alarm over proposed laws giving designated officers power to arrest anyone suspected of breaching COVID-19 rules.

The COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill passed the lower house of Victoria's Parliament on Friday, but the retired judges and QCs warn it would be "unprecedented, excessive and open to abuse".

QCs Philip Crutchfield, left, and Michael Borsky are among senior legal figures alarmed by the proposed laws.  Wayne Taylor

The laws would allow the Andrews government to make anyone an authorised officer with the power to arrest anyone with COVID-19, or their close contacts, whom the authorised officer reasonably believes "is likely" to breach an emergency direction.

The 14 legal figures who have signed the letter include retired High Court judge Michael McHugh, former Federal Court judge Peter Heerey, QC, and QCs Neil Young, Michael Borsky and Philip Crutchfield.

"We are deeply concerned by the passage of the ... Bill through the Legislative Assembly," the letter, provided to The Australian Financial Review, reads.

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"The Bill would also allow any person the Secretary considered appropriate to be authorised to exercise emergency powers," it says.

Mr Borsky said that since the letter's publication, the group had been contacted by other former judges and leading QCs asking to be added as signatories. They included former Court of Appeal judge David Ashley, Paul Hayes, QC, Ross Gillies, QC, Jennifer Batrouney, QC, and Rachel Doyle, SC.

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The legal figures warn that any person the government's Department Secretary considered appropriate to be authorised could exercise emergency powers with no requirement to be police officers or public servants, with unclear rights of appeal.

The Victorian Health Department has confirmed its public health team numbered less than 57 when the pandemic began, with authorised officers granted extraordinary powers over the public. These officers were limited to a handful of highly trained and qualified public health experts.

Melbourne's Herald Sun reported last weekend that the Premier plans to bring back retired police officers to help police COVID-19 rules, with the so-called "dad's army" given extraordinary powers to detain, arrest and fine members of the public.

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Greens MP Tim Read, who moved but failed to amend the bill in the lower house, said the party would argue to amend the laws in the upper house. He said the Greens had been briefed by the government that leaders in ethnic communities might also be appointed authorised officers.

"If they put all the power in one person, they become the expert witness, judge and jailer," Mr Read told the Financial Review. "It is much easier to abuse power if it resides with just one person."

Crossbench MP Fiona Patten, who supported the six-month extension of emergency powers granted to Mr Andrews in August after opposing the original 12-month proposal, said her Reason Party would oppose the Omnibus Bill after being inundated with public concerns.

"It is quite extraordinary," she told the Financial Review. "They could detain a person if they think that person is likely to fail to comply. There are no time frames or oversight."

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But Derryn Hinch took exception to Ms Patten's suggestion his Justice Party crossbench MPs might support it, and said they were still considering their position.

"How dare Fiona Patten, the aggrandising, self-appointed 'cross-bench leader' in the Victorian Upper House, say on 3AW that the Justice Party will vote for the controversial omnibus bill. We are just reading the fine print before next month’s vote," Mr Hinch tweeted.

Ms Patten replied that was not what she said.

Liberty Victoria president Julian Burnside, QC, said "the idea that the law will allow any citizen to detain any other citizen, summarily and indefinitely, is alarming".

Listed company chairman Adir Shiffman, who started the ball rolling when he sent his concerns to leading Melbourne QCs, warned the proposed legislation was like "thought police".

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"Whilst it is almost inconceivable that such 'thought police' legislation could even be considered in Australia, it has already passed through the Lower House of the Victorian Parliament, supported by the entire Andrews government," he said. "These terrifying powers have no place in Australia, or indeed any Western liberal democracy, under any circumstances."

But when asked about the new laws last Thursday, Mr Andrews played down any reasons for concern on the powers which would run through until April 26 next year.

"It extends some arrangements, it deals with some other gaps that have become evident over the course of the last six or seven months," Mr Andrews said.

"There are things like giving to additional authorised officers powers, so we can have more of them doing more work, so not just police, trying to spread the enforcement role which takes many different forms, everything from workplace inspections all the way through to some of the public enforcement issues."

Patrick Durkin is Melbourne bureau chief and BOSS deputy editor. He writes on news, business and leadership. Connect with Patrick on Twitter. Email Patrick at pdurkin@afr.com

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