Public Health and Wellbeing Amendment (State of Emergency Extension) Act 2021 (Vic)

Public Health and Wellbeing Amendment (State of Emergency Extension) Act 2021

No. 7 of 2021

table of provisions

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of the Public Health and Wellbeing Act 2008

2ADefinitions

2BNew section 32A inserted

3Declaration of a state of emergency

3ANew sections inserted

3BRegulations

4Repeal of Part

Part 3—Repeal of this Act

5Repeal of this Act

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Endnotes

1      General information

Public Health and Wellbeing Amendment (State of Emergency Extension) Act 2021

No. 7 of 2021

[Assented to 10 March 2021]

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The main purposes of this Act are to amend the Public Health and Wellbeing Act 2008—

(a)to lengthen the total period for which a state of emergency declaration in respect of the COVID-19 pandemic may continue in force from 12 months to 21 months; and

(ab)to provide for enhanced review rights for detained persons; and

(ac)to provide for prescribed penalties to be different for adults and children; and

(b)to extend the period of operation of Part 13 to 16 December 2021.

2Commencement

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

(2)Sections 2A, 2B and 3A come into operation on 20 April 2021.

Part 2—Amendment of the Public Health and Wellbeing Act 2008

2ADefinitions

In section 3(1) of the Public Health and Wellbeing Act 2008 insert—

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

2BNew section 32A inserted

After section 32 of the Public Health and Wellbeing Act 2008 insert—

"32A   Secretary may appoint Detention Review Officers

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

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

(3)An instrument of appointment of a person as a Detention Review Officer may—

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

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

(4)The Secretary may give a general direction to a Detention Review Officer in relation to the performance of the Detention Review Officer's functions or duties or the exercise of the Detention Review Officer's powers under this Act or the regulations.

(5)An instrument of appointment under subsection (1) must be published in the Government Gazette as soon as reasonably practicable after it is made, but a failure to publish the instrument does not affect its validity.

(6)A person appointed as a Detention Review Officer is employed under Part 3 of the Public Administration Act 2004.".

3Declaration of a state of emergency

In section 198(7)(c) of the Public Health and Wellbeing Act 2008 for "12" substitute "21".

3ANew sections inserted

After section 200 of the Public Health and Wellbeing Act 2008 insert—

"200A   Information to be given to detained persons

(1)As soon as practicable after a person is made subject to detention under section 200(1)(a), the person must be provided with the following information in a form that the person is capable of understanding—

(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 or seeking a review of the decision to make the person subject to 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 under section 200B.

(2)Nothing in this section limits the requirements under this Act or any other Act in respect of information to be given to a person who is subject to detention under section 200(1)(a) including, but not limited to, the information required to be given to the person under section 200.

200BApplications may be made for review of certain decisions in relation to a person subject to detention

(1)A person who is subject to detention under section 200(1)(a) may make an application to the Secretary for a review by a Detention Review Officer of—

(a)the decision under section 200(1)(a) to make the person subject to detention including, but not limited to, in respect of the following—

(i)the reasons for the detention;

(ii)the period of the detention;

(iii)the place of the detention;

(iv)the conditions of the detention; or

(b)a decision under section 200(1)(d) that relates to the person's detention.

(2)An application under subsection (1) cannot be made in respect of a decision under section 200(6) that the continued detention of a person is reasonably necessary to eliminate or reduce a serious risk to public health.

(3)A person who is subject to detention under section 200(1)(a) and has made an application under subsection (1) may make further applications under subsection (1) in respect of that detention 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.

(4)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 (3), 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.

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

200CDetention Review Officer must decide applications

(1)This section applies if an application in respect of a decision is referred to a Detention Review Officer under section 200B(5).

(2)The Detention Review Officer must use their best endeavours to decide the application, and advise the applicant in writing of the decision and the reasons for it, within 24 hours after the application was received by the Secretary.

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

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

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

(4)The Detention Review Officer may decide—

(a)to affirm the decision under review; or

(b)to refer the application to the Chief Health Officer, accompanied by such non-binding recommendations as the Detention Review Officer considers appropriate (if any).

(5)A decision by a Detention Review Officer to affirm a decision made by an authorised officer is taken to be a decision of that authorised officer.

200DReview referred back to Chief Health Officer

(1)If a Detention Review Officer refers an application to the Chief Health Officer under section 200C(4)(b), the Chief Health Officer must use their best endeavours to decide the application, and advise the applicant in writing of the decision and the reasons for it, within 24 hours after the application is referred.

(2)The Chief Health Officer may—

(a)affirm the decision under review; or

(b)vary the decision under review; or

(c)set aside the decision under review and make a new decision in substitution for it.

200EDetention not unlawful merely because of a decision on review

If a person makes an application under section 200B(1) for review of a decision, and the detention of the person ceases because of a decision made on the review, the detention of the person is not unlawful merely because of the decision made on the review.".

3BRegulations

After section 232(2) of the Public Health and Wellbeing Act 2008 insert—

"(3)Despite anything to the contrary in Division 5 of Part 2 of the Infringements Act 2006, regulations prescribing an amount as the infringement penalty for an offence may—

(a)prescribe a lower amount of penalty for an offence committed by a person under the age of 18 years; and

(b)specify the circumstances in which the different amounts of penalty apply.".

4Repeal of Part

In section 254 of the Public Health and Wellbeing Act 2008 for "26 April 2021" substitute "16 December 2021".

Part 3—Repeal of this Act

5Repeal of this Act

This Act is repealed on 20 April 2022.

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: 3 February 2021

Legislative Council: 19 February 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 state of emergency declarations in respect of the COVID-19 pandemic and for other purposes."