Professor Felicity Gerry QC, Victorian Bar | Raphael de Vietri, Victorian Bar
Bourke’s Criminal Law News Victoria Newsletter, April 2020
This Quick Reference Guide is from Bourke’s Criminal Law News Victoria Newsletter and covers some of the fast-moving developments in federal and Victorian state criminal law that have occurred during March and April during the COVID-19 pandemic.
The rule of law is fundamental to a civilised society. It is even more important during times of widespread uncertainty or panic. By providing this resource, the authors hope to assist criminal lawyers in Victoria to keep check on the fair, reasoned, and just application of emergency powers.
These powers provide governmental agencies with the special authority they need to maintain public safety in extraordinary times. However, some of these legal powers — which are by their very definition “extraordinary” — have been introduced without publicly available prosecutorial or police guidance so it is not yet known how they will be used.
If these powers are disproportionate or mis-used they have the potential to erode public confidence, over-criminalise the public and diminish democratic freedoms which are otherwise taken for granted. It is especially important in times of emergency that government and law enforcement authorities remain conscious of their legal limits. This is so that persons in Australia are left to be as free as possible whilst still allowing the government to perform its important functions of maintenance of public health and public order.
This Quick Reference Guide is a great starting point for criminal lawyers in Victoria who are seeking further information about the scope and nature of federal and state government powers during times of public emergency and potential disorder.
Within this Guide you’ll find
- an in-depth analysis of the applicable criminal law
- some guidance on relevant human rights principles to help lawyers consider the proportionality of government responses
- details of the Victorian state and federal public order and law enforcement powers that may be used (or have been used already) in Victoria in response to the global viral pandemic.
Similar laws apply in other States and Territories but there are some differences that apply on the state level.
Each legislative instrument which is covered within the Guide is hyperlinked and briefly summarised. Within each summary some (but not all) of the relevant coercive powers and criminal offences are identified.
We extend our humble thanks to the authors for their vision and guidance in compiling this very detailed and insightful guide.
Since this article was published, temporary laws were introduced into Victorian State Parliament to allow Judge-only trials in Victoria during the coronavirus crisis, if both the defendant and prosecution agree.