Victoria's pandemic management framework

The Victorian Government has introduced a framework specific to pandemics in the Public Health and Wellbeing Act 2008 – Part 8A. The framework ensured Victoria could continue to effectively manage the COVID-19 pandemic from December 2021 and that it has fit-for-purpose legislation to manage future pandemics.

It is the first pandemic legislation of its kind in Australia and is specifically designed to assist in the prevention and management of public health risks posed by pandemics. The framework is built on many lessons learnt over the last two years spent managing the COVID-19 pandemic in Victoria, Australia and around the world.

The framework was introduced to keep all Victorians safe while we continue to live through the COVID-19 pandemic and during any future pandemics, so it applies to the entire Victorian community.

Purpose of the pandemic-specific framework

The State of Emergency framework under the Public Health and Wellbeing Act 2008 served Victoria well in managing the risks the COVID-19 pandemic posed to public health. It helped Victoria to avoid large-scale transmission of the virus and substantial loss of life seen in most other countries around the world.

The State of Emergency framework was designed to respond to serious but short-term events. The framework was not designed to deal with something as long-term and complex as the COVID-19 pandemic.

The Public Health and Wellbeing Act 2008 sets limits on the amount of time that Victoria can be in a State of Emergency. The time limit has been extended by Parliament multiple times over the course of the pandemic. The COVID-19 State of Emergency ended on 15 December 2021.

With all public health evidence indicating that COVID-19 will remain in our community for some time, especially with the emergence of the new variants, a pandemic-specific framework remains essential to ensure a continued legal basis for any public health measures needed to protect Victorians.

Use of State of Emergency framework in pandemics

The pandemic-specific framework will be available to be used instead of the State of Emergency framework for managing COVID-19 or any future pandemics where the Premier is satisfied on reasonable grounds that a pandemic disease, or a disease that has the potential to cause a pandemic, poses a serious risk to public health.

The State of Emergency in Victoria ended at 11.59 pm on 15 December 2021 and will not be extended to manage the COVID-19 pandemic.

Pandemic declaration

The Premier is responsible for making pandemic declarations. The Premier can only do this if satisfied on reasonable grounds that there is a serious risk to public health resulting from a disease that is or could be a pandemic disease.

If satisfied, the Premier can make a pandemic declaration after considering the advice of the Chief Health Officer and the Minister for Health.

The declaration must be in writing and explain:

1. The area where the declaration applies (all of Victoria, or one or more specified areas)
2. The disease the declaration relates to
3. The length of time the declaration operates.

A declaration can be in place for no more than four weeks initially but can be extended for three months at a time.

There is no limit on how many times a declaration can be extended. However, the Premier must revoke a pandemic declaration if satisfied on reasonable grounds that there is no longer a serious risk to public health arising from a disease that is or has potential to be a pandemic disease.

Pandemic orders

The Minister for Health can make ‘pandemic orders’ to protect public health if a pandemic declaration has been made by the Premier. These orders can be made to put in place similar health measures that have been introduced by the public health directions made by the Chief Health Officer during the State of Emergency. Before the Minister for Health can make any orders, the Minister for Health must consider the advice of the Chief Health Officer but can also consider additional advice. This means that the Minister can listen to others and look at the matters like social and economic factors, before making a pandemic order.

A pandemic order can include restrictions that are necessary to protect the community during a pandemic. Some examples may be:

• Wearing a face mask to stop transmission of a virus
• Requiring people who have COVID-19 to stay at home to avoid spreading it to others
• Limiting the amount of people who can go to a venue to avoid a ‘super-spreading’ event
• Maintaining control over who can come into Victoria during the pandemic
• Protecting vulnerable people, for example, by limiting entry to aged care facilities.

Pandemic orders under the pandemic declaration in relation to COVID-19 lapsed at 11:59pm on 12 October 2022.

Safeguards and oversight over key decisions

A key part of the pandemic-specific framework is a combination of safeguards that increase transparency and accountability in making a pandemic declaration and the power of the Minister to make pandemic orders. The safeguards require the reasoning and advice that underpin a pandemic declaration and any pandemic orders to be published, which allows Parliament and the public to scrutinise government decision-making in an informed way.

There are three key safeguards:

1. Advice and reasoning that has informed the Premier and the Minister for Health’s decisions in relation a pandemic declaration and pandemic orders must be published and tabled in Parliament.
2. Parliamentary oversight of any pandemic orders will be provided by a joint Parliamentary investigative committee that will be established after a pandemic declaration is made.
3. The Independent Pandemic Management Advisory Committee will be able to review pandemic orders and provide advice to the Minister for Health and to Parliament through the joint investigatory committee. In addition, their reports to the Minister will be tabled in Parliament.

Find out more about the oversight over pandemic orders in the ‘Safeguards and oversight’ section.

Decision-making responsibilities

Having the Minister for Health as the decision-maker during a pandemic means an elected official is making these critical decisions. This is important because they can be held accountable by Parliament and the public.

The public health measures introduced by pandemic orders can potentially be wide-ranging and affect all Victorians. The Minister for Health is better placed than the Chief Health Officer to broadly consider social, economic, and other factors relevant to how any pandemic orders may affect Victorians.

However, it is still important that decision-making prioritises public health. The advice of the Chief Health Officer remains a central part of the pandemic-specific framework and must be considered by the Minister for Health before any pandemic orders can be made.

Restrictions under the new framework

The pandemic orders in relation to COVID-19 which restricted certain activities, movement and required some individuals to be fully vaccinated ceased at 11.59pm on 12 October 2022.

It is possible further restrictions may be necessary in future, but the Premier would first need to declare a pandemic, and the Minister for Health would need to be satisfied such an order is reasonably necessary to protect public health. The Minister must also seek and consider the advice of the Chief Health Officer, and may also consider other matters including social and economic matters, before any further measures are introduced.

Restrictions under a pandemic order will only continue for as long as the Minister for Health considers they are reasonably necessary to protect public health.

Role of authorised officers

An authorised officer can be appointed by the Secretary of the Department of Health, the COVID-19 Quarantine Victoria Commissioner or a local council, to help support compliance and enforcement under the Public Health and Wellbeing Act 2008. This includes helping to ensure compliance with, and enforcement of, any pandemic orders made under the pandemic-specific framework.

Authorised officers can help manage the serious risk to public health posed by a pandemic. For example, they played an important role in keeping Victorians safe during the COVID-19 pandemic with their household engagement program where they visited diagnosed individuals to ensure they were complying with public health directions, and also made sure they were receiving any support they needed.

The pandemic-specific framework gives authorised officers pandemic management powers so that they can help to manage the serious public health risks that exist in a pandemic.

The new powers are very similar to the powers authorised officers exercised during the State of Emergency, but are subject to limitations and are intended to be easier to understand and more transparent.

Role of Victoria Police

Police officers may assist authorised officers that are helping to support compliance and enforcement under the Public Health and Wellbeing Act 2008. This includes helping to ensure compliance with, and enforcement of, pandemic orders made under the pandemic-specific framework.

Police officers may also be appointed as authorised officers.

Safeguards and oversight are important because they ensure that government decision-making can be understood and reviewed.

The pandemic-specific framework has been developed as a comprehensive and integrated package to provide confidence and transparency in decision-making. The range of transparency and accountability measures being introduced will act as a check and balance on government decision-making.

There are three key safeguards:

1. Advice and reasoning that has informed the Premier and the Minister for Health’s decisions in relation a pandemic declaration and pandemic orders must be published and tabled in Parliament
2. A joint Parliamentary investigative committee will have Parliamentary oversight of any pandemic orders
3. The Independent Pandemic Management Advisory Committee will be able to review pandemic orders and provide advice to the Minister for Health. They will also provide advice to the joint Parliamentary investigative committee on request.

Transparency in making declarations and orders

When making a pandemic declaration, the Premier will need to:

1. Report to Parliament, and therefore all Victorians, why the Premier has made a pandemic declaration.
2. Release the advice given by the Chief Health Officer and the Minister for Health that informed the decision to make a pandemic declaration.

When making a pandemic order, the Minister for Health will need to:

1. Publish a statement of reasons explaining why the pandemic order was reasonably necessary to protect public health.
2. Release the Chief Health Officer’s advice.
3. Publish an assessment of any human rights that are limited by the pandemic orders.

Pandemic Declaration Accountability and Oversight Committee

Under the framework, a joint Parliamentary investigative committee may be established, called the Pandemic Declaration Accountability and Oversight Committee. This Committee can review and make recommendations to Parliament about a pandemic order.

To further strengthen accountability and Parliamentary oversight, this Committee can recommend that a pandemic order be ‘disallowed’ (that is, stopped) under certain circumstances. They can report to Parliament and recommend disallowance if the Committee is of the view that the pandemic orders are incompatible with human rights or if they appear to have improper legal authority. This Committee can also recommend changes be made to the orders.

Due to the significant and wide-ranging impact pandemic orders can have, and because they are in place to protect the public health, two things need to happen before a pandemic order can be disallowed:

• The Pandemic Declaration Accountability and Oversight Committee must ask the Independent Pandemic Management Committee for its advice.
• If disallowance is recommended, all of Parliament needs to pass a majority vote to stop the order.
• In relation to COVID-19, the Pandemic Declaration Accountability and Oversight Committee was established in January 2022 and expired with the expiry of the pandemic declaration on 12 October 2022. More information on its hearings and recommendations can be found on the Victorian Parliament website.

Independent Pandemic Management Advisory Committee

Under the framework, an Independent Pandemic Management Advisory Committee must be established once a pandemic declaration is made, to review and provide advice and reports on the new pandemic management framework, including the pandemic orders being made by the Minister for Health. The Committee can also review any decisions made by the Premier, Minister for Health, Chief Health Officer, and any authorised officers under the new pandemic framework.

The Committee is intended to be made up of experts and leaders from across the community. With experts in relevant fields and representatives from Victoria’s diverse communities, the Committee will provide an independent and wide view on the nature and effects of pandemic orders affecting the Victorian community.

In relation to COVID-19, the Independent Pandemic Management Advisory Committee was established on 11 February 2022 and expired with the expiry of the pandemic declaration on 12 October 2022.

Non-compliance with pandemic orders

If you do not comply with a pandemic order or any other public health directions given by an authorised officer, and you do not have a reasonable excuse, you may be charged with the offence and fined. An example of this is where a person is issued an infringement notice and fined for refusing to wear a mask when required to do so.

It is important to note that the pandemic-specific framework is first and foremost a way to protect public health and wellbeing in Victoria during a pandemic. This means that enforcement action, such as fines and penalties, is only intended to be taken against people for not complying with pandemic orders or other public health directions necessary to protect public health and wellbeing.

This approach to compliance and enforcement will be outlined in the Secretary to the Department of Health’s Compliance and Enforcement Policy for the COVID-19 pandemic.

Maximum penalties

Penalties are based on the penalty unit value at the time of the breach.

Financial hardship

The pandemic-specific framework includes several elements to make pandemic-related fines fairer and more proportionate. For example, under the new concessional fines scheme, reforms to Victoria’s fines system will include a number of ways to have a fine or penalty amount reviewed, such as:

• If you have serious personal issues, disorders or difficulties, it may be possible to apply for a review of your fines under ‘special circumstances’
• Applying to have your fine reduced because of financial hardship.

These reforms will not be implemented across all departments immediately. It is expected that some time will be required to allow the 120 Victorian enforcement agencies which issue infringement fines and the Director, Fines Victoria to make the necessary changes to operational processes, including IT changes and updates to policies, procedures and website content.

Concessional fines related to COVID-19 commenced in mid-2022, and offered reduced fine amounts due to a variety of hardship factors.

Where an individual is not eligible for the scheme, a person with an outstanding COVID-19 fine who has been unable to pay should contact Fines Victoria by visiting the Fines Victoria website, or calling Fines Victoria on (03) 9200 8111 as soon as possible to discuss the options available to manage their fine.

This could include seeking an extension of time to pay or enrolling in a manageable payment plan. There may also be other non-financial mechanisms which will be available to the person, depending on their circumstances.

A person cannot be sentenced to a term of imprisonment for breaching a pandemic order.

COVID-19 Compliance and Enforcement Policy

The COVID-19 Compliance and Enforcement Policy was published by the Secretary, Department of Health to support authorised persons promoting compliance with, and enforcement of, the Public Health and Wellbeing Act 2008 (the Act) in relation to the COVID-19 pandemic. This policy was required under section 231A of the Act and is an accountability measure delivered as part of the pandemic management framework.

The policy outlined how persons involved in compliance and enforcement functions in relation to the COVID-19 pandemic consider the impacts of the performance of those functions on vulnerable persons and communities. It applied to anyone exercising compliance and enforcement powers relating to the COVID-19 pandemic declaration under the Act, including Authorised Officers and members of Victoria Police assisting them.

Pandemic detention refers to quarantine that is necessary to reduce the risk of the spread of a pandemic disease. For COVID-19, this means in hotels or other facility-based quarantine arrangements for some overseas travellers coming into Victoria.

Pandemic detention will only be required where it is reasonably necessary to protect public health, and has been especially important to protect those most vulnerable in our community, such as the elderly and those with compromised immune systems.

It is important to note that a detention order is not a punishment. It does not mean that a person is to be arrested or sent to jail. Detention means a person may be detained where reasonably necessary to eliminate or reduce a serious risk to public health – at the moment, this is being done by requiring people to spend time in hotel or other facility-based quarantine.

Rights in pandemic detention

If you are required to go into pandemic detention in a government quarantine facility, such as a hotel, your rights include:

• Being given a detention notice explaining why you are being detained, the terms of your detention, any exemptions available, your rights and entitlements, and a warning that refusing or failing to comply with a detention notice is an offence.
• Your pandemic detention will be reviewed by an authorised officer at least once every 24 hours, unless that is not reasonably practical.
• You may ask for your detention to be reviewed by a Detention Appeals Officer, which may lead to confirmation of your detention, changes to the conditions of your detention, or your release.
• You may make a complaint to the Victorian Ombudsman. The process for this will be outlined in your detention notice.
• You may also make a complaint to the Secretary of the Department of Health or seek review in a court.

Detention period

The length of your time in quarantine may depend on several factors such as the public health risk, whether you have been diagnosed with a communicable disease and your vaccination status. You will not be held in detention indefinitely. Pandemic detention will not be longer than reasonably necessary to eliminate or reduce a serious risk to public health.

Reviewing detention

If you are detained, you can request that your situation be reviewed by a Detention Appeals Officer (DAO). The DAO is an independent officer, separate from the government, that will review your detention and decide whether to confirm your detention, whether the terms of your detention should change or whether you should be released. The Secretary to the Department of Health has appointed a registrar who will receive these applications and support the DAO so that they have the information they need to make review your detention.

If you apply, the DAO will consider your application and provide a written response which outlines the reasons for their decision and the review rights available to you. The Chief Health Officer must be consulted if the DAO is considering a change to, or release from, detention so that public health expertise remains central to the DAO’s decision-making.

Detention locations

For COVID-19, people have been required to stay in hotels or other quarantine facilities managed by the Victorian Government. These facilities are maintained to provide comfortable accommodation to keep people safe in accordance public health advice.

The Minister for Health is also going to make and publish detention guidelines and standards that will apply to the welfare of people in pandemic detention.

Pandemic detention and the Charter of Human Rights and Responsibilities and International Human Rights law

Pandemic detention can be lawful and consistent with the Victorian Charter of Human Rights and Responsibilities and International Human Rights Law if the detention is justified, proportionate and necessary to protect public health.

In a pandemic, in accordance with the Public Health and Wellbeing Act 2008, detention is only possible when it is reasonably necessary to eliminate or reduce a serious risk to public health. Detention has been particularly important to protect the vulnerable people in our community such as the elderly and those with compromised immune systems.

Additionally, there are safeguards in the new framework that ensure that pandemic detention will only be required for as long as it is reasonably necessary to protect public health – for example, a person’s detention can be reviewed by independent Detention Appeals Officers. Specific standards and guidelines will be published to outline these measures.

Quarantine costs

The following maximum fees were charged in relation to people who were in hotel or other facility-based quarantine during the COVID-19 pandemic declaration:

• $3,000 for 1 adult
• $1,000 for each additional adult in the same room or apartment
• $500 for each child between 3–18 years.

No fee was charged for children under 3 years.

The pandemic-specific framework includes more stringent restrictions on the use and disclosure of any information you provide to assist with the pandemic response. This information may include QR code check-in records or answers provided to assist with contact tracing.

Contact tracing information can only be used or disclosed if there is a public health purpose or:

• You give consent for your information to be used or disclosed
• In the performing functions or exercising powers under the new pandemic framework
• To address an immediate risk to someone’s life, safety, health or wellbeing
• To undertake enforcement action against you for providing false or misleading information under the Act or against a person who has used or disclosed the information where not permitted to do so.

Victoria Police will not have access to this information unless they are required to take any of the actions outlined above.