Australia: Victoria's new pandemic arrangements

16 December 2021

Overnight, the changes made pursuant to the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (Vic) (Act) came to life in Victoria. The Act introduces a framework specific to pandemics in the Public Health and Wellbeing Act 2008 (Vic) (PHW Act), which replaces the current framework that has been applied to Victoria since the declaration of a State of Emergency in March 2020. We provide an update on the key aspects of the new laws below.

What are the key changes?

The Act introduces the following pandemic-specific provisions into the PHW Act:

Pandemic declaration: The Premier is able to make a ‘pandemic declaration’ 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 after considering the advice of the Chief Health Officer and the Minister for Health. A declaration can be in place for no more than four weeks initially but can be extended for three months at a time. The Premier has already made a ‘pandemic declaration’ replacing the former State of Emergency (which expired at 11:59pm on 15 December 2021) and will be in place until 11:59pm, 12 January 2022.
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 other matters like social and economic factors. We expand on these further below.
Safeguard measures: The Act introduces a number of safeguards that increase transparency and accountability in making a pandemic declaration and the power of the Minister to make pandemic orders. These include the following:
- Advice and reasoning that has informed the Premier and the Minister for Health’s decisions must be published and tabled in Parliament. In particular, within seven days of a pandemic order or any change to an order coming into effect, a copy of the Chief Health Officer's advice, the Minister's Statement of Reasons and a Statement of Charter Considerations must be released and published.
- Parliamentary oversight of any pandemic orders is provided via a joint Parliamentary investigative committee.
- An Independent Pandemic Management Advisory Committee has been established 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.
Fines and penalties: similar to the Chief Health Officer’s directions, non-compliance with pandemic orders can lead to the imposition of penalties. The maximum penalty that can be imposed is $10,904 for an individual or $54,522 for a business.

A helpful fact sheet from the Department of Health can be found here which provides some further detail on the new pandemic framework.

What are the current Pandemic Orders?

Victoria’s Pandemic orders are listed in the Pandemic Order Register. Although in a different form, the content of these largely reflect the Chief Health Officer’s directions that have been in place over the preceding months.

We have set out below a summary of the key orders that are in place in relation to workplaces and mandatory vaccinations, which can all be accessed via the Pandemic Order Register. Generally speaking, the new orders do not change the requirements that were already in force pursuant to the Chief Health Officer directions (although some changes have been made with respect to the vaccination requirements of patrons attending certain venues, such as retail).

New order	Equivalent former Chief Health Officer direction	Summary of requirements
Pandemic COVID-19 Mandatory Vaccination (General Workers) Order (No. 1)	COVID-19 Mandatory Vaccination (General Workers) Directions	This Order requires: an employer to not permit a general worker to work outside of the general worker’s ordinary place of residence unless they are fully vaccinated or exempt; an employer of a general worker to collect the general worker’s vaccination status when they work outside their ordinary place of residence; and an employer to disclose a general worker’s vaccination information to an authorised officer upon request.
Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2021 (No. 1)	COVID-19 Mandatory Vaccination (Specified Facilities) Directions	This Order requires operators of specified facilities (aged care, construction, healthcare and education) to: collect, record and hold vaccination information of workers; take reasonable steps to prevent entry of unvaccinated or partially vaccinated workers to the specified facility for the purposes of working; and notify current and new workers that the operator is obliged to collect, record and hold vaccination information about the worker and to take reasonable steps to prevent a worker who is unvaccinated or partially vaccinated from entering or remaining on the premises of a specified facility for the purposes of work.
Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1)	COVID-19 Mandatory Vaccination (Workers) Directions	This Order requires employers of specified workers (as listed in Schedule 1) to: collect, record and hold vaccination information of workers; not permit specific unvaccinated or partially vaccinated workers from working outside the worker’s ordinary place of residence; and notify current and new workers that the employer is obliged to collect, record and hold vaccination information about the worker and to not permit the worker who is unvaccinated or partially vaccinated to work outside the worker’s ordinary place of residence.
Pandemic (Open Premises) Order 2021 (No. 1)	Open Premises Directions	Operators of an open premises must (unless an exception applies): maintain a system which requires all patrons above 18 years of age to show an employee acceptable evidence that the person is fully vaccinated or an excepted person on every occasion a person attends the premises. This system must include a worker placed at each accessible entrance of the premises; take reasonable steps to exclude patrons who do not comply with the operator’s system, or are not fully vaccinated or exempt; not permit any person to work at the premises unless that person is fully vaccinated, or exempt. A partially vaccinated worker may work on the premises when no patrons are present at the time. The operator must collect, record and hold vaccination information for all workers; and not permit the number of patrons to exceed the patron limits as specified in the Order, unless an exception has been permitted under the Order.
Pandemic (Workplace) Order 2021 (No. 1)	Workplace Directions	This Order: restricts the number of Victorians attending work premises and imposes specific obligations on employers to assist in reducing the frequency of outbreaks of COVID-19 in Victorian workplaces; requires that a worker must not attend a work premises if they have been tested for COVID-19 because they are symptomatic and they are awaiting the result of that test; and requires an employer to take reasonable steps to: ensure all workers carry a face covering at all times, and wear a face covering where required to do so in accordance with any other pandemic orders in force (unless an exception applies); implement a COVIDSafe Plan which addresses health and safety issues arising from COVID-19; keep a record of all persons who attend the work premises, including the person’s name, date and time, contact number and areas of the work premises the person attended; and comply with the Victorian Government QR code system and display appropriate signage for the type of work premises as specified by this Order.

You should carefully consider how the above orders (and other orders set out in the Pandemic Order Register) affect your business operations.

Please do not hesitate to contact us if you have any queries or wish to discuss.

This article was prepared by Anthony Wood, Partner and Marco Fedeli, Senior Associate.

For more information or advice on this topic, please contact:

Steve Bell

Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne

Anthony Wood

Partner, Melbourne

Nicholas Ogilvie

Partner, Melbourne

Rohan Doyle

Partner, Melbourne

Natalie Gaspar

Partner, Melbourne

Marco Fedeli

Senior Associate, Melbourne

Related categories

Australia COVID-19