VALS strongly opposes preventative detention forming part of the COVID-19 response

VALS emphasises that any deprivation of liberty, even during a public health emergency, must not be arbitrary. The Charter of Human Rights and Responsibilities Act 2006 (Vic) states that a ‘person must not be subjected to arbitrary arrest or detention.’ Early on in the pandemic, the UN Working Group on Arbitrary Detention called ‘upon all States to respect the absolute prohibition of arbitrary deprivation of liberty as public health emergency measures are introduced to combat the pandemic.’  

At a time when it is crucial for the Victorian community to have confidence in the Government, when the focus should be on clear public health messaging and support for people to comply with directives, when the transmission rates and active COVID-19 cases have decreased significantly, the Government intends to introduce preventative administrative detention as part of its COVID-19 response. This response is not, in VALS’ view, proportionate and is certainly not the least restrictive means to achieve the intended public health outcomes. In fact, given that the legislation focuses on potential, rather than actual, non-compliance by individuals, and relies on the suspicion of authorised officers (including, under the proposed changes, those who do not have the relevant public health expertise and experience, such as police officers), it is unclear how this strategy will achieve the desired outcome at all.

Under the proposed legislative amendments under the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 there is no guidance as to the basis on which an authorised officer may subjectively form a ‘reasonable belief’ of future non-compliance, nor are there protections by way of review or oversight, either internally (such as by the Chief Health Officer) or by an independent body. There is also no guidance with regards to the length of time people may be detained.

Quotes attributable to Nerita Waight, CEO of Victorian Aboriginal Legal Service:

‘The proposed changes are another example of the Victorian Government policing the pandemic, and relying on punitive measures such as fines, rather than relying on clear public health messaging and supporting people to comply with directives.

The proposed legislation would enable individuals without the requisite public health expertise and experience to pre-emptively detain people who are suspected of being likely to refuse or fail to comply with public health directives. People could be detained because an authorised officer, such as a police officer, forms the view that they will not comply with directives in the future, not because of an actual failure to comply. The Government has not demonstrated why this legislation is necessary, and VALS is of the view that even with additional safeguards and protections, preventative detention such as that proposed in the Omnibus Bill is arbitrary and should not form part of the Government’s strategy to combat the pandemic.

The Human Rights Charter does not permit arbitrary detention, and the UN Working Group on Arbitrary Detention has reminded governments that the prohibition on arbitrary detention is absolute, even during a public health emergency such as COVID-19. 

VALS is concerned that these laws could have a disproportionate impact on the Aboriginal community, and notes the very real risk that vulnerable and marginalised groups, such as people who are homeless, who have disabilities, or who do not have the same capacity to comply with directives (for example, people experiencing family violence at home) will be discriminated against and unfairly targeted.

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Contact: Andreea Lachsz
alachsz@vals.org.au