Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (Vic)

Public Health and Wellbeing Amendment (Pandemic Management) Act 2021

No. 53 of 2021

table of provisions

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

3Principal Act

Part 2—Amendments relating to pandemic declarations

4Definitions

5Delegation by Secretary

6Chief Health Officer's exercise of certain powers

7Functions and powers of the Chief Health Officer

8Power of delegation

9Special powers of Secretary in a state of emergency

10Secretary may appoint authorised officers

10ADetention Appeals Officers and Registrar

11Application of Division

12New Part 8A inserted

13Powers in the case of a risk to public health

14Chief Health Officer may authorise exercise of certain powers

14AInformation to be given to detained persons

14BApplications may be made for review of certain decisions in relation to a person subject to detention

14CNew section 200BA inserted

14DDetention Review Officer must decide applications

14EReview referred back to Chief Health Officer

15New section 212A inserted

17New Division 4A of Part 11 inserted

18New Division 5A of Part 11 inserted

19Insertion of new section 248C

Part 2A—Establishment of the Pandemic Declaration Accountability and Oversight Committee

19ADefinitions

19BEstablishment of Joint House Committees

19CNew section 14A inserted

19DMembership of Joint Investigatory Committees

19ENew section 21A inserted

19FElection of chairperson and deputy chairperson

19GSittings

Part 3—Amendments relating to concessional infringement scheme

20Definitions

21New Part 8B inserted

Part 4—Consequential amendments relating to Parts 2 and 3

Division 1—Consequential amendments relating to Part 2

22Approval of service as a youth control order planning meeting program

23Isolation for detection, prevention or mitigation of COVID-19 or other infectious disease

24Entitlements of person placed in isolation under section 600M

25Matters to which regard may be had in exercise of powers

26Temporary measures in response to COVID-19 pandemic

27Definitions

28Power to issue prohibition notice

29Power to give directions

30Repeal of Part

32Exception to compliance with certain inspection requirements when an emergency declaration is in force

33Declaration of emergency situation

34Powers of public sector body Heads in emergency situations

35Duties and powers of protective services officers

Division 2—Consequential amendment that commences on 16 December 2021

36Declaration of a state of emergency

Division 3—Consequential amendments relating to Part 3

37Definitions

38Functions and powers of the Director

39Delegation

40Extended period for registration

41Offence to give false information

Part 5—Amendments relating to quarantine detention fees during the COVID-19 pandemic

Division 1—Certain requirements disapplied

42Section 238D substituted

Division 2—Other matters

43Waiver of fees payable in relation to quarantine detention

44Section 238E repealed

45New sections 248A and 248B inserted

46Definitions

47Meaning of quarantined person

48Liability to pay quarantine detention fees

49COVID-19 Quarantine Victoria to invoice quarantined persons for fees relating to detention

50New section 258A inserted

51Waiver of fees

52New sections 260A to 260D inserted

53Payment of fees

54Section 264 repealed

Part 6—Amendment of Infringements Act 2006 and Fines Reform Act 2014

Division 1—Amendment of Infringements Act 2006

55Definitions

56New section 3A inserted

Division 2—Amendment of Fines Reform Act 2014

57FVS application

Part 7—Repeal of this Act

58Repeal of this Act

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Endnotes

1      General information

Public Health and Wellbeing Amendment (Pandemic Management) Act 2021

No. 53 of 2021

[Assented to 7 December 2021]

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to amend the Public Health and Wellbeing Act 2008 in relation to the effective management of pandemics; and

(b)to amend the Public Health and Wellbeing Act 2008 in relation to fees for detention of persons in quarantine during the COVID-19 pandemic; and

(c)to amend the Infringements Act 2006 to broaden the scope of what constitutes special circumstances in that Act and the Fines Reform Act 2014 and to make consequential amendments to those Acts for the purposes of the concessional infringement scheme in the Public Health and Wellbeing Act 2008; and

(d)to make consequential amendments to other Acts.

2Commencement

(1)Subject to subsections (2), (3) and (4), this Act comes into operation on the day after the day on which it receives the Royal Assent.

(2)The following provisions come into operation on a day or days to be proclaimed—

(a)Part 3;

(b)Division 3 of Part 4;

(c)Division 2 of Part 5;

(d)Part 6.

(3)Division 2 of Part 4 comes into operation on 16 December 2021.

(4)If a provision mentioned in subsection (2) does not come into operation before the day that is 12 months after the day on which this Act receives the Royal Assent, it comes into operation on that day.

3Principal Act

In this Act, the Public Health and Wellbeing Act 2008 is called the Principal Act.

Part 2—Amendments relating to pandemic declarations

4Definitions

(1)In section 3(1) of the Principal Act insert the following definitions—

"compliance and enforcement policy means a policy issued under section 231A;

contact tracing information has the meaning given by section 165CB(1);

contact tracing purposes—see section 165CB(2);

designated health service provider has the same meaning health service provider has in the Health Practitioner Regulation National Law;

Detention Appeals Officer means a person appointed to be a Detention Appeals Officer under section 32A(1);

Detention Appeals Registrar means the person appointed to be the Detention Appeals Registrar under section 32F(1);

disease of pandemic potential see subsection (6);

disease vector means an animal other than a human being, including a bird or insect, that is capable of carrying a pathogen that—

(a)is transmissible to human beings; and

(b)is capable of causing disease in human beings;

health information has the same meaning as it has in the Health Records Act 2001;

Independent Pandemic Management Advisory Committee means a committee established under section 165CE(1);

pandemic declaration has the meaning given by section 165AB(1);

pandemic disease—see subsection (5);

pandemic information determination has the meaning given by section 165BT(1);

pandemic management area means an area specified in a pandemic declaration to be an area to which the declaration applies;

pandemic management general power means a power under 165BA(1)(a) or (b);

pandemic management order power means a power under section 165B(1)(a) or (b);

pandemic management power means a pandemic management general power or a pandemic management order power;

pandemic order has the meaning given by section 165AI(1);

Pandemic Order Register means the register established under section 165CS;

personal information has the same meaning as it has in the Privacy and Data Protection Act 2014;

personal protective equipment includes, but is not limited to, face coverings;

protective services officer has the same meaning as in the Victoria Police Act 2013;

public authority has the same meaning as it has in the Charter of Human Rights and Responsibilities;

Worksafe inspector means an inspector within the meaning of the Occupational Health and Safety Act 2004;".

(2)In section 3(1) of the Principal Act, in the definition of community transmission, for "COVID-19, means transmission of COVID-19" substitute "a pandemic disease or a disease of pandemic potential means transmission of the disease".

(2A)In section 3(1) of the Principal Act, the definition of Detention Review Officer is repealed.

(3)In section 3(1) of the Principal Act, in the definition of prescribed senior officer, after "that Act" insert "or is an employee of a health service".

(4)In section 3(1) of the Principal Act, in the definition of serious risk to public health, for "has or may occur" insert "has occurred or may occur".

(5)For section 3(4) of the Principal Act substitute—

"(4)Without limiting the definition of serious risk to public health in subsection (1), for the purposes of this Act, a pandemic disease or a disease of pandemic potential may pose a material risk of substantial injury or prejudice to the health of human beings, even when—

(a)the rate of community transmission of the disease in Victoria is low; or

(b)there have been no cases of the disease in Victoria for a period of time.".

(6)After section 3(4) of the Principal Act insert—

"(5)For the purposes of this Act, an infectious disease is a pandemic disease at a particular time if, at that time, there is a pandemic outbreak of that infectious disease.

(6)For the purposes of this Act, an infectious disease is a disease of pandemic potential at a particular time if—

(a)at that time, the infectious disease has the potential to give rise to a pandemic, but is not yet a pandemic disease; or

(b)all of the following apply—

(i)before that time, the infectious disease was a pandemic disease;

(ii)at that time, the infectious disease is no longer a pandemic disease;

(iii)at that time, the infectious disease has the ongoing potential to give rise to a pandemic.".

5Delegation by Secretary

(1)After section 19(1)(a) of the Principal Act insert—

"(ab)any prescribed senior officer; or".

(2)In section 19(5) of the Principal Act, for "The" substitute "Despite subsection (1), the".

6Chief Health Officer's exercise of certain powers

Before section 20A(a) of the Principal Act insert—

"(aa)any of the public health risk powers and the pandemic management powers under section 165AW(2)(a); or".

7Functions and powers of the Chief Health Officer

In section 21(b) of the Principal Act, after "advice to" insert "the Premier,".

8Power of delegation

(1)After section 22(1) of the Principal Act insert—

"(1A)The Chief Health Officer by instrument may delegate any power, duty or function of the Chief Health Officer under section 165AW, 189, or 199 to—

(a)an executive within the meaning of section 4(1) of the Public Administration Act 2004; or

(b)a prescribed senior officer.".

(2)In section 22(2) of the Principal Act, after "(1)" insert "or (1A)".

9Special powers of Secretary in a state of emergency

(1)In the heading to section 28 of the Principal Act, after "emergency" insert "or a pandemic".

(2)In section 28 of the Principal Act for "If there is a state of emergency," substitute "At any time when there is a state of emergency or when a pandemic declaration is in force,".

10Secretary may appoint authorised officers

In section 30(1) of the Principal Act, after "2004" insert ", or an employee of a health service".

10ADetention Appeals Officers and Registrar

For section 32A of the Principal Act substitute—

"32A   Governor in Council may appoint Detention Appeals Officers

(1)Subject to subsection (2), the Governor in Council, on the recommendation of the Minister, may by instrument appoint a person as a Detention Appeals Officer at any time when a pandemic declaration or a declaration of a state of emergency is in force.

(2)A person appointed as a Detention Appeals Officer must be an Australian lawyer of at least 10 years' experience.

32BRemuneration and allowances

A person appointed as a Detention Appeals Officer is entitled to the remuneration and allowances determined from time to time by the Governor in Council.

32CTerms and conditions of appointment

(1)A Detention Appeals Officer —

(a)holds office for the period specified in the instrument of appointment, which must not end after the time when the pandemic declaration or declaration of a state of emergency referred to in section 32A(1) ceases to be in force; and

(b)is eligible to be reappointed; and

(c)holds office on the terms and conditions determined by the Governor in Council.

(2)A Detention Appeals Officer is not, in respect of the office of Detention Appeals Officer, subject to the Public Administration Act 2004.

32DIndependence of Detention Appeals Officers

A Detention Appeals Officer —

(a)must act independently, impartially and in the public interest in the performance of their functions and duties and the exercise of their powers; and

(b)is not subject to the direction or control of the Secretary or the Minister in relation to the performance of their functions or duties or the exercise of their powers under this Act or the regulations.

32EDetention Review Officers taken to be Detention Appeals Officers

(1)A person who, immediately before the commencement day, held office as a Detention Review Officer under the old Act is taken to have been appointed as a Detention Appeals Officer under section 32A(1) on and from the commencement day.

(2)The Governor in Council is taken to have determined the same terms and conditions as applied under the old Act, in respect of a person taken to be appointed as a Detention Appeals Officer because of the operation of subsection (1), to the extent that those terms and conditions are consistent with sections 32A, 32B, 32C and 32D, with the following modifications—

(a)the Governor in Council may terminate the appointment of the person and the Secretary may not terminate the appointment of the person;

(b)the terms and conditions on which the person holds office, including in relation to remuneration and allowances, may be later amended by the Governor in Council and not by the Secretary;

(c)a reference in the original instrument of appointment to a Detention Review Officer is taken to include a reference to a Detention Appeals Officer;

(d)a reference in the original instrument of appointment to a state of emergency ceasing to exist or be in force is taken to include a reference to a pandemic declaration ceasing to be in force;

(e)a reference in the original instrument of appointment to the functions, duties and powers of a Detention Review Officer is taken to include a reference to the functions, duties and powers of a Detention Appeals Officer under section 200C and Part 8A of this Act;

(f)a reference in the original instrument of appointment to the detention under section 200 is taken to include a reference to detention under section 165B(1)(b) or section 165BA(1)(b).

(3)In this section—

commencement day means the day on which this section came into operation;

Detention Review Officer has the meaning given by the old Act;

old Act means this Act, and regulations and instruments made under this Act, as in force immediately before the commencement day;

original instrument of appointment means the instrument of appointment of a person as a Detention Review Officer under the old Act.

32FSecretary may appoint Detention Appeals Registrar

(1)The Secretary by instrument may appoint a person to be the Detention Appeals Registrar for the purposes of this Act.

(2)An instrument of appointment of a person as the Detention Appeals Registrar may—

(a)specify the functions, duties or powers under this Act or the regulations to which the appointment relates; and

(b)be made subject to any conditions that the Secretary considers to be appropriate.

(3)A person appointed as the Detention Appeals Registrar is employed under Part 3 of the Public Administration Act 2004.

(4)The Secretary must ensure that the Detention Appeals Registrar has access to such information as may reasonably be required for the performance of the functions and duties and the exercise of the powers of the Detention Appeals Registrar under this Act or the regulations.

(5)The Secretary may employ persons under Part 3 of the Public Administration Act 2004 to assist the Detention Appeals Registrar in the performance of the functions and duties and the exercise of the powers of the Detention Appeals Registrar under this Act or the regulations.".

11Application of Division

In section 54(b) of the Principal Act, after "paragraph (a)" insert "other than Divisions 7 and 8 of Part 8A (which deals with contact tracing information)".

12New Part 8A inserted

After Part 8 of the Principal Act insert—

"Part 8A—Protection of life and public health during pandemics

Division 1—Objective and interpretation

165AObjective of Part

(1)The objective of this Part is to protect public health and wellbeing in Victoria by establishing a regulatory framework for—

(a)preventing and managing the serious risk to life, public health and wellbeing presented by the outbreak or spread of pandemics and diseases of pandemic potential; and

(b)supporting proactive and responsive decision-making for the purposes of preventing and managing the outbreak or spread of pandemics and diseases of pandemic potential; and

(c)ensuring that decisions made and actions taken under this Part are informed by public health advice and other relevant information including, but not limited to, advice given by the Chief Health Officer; and

(d)promoting transparency and accountability in relation to decisions made and actions taken under this Part; and

(e)safeguarding contact tracing information that is collected when a pandemic declaration is in force.

(2)The Parliament—

(a)recognises the importance of protecting human rights in managing the serious risk to life, public health and wellbeing presented by the outbreak or spread of pandemics and diseases of pandemic potential; and

(b)intends that nothing in this Part displaces the operation of the Charter of Human Rights and Responsibilities; and

(c)intends that the Charter of Human Rights and Responsibilities therefore applies to the following—

(i)the interpretation of this Part and subordinate instruments made under this Part;

(ii)acts done, and decisions made, under this Part by public authorities.

Division 2—Pandemic declarations

165ABPremier may make a pandemic declaration

(1)The Premier may make a declaration under this subsection (a pandemic declaration) if the Premier is satisfied on reasonable grounds that there is a serious risk to public health arising from—

(a)a pandemic disease; or

(b)a disease of pandemic potential.

(2)The Premier must consult with, and consider the advice of, the Minister and the Chief Health Officer before making a pandemic declaration.

(3)The Premier may make a pandemic declaration whether or not, at the time the declaration is made—

(a)the pandemic disease is present in Victoria; or

(b)the disease is a disease of pandemic potential that is present in Victoria—

as the case requires.

(4)The validity of a pandemic declaration is not affected by either of the following—

(a)the pandemic declaration being made on the basis that the Premier was satisfied on reasonable grounds, at the time of making the declaration, that there was a serious risk to public health arising from a disease of pandemic potential, but the disease was a pandemic disease at that time;

(b)the pandemic declaration being made on the basis that the Premier was satisfied on reasonable grounds, at the time of making the declaration, that there was a serious risk to public health arising from a pandemic disease, but the disease was a disease of pandemic potential at that time.

165ACForm and content of a pandemic declaration

(1)A pandemic declaration must be in writing and must specify the following—

(a)the area or areas to which the declaration applies, being throughout Victoria or in one or more specified areas of Victoria;

(b)the pandemic disease, or the disease of pandemic potential, to which the declaration relates;

(c)the period for which the declaration continues in force, which must not exceed a period of 4 weeks but may be extended under section 165AE.

(2)If, on the coming into force of a pandemic declaration, a declaration of a state of emergency will cease to be in force under section 165CH(3), the pandemic declaration must include a statement to that effect.

(3)A failure to comply with subsection (2) does not affect the validity of a pandemic declaration.

165ADWhen a pandemic declaration comes into force and ceases to be in force

(1)A pandemic declaration comes into force—

(a)on the day specified in the declaration and, if a time is also specified, at that time on that day; or

(b)if no day is specified in the declaration, immediately upon its making.

(2)A pandemic declaration continues in force until—

(a)the end of the period specified in the declaration under section 165AC(1)(c) or, if the declaration is extended under section 165AE(1), the end of the period as extended; or

(b)if the declaration is revoked before it ceases to be in force under paragraph (a), upon its revocation.

165AEVariation, extension and revocation of a pandemic declaration

(1)The Premier may vary or extend a pandemic declaration if the Premier is satisfied on reasonable grounds that there continues to be a serious risk to public health arising from—

(a)a pandemic disease, including a disease that was a disease of pandemic potential when the pandemic declaration first came into force but is a pandemic disease at the time of the variation or extension; or

(b)a disease of pandemic potential, including a disease that was a pandemic disease when the pandemic declaration first came into force but is a disease of pandemic potential at the time of the variation or extension.

(2)Subsection (1) applies whether or not, at the time of the variation or extension, the disease is present in Victoria.

(3)The Premier—

(a)must revoke a pandemic declaration if the Premier is satisfied on reasonable grounds that there is no longer a serious risk to public health arising from a pandemic disease or a disease of pandemic potential; and

(b)may at any other time revoke a pandemic declaration if the Premier considers it appropriate to do so.

(4)The Premier must consult with, and consider the advice of, the Minister and the Chief Health Officer before varying, extending or revoking a pandemic declaration.

(5)There is no limit on the number of times a pandemic declaration may be extended under subsection (1), but the period of each extension must not be longer than 3 months.

(6)Without limiting subsection (1), a variation of a pandemic declaration may modify any pandemic management area specified in the declaration, including by extending the pandemic management area.

(7)A variation, extension or revocation of a pandemic declaration must be by written instrument.

(8)The validity of a variation or extension of a pandemic declaration is not affected by either of the following—

(a)the variation or extension being made on the basis that the Premier was satisfied on reasonable grounds, at the time of the variation or extension, that there was a serious risk to public health arising from a disease of pandemic potential, but the disease was a pandemic disease at that time;

(b)the variation or extension being made on the basis that the Premier was satisfied on reasonable grounds, at the time of the variation or extension, that there was a serious risk to public health arising from a pandemic disease, but the disease was a disease of pandemic potential at that time.

165AFNotification of the making, variation, extension or revocation of a pandemic declaration

(1)As soon as practicable after the making, variation, extension or revocation of a pandemic declaration, the Premier must cause notice of the making, variation, extension or revocation to be—

(a)broadcast from a broadcasting station in Victoria; and

(b)in the case of the making, variation or extension of a declaration, published with a copy of the declaration as made, varied or extended in the Government Gazette; and

(c)in the case of the revocation of a declaration, published in the Government Gazette.

(2)Production of a Government Gazette purporting to contain—

(a)notice of the making, variation extension or revocation of a declaration under this section is evidence of that making, variation, extension or revocation; and

(b)a copy of the declaration is evidence of the terms of the declaration.

165AGReporting to Parliament in relation to a pandemic declaration

(1)If a pandemic declaration is made, varied, extended or revoked, the Premier must prepare a report in accordance with this section on the making, variation, extension or revocation, which must include the following—

(a)a statement of the reasons for the making, variation, extension or revocation;

(b)a copy of the advice of the Minister and the Chief Health Officer in respect of the making, variation, extension or revocation;

(c)a summary of the matters in subsection (4) , if applicable.

(2)Subject to subsection (3), if a House of the Parliament is sitting on the day after the coming into force of the pandemic declaration or the variation, extension or revocation, the Premier must cause the report to be laid before that House on that day.

(3)If—

(a)a House of the Parliament is not sitting on the day after the coming into force of the pandemic declaration or the variation, extension or revocation; or

(b)for another reason it is not reasonably practicable for the report to be laid before that House on that day—

the Premier must, within 3 business days of the coming into force of the pandemic declaration or the variation, extension or revocation, give a copy of the report to the Clerk of that House.

(4)A report under subsection (1) in relation to a variation, extension or revocation of a pandemic declaration must also include a summary of the pandemic orders made, the public health risk powers and the pandemic management powers exercised and the reasons for the exercise of those powers during the period—

(a)beginning when the pandemic declaration that is extended, varied or revoked first came into force; and

(b)ending when the variation, extension or revocation came into force.

(5)If the Clerk of either House is given a copy of the report, the Clerk must—

(a)give a copy of the report to each member of the House as soon as practicable after receiving it; and

(b)cause a copy of the report to be laid before the House on the next sitting day of the House.

(6)A failure to comply with the requirements of this section in relation to a report in respect of the making, variation, extension or revocation of a pandemic declaration does not affect the validity of the declaration or the variation, extension or revocation, as the case requires.

165AHReports tabled when Parliament is not sitting

(1)A report that is given to a Clerk of either House under section 165AG(3) is taken to have been published by order under the authority of the Parliament.

(2)The publication of a report under section 165AG(3) is absolutely privileged and the provisions of sections 73 and 74 of the Constitution Act 1975, and of any other enactment or rule of law relating to the publication of the proceedings of the Parliament, apply to and in relation to the publication of that report as if—

(a)it were a report to which those sections applied; and

(b)it had been published by the Government Printer under the authority of the Parliament.

Division 3—Pandemic orders

165AIMinister may make a pandemic order

(1)The Minister may, at any time on or after the making of a pandemic declaration, make any order (a pandemic order) that the Minister believes is reasonably necessary to protect public health.

(2)Without limiting subsection (1), a pandemic order may include, but is not limited to, an order—

(a)that requires persons to be detained in a pandemic management area for the period specified in the order—

(i)if the conditions specified in the order are satisfied; or

(ii)in the circumstances specified in the order; or

(b)that requires that the detention of persons in a pandemic management area be extended for the period specified in the order—

(i)if the conditions specified in the order are satisfied; or

(ii)in the circumstances specified in the order; or

(c)that restricts movement in a pandemic management area; or

(d)that requires movement in, into or from a pandemic management area; or

(e)that prevents or limits entry to a pandemic management area; or

(f)that prohibits or regulates gatherings whether public or private in a pandemic management area; or

(g)that requires the use of personal protective equipment in a pandemic management area; or

(h)that prohibits or regulates the carrying on of activities, businesses or undertakings in a pandemic management area; or

(i)that requires the provision of information (including information about the identity of any person), the production of documents or the keeping of records; or

(j)that requires the medical examination or testing of persons in a pandemic management area or as a condition of entry to a pandemic management area; or

(j)that requires the quarantining, destruction or other management of disease vectors in a pandemic management area.

Note

A person can be detained in the exercise of a pandemic management power: see sections 165B(1)(b) and 165BA(1)(b). Special protections apply to detention under this Part, including the right of a detained person to apply for review by a Detention Appeals Officer of the detention: see Division 6.

(3)A period of detention specified in a pandemic order must not exceed the period that the Minister believes is reasonably necessary to eliminate or reduce a serious risk to public health.

(4)Without limiting subsection (2)(b), the reasons for making a pandemic order that requires the extension of a period for which persons are detained may relate to a refusal or failure to comply with a requirement to undergo a medical examination or a medical test.

165AJPandemic order prevails over other subordinate instruments

A pandemic order has effect despite anything to the contrary in any subordinate instrument, other than a subordinate instrument made under the Charter of Human Rights and Responsibilities.

165AKTo whom a pandemic order may apply

(1)A pandemic order may be expressed to apply to the following—

(a)all persons;

(b)specified classes of person;

(c)specified persons.

(2)A pandemic order must not be expressed to apply to a single named individual.

(3)Without limiting subsection (1), a pandemic order may apply to, differentiate between or vary in its application to persons or classes of person identified by one or more of the following, if such application, differentiation or variation is relevant to the serious risk to public health posed by the disease specified in the pandemic declaration to which the pandemic order relates—

(a)their presence in a pandemic management area or in a particular location in a pandemic management area;

(b)their participation in or presence at an event;

(c)an activity that they have undertaken or are undertaking;

(d)their characteristics, attributes or circumstances.

Examples

A pandemic order might—

(a)differentiate between persons or classes of person on the basis of their vaccination status in relation to a pandemic disease or a disease of pandemic potential, by restricting persons who are unvaccinated from engaging in specified activities unless they are exempt from vaccination;

(b)differentiate between persons or classes of person on the basis of age, if age is relevant to the risks to health posed by a pandemic disease or a disease of pandemic potential. For example, a pandemic order might limit the ability of persons or classes of person to receive visitors at, or to move within, residential care facilities.

Note

The Minister may only make a pandemic order that the Minister believes is reasonably necessary to protect public health—see section 165AI.

Further, the Charter of Human Rights and Responsibilities applies to subordinate instruments under this Part. Section 165AP(2)(c) and (d) have the effect that when the Minister makes, varies or extends a pandemic order that applies to, differentiates between or varies in its application to persons or classes of person identified by reference to a matter specified in this subsection, the Minister must publish an explanation of whether, in the Minister's opinion, the order does, or does not, limit any human right set out in the Charter of Human Rights and Responsibilities, and an explanation of any limitations identified.

165ALMinister must consult before making a pandemic order

(1)Before making a pandemic order, the Minister must request the advice of the Chief Health Officer in relation to—

(a)the serious risk to public health posed by the disease specified in the pandemic declaration to which the proposed pandemic order relates; and

(b)the public health measures that the Chief Health Officer considers are necessary or appropriate to address this risk.

(2)In making a pandemic order, the Minister—

(a)must have regard to the advice of the Chief Health Officer (which may be given orally or in writing) about the matters referred to in subsections (1)(a) and (b); and

(b)may have regard to any other matter the Minister considers relevant including, but not limited to, social and economic matters.

(3)The Minister may consult any other person the Minister considers appropriate before making a pandemic order.

165AMAdditional matters relating to a pandemic order

(1)A pandemic order must be in writing and must specify the following—

(a)the day on which, and time when, it comes into force, which must not be before the time when the pandemic declaration to which it relates comes into force;

(b)the period for which it continues in force;

(c)that refusal or failure to comply with the order without a reasonable excuse is an offence.

(2)A pandemic order may be expressed to apply in, or in relation to, the whole or a specified part of a pandemic management area.

(3)A pandemic order—

(a)may be of general or of specially limited application; and

(b)may differ according to differences in time, place or circumstance; and

(c)may leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a specified person or specified class of persons; and

(d)may provide in a specified case or class of case for the exemption of persons or things from any of the provisions of the pandemic order, whether unconditionally or on specified conditions, and either wholly or to such extent as is specified; and

(e)may apply, adopt or incorporate, with or without modification, any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any person—

(i)wholly or partially or as amended by the pandemic order; or

(ii)as formulated, issued, prescribed or published at the time the pandemic order is made or at any time before then; or

(iii)as formulated, issued, prescribed or published from time to time; and

(f)may confer powers or impose duties in connection with the pandemic order on any specified person or specified class of persons; and

(g)may make provision for and in relation to requiring a specified person or specified class of persons to obtain a permit (however described) including, but not limited to, in respect of an activity, a business, an undertaking, a gathering, or movement within or entry into an area; and

(h)may make provision for and in relation to matters relating to permits (however described) including but not limited to eligibility, applications, conditions, variations and cancellation; and

(i)may make provision for and in relation to matters of a transitional or saving nature including but not limited to in relation to the transition from a state of emergency after a pandemic declaration comes into force; and

(j)may provide for any matter or thing incidental to the making of a pandemic order.

165ANWhen a pandemic order comes into force and ceases to be in force

(1)A pandemic order comes into force on the day and at the time specified in the order.

(2)A pandemic order ceases to be in force—

(a)at the end of the period specified in the order; or

(b)if, before the end of that period, the order is revoked, or the pandemic declaration to which the order relates ceases to be in force, upon that revocation or cessation.

165AOVariation, extension or revocation of a pandemic order

(1)Subject to subsection (2), the Minister may at any time vary, extend or revoke a pandemic order under this section.

(2)The Minister must request the advice of the Chief Health Officer before varying, extending or revoking a pandemic order, other than in relation to a variation for the purpose of correcting a defect, mistake or omission.

(3)In varying, extending or revoking a pandemic order, the Minister—

(a)must have regard to the advice of the Chief Health Officer given in response to a request under subsection (2) (which may be given orally or in writing); and

(b)may have regard to any other matter the Minister considers relevant including, but not limited to, social and economic matters.

(4)The Minister may consult any other person the Minister considers appropriate before varying, extending or revoking a pandemic order.

165APPublication of a pandemic order and associated documents

(1)The Minister must ensure that before a pandemic order or a variation, extension or revocation of a pandemic order comes into force, a copy of the order as made, varied or extended, or of the instrument of revocation, as the case requires, is published on the Pandemic Order Register.

(2)Subject to subsection (5), the Minister must ensure that within 7 days after a pandemic order or a variation, extension or revocation of a pandemic order comes into force, the following documents are published on an Internet site maintained by the Department—

(a)a copy of, or a written record of, the advice given by the Chief Health Officer as mentioned in section 165AL(2)(a) or 165AO(3)(a) in relation to the making, variation, extension or revocation of the order;

(b)a statement of reasons for the making, varying, extension or revocation of the order;

(c)in the case of the making, variation, or extension of the order, a statement as to whether, in the opinion of the Minister, the order does or does not limit any human right set out in the Charter of Human Rights and Responsibilities; and

(d)if, in the opinion of the Minister, the order as made, varied or extended does limit a human right set out in the Charter of Human Rights and Responsibilities, an explanation of—

(i)the nature of the human right limited; and

(ii)the importance of the purpose of the limitation; and

(iii)the nature and extent of the limitation; and

(iv)the relationship between the limitation and its purpose; and

(v)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

(3)If—

(a)more than one pandemic order is made, varied, extended or revoked on the same day; and

(b)the Chief Health Officer's advice, the statement of reasons or the explanation applies to more than one of the orders—

the advice, statement of reasons or explanation, as the case requires, is only required to be published once in relation to the orders to which it relates.

(4)For the purposes of subsection (2)(a)—

(a)to the extent that the Chief Health Officer's advice was given wholly or partly in writing, a copy of the written advice, or a written record of the advice, must be published; and

(b)to the extent that the Chief Health Officer's advice was given wholly or partly orally, the Minister must cause a record of the advice to be prepared and endorsed by the Chief Health Officer, and a copy of the written record of the advice must be published.

(5)If a variation of a pandemic order is only for the purpose of correcting a defect, mistake or omission, subsection (2) does not apply to the variation, but the Minister must ensure that within 7 days after the variation comes into force, a statement certifying that the variation is only for that purpose is published on an Internet site maintained by the Department.

(6)A failure to comply with the requirements of this section does not affect the validity of the pandemic order or the variation, extension or revocation, as the case requires.

165AQTabling in Parliament of documents relating to a pandemic order

(1)The Minister must ensure that within 4 sitting days after a pandemic order or a variation, extension or revocation of a pandemic order comes into force—

(a)a copy of the pandemic order or the instrument of variation, extension or revocation, as the case requires, is laid before each House of the Parliament; and

(b)a copy of each document that is required to be published under section 165AP(2) in relation to the making, variation, extension or revocation of the order is laid before each House of the Parliament.

(2)A failure to comply with the requirements of this section does not affect the validity of the pandemic order or the variation, extension or revocation, as the case requires.

Note

However, the Pandemic Declaration Accountability and Oversight Committee may report on a failure to comply (see section 165AU(1)(b)), which is a precondition for disallowance under section 165AU.

165ARPublication of a pandemic order in the Government Gazette

After the making, variation, extension or revocation of a pandemic order, the order as made, varied or extended, or the instrument of revocation, must be published in full—

(a)in the next general edition of the Government Gazette; or

(b)in a special edition of the Government Gazette within 10 working days after the making, variation, extension or revocation.

Division 4—Scrutiny, suspension and disallowance of pandemic orders

165ASConsideration of pandemic orders by Parliament

(1)The Pandemic Declaration Accountability and Oversight Committee may report to each House of Parliament if the Pandemic Declaration Accountability and Oversight Committee considers that a pandemic order or an instrument that extends, varies or revokes a pandemic order—

(a)does not appear to be within the powers conferred by this Act; or

(b)without clear and express authority being conferred by this Act—

(i)has a retrospective effect; or

(ii)imposes any tax, fee, fine, imprisonment or other penalty; or

(iii)purports to shift the legal burden of proof to a person accused of an offence; or

(iv)provides for the subdelegation of powers delegated by this Act; or

(c)is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities.

(2)Subject to subsection (3), a report of the Pandemic Declaration Accountability and Oversight Committee under this section may contain such recommendations as the Pandemic Declaration Accountability and Oversight Committee considers appropriate, including a recommendation that a pandemic order or an instrument that extends, varies or revokes a pandemic order, should be—

(a)disallowed in whole or in part; or

(b)amended as suggested in the report.

(3)The Pandemic Declaration Accountability and Oversight Committee must not recommend that a pandemic order, or an instrument that extends, varies or revokes a pandemic order, should be disallowed in whole or in part unless the Pandemic Declaration Accountability and Oversight Committee has first requested and considered the advice of the Independent Pandemic Management Advisory Committee in relation to the pandemic order concerned.

165ATSuspension of pandemic order or part of a pandemic order, etc.

(1)If the Pandemic Declaration Accountability and Oversight Committee—

(a)proposes under section 165AS to recommend that a pandemic order, or an instrument that extends, varies or revokes a pandemic order, should be—

(i)disallowed in whole or in part; or

(ii)amended; and

(b)is of the opinion that considerations of justice and fairness require that the operation of the pandemic order or any part of the pandemic order, or the instrument or any part of the instrument that extends, varies or revokes a pandemic order, should be suspended pending the consideration by the Parliament of the pandemic order or instrument—

the Pandemic Declaration Accountability and Oversight Committee may propose in the report under section 165AS that the operation of the pandemic order or part of pandemic order, or the instrument or part of the instrument, as the case requires, be suspended.

(2)If the Pandemic Declaration Accountability and Oversight Committee proposes that the operation of a pandemic order or part of a pandemic order, or an instrument or any part of an instrument that extends, varies or revokes a pandemic order, be suspended—

(a)the Pandemic Declaration Accountability and Oversight Committee must forthwith send a copy of the report to the responsible Minister, the Governor in Council and the maker of the pandemic order or the instrument; and

(b)subject to subsection (3), the operation of the pandemic order or part of the pandemic order or the instrument or part of the instrument, as the case requires, is suspended at the end of the period of 7 days after the sending of the report to the Governor in Council until the end of the period during which the pandemic order or part of the pandemic order or the instrument or part of the instrument, as the case requires, could be disallowed under section 165AU.

(3)The Governor in Council, on the recommendation of the responsible Minister made within the period of 7 days referred to in subsection (2), may by Order published in the Government Gazette declare that the operation of the pandemic order or part of the pandemic order, or the instrument or part of the instrument, as the case requires, is not suspended.

(4)As from the date on which the Order referred to in subsection (3) is published, the provision in a report of the Pandemic Declaration Accountability and Oversight Committee providing for the suspension ceases to have any force or effect.

(5)While the operation of a pandemic order or part of a pandemic order, or an instrument or part of an instrument, as the case requires, is suspended under this section, the pandemic order or instrument is deemed not to have been made or to have been made without that part.

165AUDisallowance of pandemic order or instrument in whole or part

(1)This section applies to a pandemic order, or an instrument that extends, varies or revokes a pandemic order, if—

(a)in a report under section 165AS, the Pandemic Declaration Accountability and Oversight Committee has recommended that the pandemic order or the instrument be disallowed in whole or in part; or

(b)there was a failure to comply with section 165AQ and the Pandemic Declaration Accountability and Oversight Committee has reported that failure to each House of the Parliament.

(2)A pandemic order or instrument to which this section applies is disallowed in whole or in part if—

(a)a notice of a resolution to disallow the pandemic order or instrument is given in each House of the Parliament within whichever of the following periods applies—

(i)if the pandemic order or instrument and associated documents were laid before each House of the Parliament in accordance with section 165AQ, on or before the 18th sitting day of each House after the pandemic order or instrument is laid before that House;

(ii)if the pandemic order or instrument and associated documents were not laid before each House of the Parliament in accordance with section 165AQ, on or before the 24th sitting day of each House after the pandemic order or instrument is published in the Government Gazette in accordance with section 165AR; and

(b)the resolution is passed by a joint sitting of the Legislative Assembly and the Legislative Council held in accordance with subsection (6) and held before the end of the period of 3 months after the giving of the notice of the resolution.

(3)Notice of a resolution to disallow a pandemic order, or an instrument that extends, varies or revokes a pandemic order, may be expressed to apply to the whole or to any part of the pandemic order or instrument.

(4)A resolution to disallow the whole or any part of a pandemic order, or an instrument that extends, varies or revokes a pandemic order, has effect according to its tenor.

(5)If a House of the Parliament is prorogued or the Legislative Assembly is dissolved—

(a)the prorogation or dissolution does not affect the power of the House to pass a resolution disallowing the whole or any part of a pandemic order, or an instrument that extends, varies or revokes a pandemic order; and

(b)the calculation of sitting days of the House is to be made as if there had been no prorogation or dissolution.

(6)At a joint sitting of the Legislative Assembly and the Legislative Council for the purposes of subsection (2)(b)—

(a)the members have the same privileges and immunities as the members of the Legislative Assembly in relation to proceedings before that House; and

(b)a question is to be decided by an absolute majority of the total number of the members of the Legislative Assembly and the Legislative Council; and

(c)in the event of an equality of votes on a question, the question is to be taken to have been determined in the negative.

165AVEffect of disallowance and Clerk to publish notice of disallowance

(1)If a pandemic order or a part of a pandemic order is disallowed by the Parliament the order or part of the order, as the case requires is revoked and ceases to be in force on and after the time of the disallowance.

(2)If an instrument that varies a pandemic order, or a part of such an instrument, is disallowed by the Parliament, the pandemic order as in force immediately before the revocation is revived, on and after the time of the disallowance, as if the variation made by the instrument or part of the instrument, as the case requires, had not been made.

(3)If an instrument that extends a pandemic order is disallowed, the instrument is revoked and the pandemic order ceases to be in force on and after the time of the disallowance.

(4)If an instrument that revokes a pandemic order is disallowed, the pandemic order as in force immediately before the revocation is revived on and after the time of the disallowance.

(5)If a pandemic order or a part of a pandemic order, or an instrument that extends, varies or revokes a pandemic order or a part of such an instrument, is disallowed, the Clerk of the Parliaments must cause notice of the disallowance to be published in the Government Gazette.

Division 5—Pandemic management powers

165AWChief Health Officer may authorise exercise of certain powers

(1)This section applies if—

(a)a pandemic declaration is in force; and

(b)the Chief Health Officer believes that it is reasonably necessary to grant an authorisation under this section to eliminate or reduce a serious risk to public health.

(2)The Chief Health Officer may, for the purpose of eliminating or reducing the serious risk to public health, authorise—

(a)authorised officers, or a specified class or classes of authorised officers, appointed by the Secretary to exercise any of the public health risk powers and the pandemic management powers; and

(b)if specified in the authorisation, a specified class or classes of authorised officers appointed by a specified Council or specified Councils to exercise any of the public health risk powers and the pandemic management powers.

(3)The Chief Health Officer may at any time revoke or vary an authorisation given under this section.

165AXHow may an authorisation be given?

(1)An authorisation under section 165AW(2) may be given orally or in writing.

(2)An authorisation given orally must be confirmed in writing as soon as reasonably practicable.

(3)An authorisation must—

(a)state that the authorisation is given under this Division; and

(b)describe in general terms the serious risk to public health to which it relates; and

(c)specify when the authorisation is given; and

(d)specify any restrictions or limitations that apply to the exercise of any of the public health risk powers or the pandemic management powers; and

(e)specify the period of time for which the authorisation continues in force.

165AYChief Health Officer may extend authorisation

The Chief Health Officer may extend the period of time for which an authorisation continues in force, which must not be longer than the period for which the pandemic declaration continues in force.

165AZAuthorised officers may exercise public health risk powers and pandemic management powers

Subject to section 165AX(3), an authorised officer who is authorised under section 165AW(2) may exercise any of the public health risk powers or the pandemic management powers at any time when a pandemic declaration is in force.

Note

A pandemic order prevails over a direction given by an authorised officer to the extent of any inconsistency, see section 165CQ.

165BPandemic management order powers

(1)The pandemic management order powers are as follows—

(a)to take any action or give any direction, other than to detain a person, that the authorised officer believes is reasonably necessary to implement or give effect to a pandemic order;

(b)to detain a person in a pandemic management area in accordance with a pandemic order that requires the detention of the person (including a pandemic order that requires that the detention of a person be extended).

Note

A pandemic order can require that a person be detained or that the detention of a person be extended: see section 165AI(2)(a) and (b). Special protections apply to detention under this Part, including the right of a detained person to apply for review by a Detention Appeals Officer of the detention: see Division 6.

(2)Without limiting subsection (1)(a), an authorised officer may give a direction in the exercise of a pandemic management order power under that subsection that requires a person to take, or refrain from taking, any action that authorised officer believes is reasonably necessary to ensure compliance, or limit non-compliance, by the person with a pandemic order.

Note

A pandemic order that applies generally to all persons or to a person included in a specified class can be made by the Minister, see section 165AK(1).

(3)An authorised officer may detain more than one person in a single exercise of a pandemic management order power under subsection (1)(b), if the detention of the persons is in accordance with a pandemic order.

165BAPandemic management general powers

(1)The pandemic management general powers are as follows—

(a)to take any action or give any direction, other than to detain a person, that the authorised officer believes is reasonably necessary to protect public health;

(b)to detain a person in a pandemic management area for the period the authorised officer believes is reasonably necessary to eliminate or reduce a serious risk to public health.

(2)Without limiting the pandemic management general powers, an authorised officer may give a written or oral direction in the exercise of a pandemic management general power—

(a)that restricts movement in a pandemic management area; or

(b)that requires movement in, into or from a pandemic management area; or

(c)that prevents or limits entry to a pandemic management area; or

(d)that requires a person to refrain from organising or participating in a gathering whether public or private in a pandemic management area; or

(e)that requires the use of personal protective equipment in a pandemic management area; or

(f)that requires a person to refrain from carrying on activities, businesses or undertakings, or to carry them on in a specified manner, in a pandemic management area; or

(g)that requires the provision of information (including information about the identity of any person), the production of documents or the keeping of records; or

(h)that requires medical examination or testing in a pandemic management area or before entering a pandemic management area; or

(i)that requires the quarantining, destruction or other management of disease vectors in a pandemic management area.

(3)If a direction is given orally, matters required to be specified in the direction may be stated orally.

(4)An authorised officer, in the exercise of a pandemic management general power under subsection (1)(a), must not give a direction that applies to more than one person unless the direction—

(a)relates to a particular event at a particular location and is given to persons participating in, or present at, that event (including, but not limited to, a direction to restrict movement, require movement or limit entry); or

(b)relates to a particular activity at a particular location and is given to persons undertaking that activity (including, but not limited to, a direction to restrict movement, require movement or limit entry); or

(c)is a direction to restrict movement, require movement or to limit entry, if when the direction is given the persons to whom the direction is given—

(i)are located in the immediate vicinity of the authorised officer; or

(ii)are present at a particular premises.

(5)An authorised officer must not detain more than one person in a single exercise of a pandemic management general power under subsection (1)(b).

165BBWarning before giving a direction

Before exercising a pandemic management power to give a direction, the person exercising the power must, unless it is not practicable to do so, warn the person to whom the direction is given that refusal or failure to comply with the direction without a reasonable excuse is an offence.

165BCAssistance

(1)An authorised officer may be assisted by any person in exercising a power under an authorisation given under this Part.

(2)A request for assistance by a police officer must be made to the Chief Commissioner of Police or a delegate of the Chief Commissioner of Police.

Note

Division 4A of Part 11 contains general provisions relating to compliance and enforcement.

Division 6—Special protections in respect of powers of detention

165BDWhen detention commences

The detention of a person in the exercise of a pandemic management power under section 165B(1)(b) or 165BA(1)(b) commences at whichever of the following times occurs first—

(a)the time when the person is first at a place where the person is to be detained after the exercise of the pandemic management power, whether or not the person is to remain at that place throughout the period of detention, or is to be transported to another place;

(b)the time when the person is first taken into the physical custody of an authorised officer in the exercise of the pandemic management power or into the physical custody of a person assisting an authorised officer;

(c)the time when an authorised officer takes an action in respect of the person, the taking of which is specified in the pandemic order as being the commencement of the detention of a person.

165BERequirement to isolate or quarantine not of itself detention

To avoid doubt, for the purposes of this Part, a person who is required to isolate or quarantine under a pandemic order or under a direction given in the exercise of a pandemic management power is not detained for the purposes of this Part merely because of the requirement to isolate or quarantine.

165BFPandemic management powers that involve detention

(1)Subject to subsection (4), before a person is detained pursuant to the exercise of a pandemic management power, or the detention of a person is extended in the exercise of a pandemic management power, the person must be given—

(a)a notice under subsection (2); or

(b)an explanation of the reason why it is necessary to detain the person, and a warning to the person that a refusal or failure to comply with a pandemic order, or a direction given or a requirement made, in the exercise of a pandemic management power without a reasonable excuse is an offence.

(2)A notice under this subsection must be in writing and must state the following—

(a)the purpose of the detention and its terms;

(b)any exemptions that may be available to the person in respect of the detention;

(c)an explanation of the person's rights and entitlements in relation to making a complaint, seeking an exemption or seeking a review of the detention or the extension of the detention including, but not limited to—

(i)the process for making a complaint or seeking an exemption; and

(ii)the process for making an application for review of the detention under section 165BI;

(d)that a refusal or failure to comply with a pandemic order, or with a direction given to the person, or a requirement made of the person, in the exercise of a pandemic management power without a reasonable excuse is an offence.

(2A)Without limiting subsection (2)(c), an explanation under that subsection must include an explanation of the following rights that the person has, or may have, and the processes in respect of those rights—

(a)the right to complain to the Ombudsman under the Ombudsman Act1973;

(b)the right to make a complaint under section 185 of this Act; or

(c)the right to seek review in a court.

(3)If an explanation is given under subsection (1)(b) or a notice is given under subsection (2)—

(a)it must be in a form that the person to whom it is given is capable of understanding; or

(b)t he person to whom it is given must be provided with reasonable assistance to understand the explanation or notice.

(4)If, in the particular circumstances in which a person is detained or the detention of a person is extended, it is not practicable to give a notice or an explanation to the person before the person is detained or the extension takes effect, a notice or explanation must be given as soon as reasonably practicable.

(5)If a person is given an explanation under subsection (1)(b) or (4), a notice under subsection (2) must be given to the person as soon as reasonably practicable after the explanation is given.

165BGAuthorised officers must facilitate communication and review detention

(1)An authorised officer must facilitate any reasonable request for communication made by a person who is detained under section 165B(1)(b) or 165BA(1)(b).

(2)Subject to subsection (3), an authorised officer must, at least once every 24 hours during the period that a person is detained, review whether the authorised officer is satisfied that the continued detention of the person is reasonably necessary to eliminate or reduce a serious risk to public health.

(3)If it is not reasonably practicable for a review under subsection (2) to be undertaken within a particular 24 hour period, the review must occur as soon as practicable and without undue delay.

165BHReports by authorised officers to Chief Health Officer about exercise of pandemic management powers that involve detention

(1)An authorised officer must, as soon as is reasonably practicable, give written notice to the Chief Health Officer of each of the following—

(a)that a person has been detained in the exercise of a pandemic management power under section 165B(1)(b) or 165BA(1)(b);

(b)that following a review under subsection 165BG(2), a person is to continue to be detained under section 165B(1)(b) or 165BA(1)(b).

(2)A notice under subsection (1) must include—

(a)the name of the person being detained; and

(b)a brief statement as to the reason why the person is detained or continues to be detained; and

(c)if a review under subsection 165BG(2) did not occur within a 24 hour period as required by that subsection—

(i)when the review occurred; and

(ii)the reason why the review did not occur within the 24 hour period.

(3)The Chief Health Officer must, as soon as is reasonably practicable—

(a)advise the Minister in writing of the following as applicable—

(i)that a person has been detained under section 165B(1)(b) or 165BA(1)(b);

(ii)that following a review under section 165BG(2) a person is to continue to be detained under section 165B(1)(b) or 165BA(1)(b); and

(b)include in the advice the name of the person being detained and a brief statement as to the reason why the person is, or continues to be, detained.

165BIReview of certain decisions in relation to detention

(1)A person who is detained or whose detention is extended under section 165B(1)(b) or 165BA(1)(b) may make an application to the Detention Appeals Registrar for review by a Detention Appeals Officer of the detention including, but not limited to, in respect of the following—

(a)the reasons for the detention;

(b)the period of the detention;

(c)the place of the detention;

(d)the conditions of the detention;

(e)any other matter relating to the detention.

(2)A person who has made an application under subsection (1) may make further applications under that subsection if—

(a)the most recent application made by the person has been determined; and

(b)since the most recent application was determined, new and materially different circumstances have arisen that affect the person in respect of the detention.

(3)An application under subsection (1)—

(a)must be in writing; and

(b)must specify the grounds on which the application is made; and

(c)if the application is a further application of the kind permitted by subsection (2), must include a description of the new and materially different circumstances that have arisen and affect the person in respect of the detention; and

(d)must include any prescribed information; and

(e)may include any other information that the person making the application considers appropriate.

(4)An application under subsection (1) may also be made by a person on behalf of a person who is detained—

(a)with the explicit consent of the person who is detained; or

(b)without the explicit consent of the person who is detained, if the person making the application provides a written undertaking that the person who is detained has been consulted about the application and has not refused to give consent.

(5)The Detention Appeals Registrar must ensure that an application made under subsection (1) is referred to a Detention Appeals Officer immediately after the application is received.

165BIASecretary and Detention Appeals Registrar to provide relevant information and assistance to Detention Appeals Officers

(1)The Secretary and the Detention Appeals Registrar must use their best endeavours to provide a Detention Appeals Officer with all relevant information in their possession including, but not limited to, documents and information mentioned in section 165BJ(3)(ab), as soon as reasonably practicable after an application under section 165BI is received by the Detention Appeals Registrar.

(2)The Secretary and the Detention Appeals Registrar must use their best endeavours to provide a Detention Appeals Officer with any information requested by the Detention Appeals Officer under section 165BJ(3)(c) within 24 hours after receiving the request.

(3)The Secretary and the Detention Appeals Registrar must provide all reasonable assistance requested by a Detention Appeals Officer for the purposes of the Detention Appeals Officer considering and deciding applications for review.

(4)The provision of information under subsection (1) or (2) is authorised or required by law for the purposes of the Privacy and Data Protection Act 2014 and the Health Records Act 2001.

165BJDetention Appeals Officer must decide applications

(1)This section applies if an application in respect of a decision is referred to a Detention Appeals Officer under section 165BI(5).

(2)Subject to subsection (5), the Detention Appeals Officer must use their best endeavours to decide the application, and advise the applicant in writing of the decision, the reasons for it and the review rights available to the applicant within 72 hours after the application was received by the Detention Appeals Registrar or within such longer period as is requested by the applicant.

(2A)Without limiting subsection (2), the advice under that subsection must include an explanation of the following rights that the person has, or may have, and the processes in respect of those rights—

(a)the right to complain to the Ombudsman under the Ombudsman Act1973;

(b)the right to make a complaint under section 185 of this Act;

(c)the right to seek review in a court.

(3)In deciding the application, the Detention Appeals Officer—

(a)must consider the information included in the application; and

(ab)may consider any documents and other information relied upon by the authorised officer who detained the person or extended the detention of the person under section 165B(1)(b) or 165BA(1)(b) and may consider any other information in relation to the person's detention; and

(ac)must take reasonable steps to contact the applicant in relation to the application; and

(b)may consider any other matter the Detention Appeals Officer considers relevant, including but not limited to general information provided to the Detention Appeals Officer in relation to risks to public health; and

(c)may make such further inquiries and seek such further information in relation to any aspect of the application as the Detention Appeals Officer thinks fit including, but not limited to, making inquiries of or seeking information from persons with expertise in public health.

(4)The Detention Appeals Officer may decide—

(a)not to vary the person's detention; or

(b)subject to subsections (5), (6) and (7), to vary or cease the person's detention.

(5)A Detention Appeals Officer must not vary or cease a person's detention under subsection (4)(b) unless the Detention Appeals Officer has consulted and considered the advice of the Chief Health Officer about the proposed variation or cessation.

Note

The Chief Health Officer can delegate powers, duties and functions: see section 22.

(6)If a Detention Appeals Officer consults the Chief Health Officer about the proposed variation or cessation of a person's detention, the Chief Health Officer must make their best endeavours to provide oral or written advice about the proposed variation or cessation within 24 hours.

(7)If the Chief Health Officer provides oral advice under subsection (6), a written record of the advice must be prepared as soon as practicable—

(a)by the Chief Health Officer; or

(b)by the Detention Appeals Officer, who must provide a copy of the written record to the Chief Health Officer for endorsement by the Chief Health Officer.

165BLDetention not unlawful merely because of a decision on review

If the detention of a person ceases because of a decision made on a review of the detention, the detention of the person is not unlawful merely because of the decision made on the review.

165BMDetention guidelines and standards

(1)The Minister may make and publish guidelines and standards in relation to the welfare of persons detained under section 165B(1)(b) or 165BA(1)(b).

(2)The Minister must consult the Chief Health Officer before making guidelines or standards under subsection (1).

(3)Guidelines and standards made under subsection (1) may deal with any matter relating to the welfare of detained persons.

Note

For example, matters could include the provision of psychological support and contact with other persons.

(4)In performing functions and exercising powers under this Act, a person must have regard to any guidelines and standards issued under subsection (1).

(5)If a standard makes specific provision in relation to a particular matter, a person must perform functions and exercise powers under this Act in compliance with the provision, to the extent that the provision is not inconsistent with a pandemic order.

(6)If the Minister makes a pandemic order that is inconsistent with a guideline or a standard, the Minister must explain the reasons for the inconsistency in the statement of reasons referred to in section 165AP(2)(b) in relation to the pandemic order.

Division 6A—Offences, penalties and related matters

165BNFailure to comply with pandemic order, direction or other requirement

(1)A person commits an offence if the person refuses or fails to comply with a pandemic order, or with a direction given to the person, or a requirement made of the person, in the exercise of a pandemic management power.

Penalty:In the case of a natural person, 60 penalty units;

In the case of a body corporate, 300 penalty units.

(2)A person is not guilty of an offence against subsection (1) if the person had a reasonable excuse for refusing or failing to comply.

Division 7—Information sharing

165BRSecretary and Chief Health Officer may collect, use and disclose information

The Secretary and the Chief Health Officer may collect, hold, manage, use, disclose or transfer information if this is reasonably necessary for—

(a)the performance of functions or the exercise of powers under or in relation to this Part; or

(b)achieving the objective of this Part.

165BSProvision of information etc. is authorised by law

To avoid doubt, the disclosure or transfer of personal information or health information in answering a question, giving information or producing a document or other thing as authorised or required by this Part is taken to be authorised or required by law for the purposes of—

(a)the Privacy and Data Protection Act 2014; and

(b)the Health Records Act 2001.

165BTPandemic information determination

(1)The Minister may apply to the Information Commissioner, in writing, for a determination (a pandemic information determination) under section 165BU(1) in relation to either or both of the following in respect of information that is collected, held, managed, used, disclosed or transferred for the purposes of this Part—

(a)an act or a practice of an organisation that contravenes or may contravene a specified Information Privacy Principle or an approved code of practice within the meaning of the Privacy and Data Protection Act 2014;

(b)an act or a practice of an organisation that contravenes or may contravene a specified Health Privacy Principle.

(2)An application for a pandemic information determination must specify—

(a)the act or practice to which the determination would apply; and

(b)the persons or organisations to which the determination would apply; and

(c)the Information Privacy Principle, approved code of practice or Health Privacy Principle to which the application relates; and

(d)the reasons for seeking the determination.

(3)A pandemic information determination may relate to personal information or health information or both.

165BUInformation Commissioner may make a pandemic information determination

(1)The Information Commissioner may make a pandemic information determination on application under section 165BT if satisfied that the public interest in the organisation doing the act or engaging in the practice substantially outweighs the public interest in complying with the specified Information Privacy Principle, approved code of practice or Health Privacy Principle.

(2)In deciding whether to make a pandemic information determination, the Information Commissioner—

(a)must have regard to whether permitting the organisation to do the act or engage in the practice would be in the public interest; and

(b)must have regard to the objective of this Act, the objective of this Part, the Privacy and Data Protection Act 2014 and the Health Records Act 2001; and

(c)may have regard to any other matter the Information Commissioner considers relevant.

(3)The Information Commissioner must consult the Health Complaints Commissioner before making a pandemic information determination that relates to a Health Privacy Principle.

(4)The Health Complaints Commissioner may comment in writing on a pandemic information determination made by the Information Commissioner that relates to a Health Privacy Principle.

(5)A pandemic information determination must include a statement of reasons for making the determination.

165BVEffect of a pandemic information determination

If the Information Commissioner makes a pandemic information determination, the persons or organisations to which the determination applies are not required to comply with the Information Privacy Principles, approved codes of practice and Health Privacy Principles to the extent specified in the determination.

(4)Without limiting this section, regulations made under subsection (1) may continue in effect for a period of not more than 12 months beginning on the day on which this section expires.

(5)This section expires on the second anniversary of the day on which all the provisions of this Act have come into operation.".

Part 2A—Establishment of the Pandemic Declaration Accountability and Oversight Committee

19ADefinitions

In section 3 of the Parliamentary Committees Act 2003 insert the following definitions—

"Independent Pandemic Management Advisory Committee has the same meaning as it has in the Public Health and Wellbeing Act 2008;

pandemic declaration has the same meaning as it has in the Public Health and Wellbeing Act 2008;

political party has the same meaning as it has in the Electoral Act 2002;".

19BEstablishment of Joint House Committees

After section 5(h) of the Parliamentary Committees Act 2003 insert—

"(i)the Pandemic Declaration Accountability and Oversight Committee;".

19CNew section 14A inserted

After section 14 of the Parliamentary Committees Act 2003 insert—

"15 Pandemic Declaration Accountability and Oversight Committee

The function of the Pandemic Declaration Accountability and Oversight Committee is the function conferred on it by Division 4 of Part 8A of the Public Health and Wellbeing Act 2008 in relation to scrutiny and disallowance of pandemic orders and instruments that extend, vary or revoke pandemic orders.

Note

The Pandemic Declaration Accountability and Oversight Committee may refer a matter to the Ombudsman under section 16(1) of the Ombudsman Act 1973.".

19DMembership of Joint Investigatory Committees

In section 21(2) of the Parliamentary Committees Act 2003, for "As" substitute "Subject to section 21A, as".

19ENew section 21A inserted

After section 21 of the Parliamentary Committees Act 2003 insert—

"21A Membership of Pandemic Declaration Accountability and Oversight Committee

(1)This section provides for special rules relating to the Pandemic Declaration Accountability and Oversight Committee.

(2)The members of the Pandemic Declaration Accountability and Oversight Committee must be appointed as soon as practicable after the making of a pandemic declaration.

(3)The appointments of members of the Pandemic Declaration Accountability and Oversight Committee must be revoked as soon as practicable after the ceasing in force of the pandemic declaration in relation to which they were appointed.

(4)Subject to this Act, the members of the Pandemic Declaration Accountability and Oversight Committee must be appointed, and their appointments revoked, according to the practice of Parliament relating to the appointment and revocation of appointment of members to joint select committees.

(5)Not more than half of the members of the Pandemic Declaration Accountability and Oversight Committee may be members of a political party forming the Government.".

19FElection of chairperson and deputy chairperson

After section 22(1) of the Parliamentary Committees Act 2003 insert—

"(1A)The chairperson of the Pandemic Declaration Accountability and Oversight Committee must not be a member of a political party forming the Government.".

19GSittings

(1)In section 25(5) of the Parliamentary Committees Act 2003, for "A" substitute "Subject to subsection (6), a".

(2)After section 25(5) of the Parliamentary Committees Act 2003 insert—

"(6)Subsection (5)(a) does not apply to the Pandemic Declaration Accountability and Oversight Committee, and a member of that Committee participating in a meeting of that Committee by audio link or audio visual link—

(a)is present for the purposes of determining whether there is a quorum; and

(b)may vote on a question arising at the meeting.".

Part 3—Amendments relating to concessional infringement scheme

20Definitions

In section 3(1) of the Principal Act insert the following definitions—

"attachment of debts direction has the same meaning as it has in the Fines Reform Act 2014;

attachment of earnings direction has the same meaning as it has in the Fines Reform Act 2014;

Director, Fines Victoria means the person employed as Director, Fines Victoria under section 4 of the Fines Reform Act 2014;

enforcement agency has the same meaning as it has in the Infringements Act 2006;

fine has the same meaning as it has in the Fines Reform Act 2014;

Health Privacy Principles has the same meaning as it has in the Health Records Act 2001;

Information Privacy Principles has the same meaning as it has in the Privacy and Data Protection Act 2014;

infringement fine has the same meaning as it has in the Infringements Act 2006;

infringement penalty has the same meaning as it has in the Infringements Act 2006;

land charge has the same meaning as it has in the Fines Reform Act 2014;

seven-day notice has the same meaning as it has in the Fines Reform Act 2014;

vehicle seizure and sale notice has the same meaning as it has in the Fines Reform Act 2014;".

21New Part 8B inserted

After section 165CX of the Principal Act insert—

"Part 8B—Concessional infringement scheme

165CYEligible offences

(1)For the purposes of this Part, an offence against this Act or the regulations is an eligible offence in respect of a natural person if—

(a)the offence is prescribed by the regulations; and

(b)the commission of the offence by the natural person relates to the performance of a function or the exercise of a power in respect of a pandemic disease or a disease of pandemic potential.

(2)For the purposes of this Part, a person is an eligible person in relation to an eligible offence if the person is determined to be an eligible person in relation to the offence under section 165DC(1).

165CZApplication for determination

(1)A natural person who has been issued with an infringement notice in respect of an eligible offence may apply to the Director, Fines Victoria for a determination under section 165DC(1) that they are an eligible person in respect of the eligible offence.

Note

If the Director, Fines Victoria determines under section 165DC(1) that a person is an eligible person, the infringement penalty payable by the person may be reduced under section 165DC(3).

(2)An application under subsection (1) may also be made by a person acting on behalf of the person issued with the infringement notice.

(3)An application must—

(a)be in writing; and

(b)provide evidence that the applicant is a prescribed person or a person included in a prescribed class; and

(c)provide the applicant's address for service; and

(d)refer to the infringement notice to which the application relates; and

(e)include any other prescribed information.

165DApplication to be made before certain enforcement related events

An application under section 165CZ(1) must be made before any of the following occur in respect of the infringement offence referred to in the application—

(a)a seven-day notice served on the person has expired;

(b)an attachment of earnings direction or an attachment of debts direction has been made;

(c)a land charge has been recorded;

(d)property has been seized under a vehicle seizure and sale notice;

(e)the infringement penalty and any fees that have been added to the infringement penalty under the Infringements Act 2006, the Fines Reform Act 2014 or any regulations made under those Acts have been paid;

(f)the operation of the unexpired period of a seven-day notice served on the person has been waived under section 36 of the Sheriff Act 2009;

(g)the infringement penalty or a part of the infringement penalty has been registered with the Children's Court under clause 4 of Schedule 3 to the Children, Youth and Families Act 2005.

165DAVerification of information supplied in application

The Director, Fines Victoria may specify how any information supplied in an application under section 165CZ is to be verified.

165DBSuspension of enforcement action for infringement offence the subject of application

(1)If an application is made under section 165CZ(1) the Director, Fines Victoria—

(a)must suspend any enforcement action, and not take any further enforcement action, under the Fines Reform Act 2014 against the applicant in respect of each eligible offence referred to in the application; and

(b)may direct an enforcement agency to suspend any enforcement action, and not take any enforcement action, under the Infringements Act 2006 against the applicant in respect of each eligible offence referred to in the application.

(2)A direction under subsection (1)(b) must—

(a)include notice of the application; and

(b)specify that, until the Director, Fines Victoria notifies the enforcement agency of the outcome of the application, the enforcement agency—

(i)must suspend any enforcement action under the Infringements Act 2006 against the applicant in respect of each eligible offence referred to in the application; and

(ii)must not take any further enforcement action against the applicant in respect of each such eligible offence.

(3)The suspension of enforcement action under subsection (1)—

(a)begins when the application is received by the Director, Fines Victoria; and

(b)ends on the date notice is given to the enforcement agency of the outcome of the application.

165DCDetermination of eligible person and infringement penalty reduction

(1)The Director, Fines Victoria must determine that an applicant is an eligible person in respect of an eligible offence if the Director is satisfied that—

(a)the applicant was served with an infringement notice in relation to the eligible offence; and

(b)the applicant is a prescribed person or a person included in a prescribed class.

(2)The Director, Fines Victoria must determine that an applicant is not an eligible person in respect of an eligible offence if the Director is satisfied that the criteria in subsection (1) are not met.

(3)If the Director, Fines Victoria determines that an applicant is an eligible person in respect of an eligible offence, the Director must reduce the infringement penalty in respect of the eligible offence—

(a)to the prescribed amount in respect of the eligible offence; or

(b)if a method for calculating the rate of reduction for an eligible offence is prescribed, the amount calculated in accordance with the prescribed method.

(4)If the Director, Fines Victoria reduces the infringement penalty in respect of the eligible offence, the infringement penalty is taken to be reduced in accordance with the determination.

(5)Despite subsection (4), if the applicant has already paid an amount in respect of the  infringement penalty for the eligible offence that exceeds the infringement penalty as reduced, the person is not entitled to a refund of the excess.

165DDDirector must give notice if applicant is an eligible person

(1)This section applies if the Director, Fines Victoria determines—

(a)that an applicant is an eligible person in respect of an eligible offence; and

(b)that the infringement penalty is reduced, and specifies the amount of the reduced infringement penalty, resulting from the determination.

(2)The Director, Fines Victoria must, by writing, notify the following of the determination—

(a)the applicant; and

(b)if a direction has been given under section 165DB(1)(b) to an enforcement agency, the enforcement agency.

(3)The applicant is not liable for any fees related to any fine which is the subject of an  application that accrue while the  application is being determined.

(4)The period during which an enforcement agency that has been given a direction under subsection 165DB(1)(b) in relation to an eligible offence may commence a proceeding for that offence is extended by 6 months after the date of the notice given under subsection (2)(b).

165DEDirector must give notice if applicant is not an eligible person

(1)This section applies if the Director, Fines Victoria determines that an applicant is not an eligible person in respect of an eligible offence.

(2)The Director, Fines Victoria must give written notice of the determination within 21 days of its making to the following—

(a)the applicant;

(b)any enforcement agency to which the Director, Fines Victoria has given a direction under section 165DB(1)(b).

(3)Within 21 days of the Director, Fines Victoria notifying an applicant that the applicant is not an eligible person, the person liable to pay the infringement penalty referred to in the application must—

(a)pay the infringement penalty and any fees that have been added to the infringement penalty under the Infringements Act 2006, the Fines Reform Act 2014 or regulations made under either of those Acts; or

(b)take any other action in relation to the fine which the person may take under this Act, the Infringements Act 2006 or the Fines Reform Act 2014.

(4)For the purposes of subsection (3)(a), a person is not liable for any fees related to any fine which is the subject of an application, being fees that accrue while the application is being determined.

(5)The period during which an enforcement agency that has been given a direction under subsection 165DB(1)(b) in relation to an eligible offence may commence a proceeding for that offence is extended by 6 months after the date of the notice given under subsection (2)(b).".

Part 4—Consequential amendments relating to Parts 2 and 3

Division 1—Consequential amendments relating to Part 2

22Approval of service as a youth control order planning meeting program

In section 480A(1)(a) and (b) of the Children, Youth and Families Act 2005, for "Department of Health and Human Services" substitute "Department of Health".

23Isolation for detection, prevention or mitigation of COVID-19 or other infectious disease

In section 600M(4) of the Children, Youth and Families Act 2005—

(a)after paragraph (a) insert—

"(ab)any relevant pandemic order under the Public Health and Wellbeing Act 2008 relating to COVID-19 or any other infectious disease; and";

(b)in paragraph (b), for "Department of Health and Human Services" substitute "Department of Health".

24Entitlements of person placed in isolation under section 600M

In section 600N(3) of the Children, Youth and Families Act 2005—

(a)after paragraph (a) insert—

"(ab)any relevant pandemic order under the Public Health and Wellbeing Act 2008 relating to COVID-19 or any other infectious disease; or";

(b)in paragraph (b), for "Department of Health and Human Services" substitute "Department of Health".

25Matters to which regard may be had in exercise of powers

In section 112U of the Corrections Act 1986—

(a)after paragraph (a) insert—

"(ab)any relevant pandemic order under the Public Health and Wellbeing Act 2008 relating to COVID-19 or any other infectious disease; and";

(b)in paragraph (b), for "Department of Health and Human Services" substitute "Department of Health".

26Temporary measures in response to COVID-19 pandemic

In section 7A(3) of the Court Security Act 1980—

(a)in paragraph (b)—

(i)for "Part 10" substitute "Part 8A or 10";

(ii)for "premises." substitute "premises; and";

(b)after paragraph (b) insert—

"(c)the following of any relevant pandemic order made under Part 8A of the Public Health and Wellbeing Act 2008 in relation to the COVID-19 pandemic at the court premises.".

27Definitions

In section 42C of the Evidence (Miscellaneous Provisions) Act 1958, in the definition of exceptional circumstances, after paragraph (a) insert—

"(ab)a pandemic declaration made under section 165AB of the Public Health and Wellbeing Act 2008 in an area where an accused is required to appear before a court or required to transit through in order to appear before a court; or".

28Power to issue prohibition notice

For section 190 of the Occupational Health and Safety Act 2004 substitute—

'190   Power to issue prohibition notice

Section 112 has effect as if the following subsection were inserted after section 112(1)—

"(1A)For the purposes of subsection (1), a failure to comply with any of the following is taken to be an activity that involves an immediate risk to the health or safety of a person—

(a)a pandemic order relating to the COVID-19 pandemic made under section 165AI of the Public Health and Wellbeing Act 2008;

(b)a direction relating to the COVID-19 pandemic given by an authorised officer under section 200(1)(d), 165B(1)(a) or 165BA(1)(a) of the Public Health and Wellbeing Act 2008.".'

29Power to give directions

For section 191 of the Occupational Health and Safety Act 2004 substitute—

'191Power to give directions

Section 120 has effect as if the following subsection were inserted after section 120(1)—

"(1A)For the purposes of subsection (1), a failure to comply with any of the following is taken to be an activity that involves an immediate risk to the health or safety of a person—

(a)a pandemic order relating to the COVID-19 pandemic made under section 165AI of the Public Health and Wellbeing Act 2008;

(b)a direction relating to the COVID‑19 pandemic given by an authorised officer under section 200(1)(d), 165B(1)(a) or 165BA(1)(a) of the Public Health and Wellbeing Act 2008.".'

30Repeal of Part

In section 192 of the Occupational Health and Safety Act 2004, for "16 December 2021" substitute "26 April 2022".

32Exception to compliance with certain inspection requirements when an emergency declaration is in force

In section 197H(3) of the Planning and Environment Act 1987, in the definition of emergency declaration, after paragraph (a) insert—

"(ab)a pandemic declaration under section 165AB of the Public Health and Wellbeing Act 2008; or".

33Declaration of emergency situation

In section 105A(6) of the Public Administration Act 2004, before paragraph (a) insert—

"(aa)a pandemic declaration under section 165AB of the Public Health and Wellbeing Act 2008;".

34Powers of public sector body Heads in emergency situations

(1)In section 105E(2) of the Public Administration Act 2004, for "an employee" (wherever occurring) substitute "a public sector employee".

(2)In section 105E(3) of the Public Administration Act 2004, for "An employee" substitute "A public sector employee".

(3)In section 105E(4) of the Public Administration Act 2004, for "an employee" substitute "a public sector employee".

(4)In the example at the foot of section 105E(4) of the Public Administration Act 2004, for "An employee" substitute "A public sector employee".

35Duties and powers of protective services officers

In section 52(5) of the Victoria Police Act 2013—

(a)in the definition of emergency, after paragraph (b) insert—

"(ba)a pandemic declaration made under section 165AB of the Public Health and Wellbeing Act 2008; or";

(b)in the definition of emergency area, after paragraph (b) insert—

"(ba)in the case of a pandemic declaration made under section 165AB of the Public Health and Wellbeing Act 2008, the pandemic management area to which the declaration applies; or".

Division 2—Consequential amendment that commences on 16 December 2021

36Declaration of a state of emergency

(1)In section 198(7)(c) of the Principal Act omit all the words and phrases from and including "or" to and including "21 months".

(2)In section 198(8) of the Principal Act, for "Subject to subsections (8A) and (8B), if" substitute "If".

(3)Sections 198(8A) and (8B) of the Principal Act are repealed.

Division 3—Consequential amendments relating to Part 3

37Definitions

In section 3 of the Fines Reform Act 2014, after paragraph (a) of the definition of fines application insert—

"(ab)under section 165CZ(1) of the Public Health and Wellbeing Act 2008; or".

38Functions and powers of the Director

After section 5(2)(hb) of the Fines Reform Act 2014 insert—

"(hc)to perform functions under Part 8B of the Public Health and Wellbeing Act 2008;".

39Delegation

(1)In section 8(1) of the Fines Reform Act 2014 for "or the Infringements Act 2006" (where twice occurring) substitute ", the Infringements Act 2006 or Part 8B of the Public Health and Wellbeing Act 2008".

(2)In section 8(2) of the Fines Reform Act 2014 after "Part 5" insert "", or under Part 8B of the Public Health and Wellbeing Act 2008,".

(3)After section 8(2) of the Fines Reform Act 2014 insert—

"(2A)The Director may delegate any powers or functions under Part 8B of the Public Health and Wellbeing Act 2008 other than this power of delegation to a contractor within the meaning of section 173A".

40Extended period for registration

After subsection 17(c) of the Fines Reform Act 2014 insert—

"(ca)in the case of an applicant for determination under section 165DC(1) of the Public Health and Wellbeing Act 2008, in respect of which a direction has been given to an enforcement agency under section 165DB(1)(b), no more than 6 months after the date of service of the notice of the outcome of the application given to the applicant under section 165DD(2)(a) or 165DE(2)(a), as the case requires; or".

41Offence to give false information

In section 184 of the Fines Reform Act 2014 after "Act" insert "or under Part 8B of the Public Health and Wellbeing Act 2008".

Part 5—Amendments relating to quarantine detention fees during the COVID-19 pandemic

Division 1—Certain requirements disapplied

42Section 238D substituted

For section 238D of the Principal Act substitute—

"238D Certain requirements under Subordinate Legislation Act 1994 disapplied

The following are not required for the first proposed statutory rule that is to be made under section 238A, 238B or 238C after the commencement of section 42 of the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021—

(a)consultation under section 6 of the Subordinate Legislation Act 1994;

(b)preparation of a regulatory impact statement under section 7 of the Subordinate Legislation Act 1994.".

Division 2—Other matters

43Waiver of fees payable in relation to quarantine detention

In section 238B of the Principal Act, after "section 259" insert "or 260A".

44Section 238E repealed

Section 238E of the Principal Act is repealed.

45New sections 248A and 248B inserted

At the end of Part 12 of the Principal Act insert—

"248A   Transitional provision—Meaning of quarantined person

If a person is a quarantined person within the meaning of section 256 immediately before the commencement of section 47 of the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021, the person is taken to be a quarantined person within the meaning of section 256 after that commencement.

248BTransitional provision—Payment reminder notices for unpaid quarantine detention fees

If a person is liable to pay fees under section 257 and an amount of the fees remains unpaid immediately before the commencement of section 52 of the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021, COVID-19 Quarantine Victoria may issue payment reminder notices to the person in accordance with sections 260B and 260C as if the person became liable to pay the fees on or after that commencement.".

46Definitions

In section 255 of the Principal Act—

(a)insert the following definitions—

"contact details, in relation to a person liable to pay fees under section 257, means the following—

(a)the person's telephone number;

(b)the person's email address;

(c)the person's postal address;

first payment reminder notice means a payment reminder notice issued under section 260B;

further payment reminder notice means a payment reminder notice issued under section 260C;";

(b)for the definition of specified place of detention substitute—

"specified place of detention, in relation to a quarantined person, means the place where the quarantined person is to be detained as specified—

(a)by an authorised officer under section 200(1); or

(b)in a pandemic order under section 165AI or by an authorised officer in the exercise of a pandemic management order power under section 165B(1)(b);

(c)by an authorised officer in the exercise of a pandemic management general power under 165BA(1)(b).".

47Meaning of quarantined person

For section 256(b) of the Principal Act substitute—

"(b)who, for the purpose of eliminating or reducing the serious risk to public health posed by the COVID-19 pandemic, is detained—

(i)under section 200(1), on or after 7 December 2020, at a place specified by an authorised officer pursuant to that section; or

(ii)under section 165B(1)(b) or 165BA(1)(b) at a place specified in a pandemic order or by an authorised officer.".

48Liability to pay quarantine detention fees

After section 257(3) of the Principal Act insert—

"(4)Despite subsections (1), (2) and (3), if any other person has provided written notice to COVID-19 Quarantine Victoria stating that the person accepts liability to pay to the State the prescribed fees relating to a quarantined person's detention at a specified place of detention, that other person is liable to pay those fees.".

49COVID-19 Quarantine Victoria to invoice quarantined persons for fees relating to detention

(1)In section 258(1) of the Principal Act, before "COVID-19" insert "Subject to subsection (1A),".

(2)After section 258(1) of the Principal Act insert—

"(1A)COVID-19 Quarantine Victoria is not required to give a person an invoice—

(a)if the fees prescribed for the purposes of section 257 that the person is liable to pay are nil; or

(b)if payment of all of the fees that the person is liable to pay is waived under section 260A; or

(c)in any other prescribed circumstance.".

50New section 258A inserted

After section 258 of the Principal Act insert—

"258A   COVID-19 Quarantine Victoria may obtain contact details required

(1)COVID-19 Quarantine Victoria may request a prescribed body to provide it with the contact details of a person liable to pay fees under section 257 if COVID-19 Quarantine Victoria—

(a)requires those details to give the person an invoice under section 258; and

(b)has made reasonable attempts to obtain those details from the person directly; and

(c)despite its reasonable attempts, has not obtained those details.

(2)A prescribed body may provide COVID-19 Quarantine Victoria with the contact details requested if it is satisfied that the request has been made in accordance with subsection (1).

(3)COVID-19 Quarantine Victoria may only use or disclose a person's contact details provided under subsection (2)—

(a)to give the person an invoice under section 258; or

(b)to recover fees that the person is liable to pay under section 257; or

(c)for another purpose permitted by law.

(4)For the purposes of the Privacy and Data Protection Act 2014 and any other Act—

(a)the provision of a person's contact details under subsection (2) is taken to be a disclosure authorised by law; and

(b)the use or disclosure of a person's contact details under subsection (3) is taken to be a use or disclosure authorised by law.

(5)Subject to this section, COVID-19 Quarantine Victoria must comply with the Information Privacy Principles in respect of the use and disclosure of a person's contact details.".

51Waiver of fees

(1)For the heading to section 259 of the Principal Act substitute—

"Waiver of fees—application".

(2)In section 259(1) of the Principal Act, after "section 257" insert ", other than a person liable under section 257(4),".

52New sections 260A to 260D inserted

After section 260 of the Principal Act insert—

"260A   Waiver of fees—own initiative

(1)On its own initiative and having regard to any prescribed matters or circumstances, COVID-19 Quarantine Victoria may waive payment of all or part of the fees that a person is liable to pay under section 257.

(2)Subject to subsection (3), COVID-19 Quarantine Victoria must give notice of a waiver under subsection (1) in accordance with the regulations.

(3)COVID-19 Quarantine Victoria is not required to give notice of a waiver under subsection (1)—

(a)if it is impractical or inappropriate to do so; or

(b)in the prescribed circumstances.

(4)A notice required under subsection (2) must contain the prescribed information (if any).

260BIssue of first payment reminder notice

(1)COVID-19 Quarantine Victoria may issue a first payment reminder notice to a person who is liable to pay fees under section 257 if—

(a)an invoice has been given to the person in accordance with section 258; and

(b)the relevant date by which an amount of the fees must be paid has passed; and

(c)that amount of the fees has not been paid in full; and

(d)there are no pending waiver applications or payment plan applications relating to that amount of the fees.

(2)For the purposes of subsection (1)(b), the relevant date is—

(a)if any waiver applications or payment plan applications have been made relating to that amount of the fees, the date specified for that amount in the most recent decision of COVID-19 Quarantine Victoria on an application relating to that amount; or

(b)in any other case, the date specified in the invoice given under section 258.

(3)If COVID-19 Quarantine Victoria issues a first payment reminder notice under subsection (1), the date by which the person must pay the amount of the fees is extended to the date specified in the notice.

(4)For the purposes of subsection (3), the date specified in the first payment reminder notice must be at least 30 days after the date on which the first payment reminder notice is issued.

(5)A first payment reminder notice under subsection (1) must—

(a)be in writing; and

(b)explain the circumstances in which the person may become liable to pay the further payment reminder notice fee under section 260D; and

(c)contain the prescribed information (if any).

260CIssue of further payment reminder notice

(1)COVID-19 Quarantine Victoria may issue a further payment reminder notice to a person who is liable to pay fees under section 257 if—

(a)the relevant date by which an amount of the fees must be paid (being an amount for which a first payment reminder notice was previously issued) has passed; and

(b)that amount of the fees has not been paid in full; and

(c)there are no pending waiver applications or payment plan applications relating to that amount of the fees.

(2)For the purposes of subsection (1)(a), the relevant date is—

(a)if any waiver applications or payment plan applications have been made relating to that amount of the fees since the first payment reminder notice was issued, the date specified for that amount in the most recent decision of COVID-19 Quarantine Victoria on an application relating to that amount; or

(b)in any other case, the date specified in the first payment reminder notice.

(3)If COVID-19 Quarantine Victoria issues a further payment reminder notice under subsection (1), the date by which the person must pay the amount of the fees is extended to the date specified in the notice.

(4)For the purposes of subsection (3), the date specified in the further payment reminder notice must be at least 30 days after the date on which the further payment reminder notice is issued.

(5)A further payment reminder notice under subsection (1) must—

(a)be in writing; and

(b)explain that the person is liable to pay the further payment reminder notice fee under section 260D in respect of that notice; and

(c)contain the prescribed information (if any).

(6)COVID-19 Quarantine Victoria must not issue more than one further payment reminder notice to a person under this section.

260DFurther payment reminder notice fee

(1)A person issued with a further payment reminder notice under section 260C is liable to pay the prescribed further payment reminder notice fee in respect of that notice.

(2)The prescribed further payment reminder notice fee—

(a)must be reasonably referrable to the costs incurred by the State in recovering the unpaid amount of the fees that the person is liable to pay under section 257; and

(b)on the issue of the further payment reminder notice, is added to and taken to be a part of the fees that the person is liable to pay under section 257.".

53Payment of fees

In section 261 of the Principal Act, after "259" insert "or 260A".

54Section 264 repealed

Section 264 of the Principal Act is repealed.

Part 6—Amendment of Infringements Act 2006 and Fines Reform Act 2014

Division 1—Amendment of Infringements Act 2006

55Definitions

(1)In section 3(1) of the Infringements Act 2006, for the definition of special circumstances substitute—

"special circumstances has the meaning given by section 3A;".

(2)Section 3(3) of the Infringements Act 2006 is repealed.

56New section 3A inserted

After section 3 of the Infringements Act 2006 insert—

"3A   Meaning of special circumstances

(1)In this Act, special circumstances, in relation to a person, means—

(a)a mental or intellectual disability, disorder, disease or illness where the disability, disorder, disease or illness contributes to the person having a significantly reduced capacity to—

(i)understand that conduct constitutes an offence; or

(ii)control conduct that constitutes an offence; or

(b)a serious addiction to drugs, alcohol or a volatile substance within the meaning of section 57 of the Drugs, Poisons and Controlled Substances Act 1981 where the serious addiction contributes to the person having a significantly reduced capacity to—

(i)understand that conduct constitutes an offence; or

(ii)control conduct that constitutes an offence; or

(c)homelessness determined in accordance with the prescribed criteria (if any) where the homelessness contributes to the person having a significantly reduced capacity to control conduct that constitutes an offence; or

(d)family violence within the meaning of section 5 of the Family Violence Protection Act 2008 where the person is a victim of family violence and the family violence contributes to the person having a significantly reduced capacity to control conduct that constitutes an offence; or

(e)circumstances experienced by the person that—

(i)are long-term in nature; and

(ii)make it impracticable for the person to pay the infringement penalty and any applicable fees or otherwise deal with the infringement notice under this Act or the Fines Reform Act 2014; and

(iii)do not solely or predominantly relate to the person's financial circumstances.

(2)Nothing in subsection (1) is to be taken as limiting any power of the Court to consider the circumstances of any person in a proceeding before the Court under this Act or any other Act.".

Division 2—Amendment of Fines Reform Act 2014

57FVS application

For the note at the foot of section 10M(3) of the Fines Reform Act 2014 substitute—

"Note

See section 3A(1)(d) of the Infringements Act 2006.".

Part 7—Repeal of this Act

58Repeal of this Act

This Act is repealed on the first anniversary of the first day on which all of its provisions are in operation.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes

1   General information

See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 27 October 2021

Legislative Council: 16 November 2021

The long title for the Bill for this Act was "A Bill for an Act to amend the Public Health and Wellbeing Act 2008 in relation to the effective management of pandemics and for other purposes."