Report to Parliament on the extension of a pandemic declaration - Report under section 165AG of the Public Health and Wellbeing Act 2008
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Report to Parliament on the
extension of a pandemic
declaration
Report under section 165AG of the Public Health
and Wellbeing Act 2008
OFFICIAL
Contents
Purpose of the report ................................................................................................................3
Provisions under the Public Health and Wellbeing Act 2008 ....................................................4
Initial pandemic declaration made by the Premier ................................................................4
Extension to the pandemic declaration made by the Premier ...............................................4
Statement of reasons for the extension of the pandemic declaration .......................................5
COVID-19 is a pandemic disease .........................................................................................5
A serious risk to public health arises from COVID-19 ...........................................................6
Attachments to this report
Attachment A – Copy of signed extension of the pandemic declaration by the Premier, dated
9 January 2022
Attachment B – Copy of the advice of the Acting Chief Health Officer, dated 7 January 2022
Attachment C – Copy of the advice of the Minister for Health, dated 7 January 2022
Attachment D – Pandemic orders made, public health risk powers and pandemic management
powers exercised
Report to Parliament on the extension of a pandemic declaration 2
OFFICIALPurpose of the report
This report is provided to Parliament pursuant to section 165AG of the Public Health and
Wellbeing Act 2008 (PHW Act), following the extension of the pandemic declaration by the
Premier under section 165AE of the PHW Act until 11:59:00pm on 12 April 2022 in relation to
the Novel Coronavirus 2019 (SARS-CoV-2), the virus which causes the coronavirus disease
(COVID-19).
As required under section 165AG of the PHW Act, this report contains a statement of reasons
for the extension of the pandemic declaration and a copy of the advice of the Minister for
Health, Martin Foley MP, and the Acting Chief Health Officer, Professor Benjamin Cowie, in
respect of the extension of the pandemic declaration. This report also includes a summary of
the pandemic orders made, the public health risk powers and the pandemic management
powers exercised and the reasons for the exercise of those powers during the period beginning
when the pandemic declaration first came into force and ending when the extension came into
force.
The extension of the pandemic declaration for the State of Victoria has been informed by
consultation with, and advice received from, both the Minister for Health and the Acting Chief
Health Officer.
Report to Parliament on the extension of a pandemic declaration 3
OFFICIALProvisions under the Public Health and Wellbeing Act
2008
Under section 165AB of the PHW Act, the Premier may make a pandemic declaration if the
Premier is satisfied on reasonable grounds that there is a serious risk to public health arising
from a pandemic disease or a disease of pandemic potential.
Under section 165AC of the PHW Act, the period for which an initial pandemic declaration
continues in force cannot exceed four weeks. Under section 165AE of the PHW Act, the
Premier may extend a declaration if satisfied that there continues to be a serious risk to public
health arising from the pandemic disease or disease of pandemic potential. There is no limit on
the number of times a pandemic declaration may be extended, but the period of each extension
must not be longer than 3 months.
The Premier must consult with, and consider the advice of, the Minister for Health and the Chief
Health Officer before making or extending a pandemic declaration.
Under section 165CH of the PHW Act, if a pandemic declaration is made in respect of the same
infectious disease as the subject of an existing State of Emergency declaration, the declaration
of the State of Emergency ceases to be in force in respect of so much of each emergency area
that is, or is within, a pandemic management area.
Initial pandemic declaration made by the Premier
Based on the advice of, and in consultation with, the Minister for Health and the Chief Health
Officer, in response to the serious risk to public health presented by COVID-19, the Premier
made a pandemic declaration on 10 December 2021.
The declaration:
• Commenced from 11:59:00pm on 15 December 2021 until 11:59:00pm on 12 January
2022.
• Was made in respect of the coronavirus disease of 2019 (COVID-19), caused by the
virus identified as severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).
• Was in force throughout the State of Victoria.
Extension to the pandemic declaration made by the Premier
Based on the advice of, and in consultation with, the Minister for Health and the
Acting Chief Health Officer, in response to the serious risk to public health presented by
COVID-19, the Premier extended the pandemic declaration until 11:59:00pm on 12 April 2022.
The extension of the declaration:
• Commences from 11:59:00pm on 12 January 2022 until 11:59:00pm on 12 April 2022.
• Is made in respect of the coronavirus disease of 2019 (COVID-19), caused by the virus
identified as severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).
• Is in force throughout the State of Victoria.
The signed instrument extending the pandemic declaration is at Attachment A. A copy of the
advice of the Acting Chief Health Officer supporting the extension of this declaration is at
Report to Parliament on the extension of a pandemic declaration 4
OFFICIALAttachment B, dated 7 January 2022. A copy of the advice of the Minister for Health
supporting the extension of this declaration is at Attachment C, dated 7 January 2022.
Statement of reasons for the extension of the pandemic
declaration
In deciding to extend the pandemic declaration, the Premier has consulted with, and
considered the advice of, both the Minister for Health and the Acting Chief Health Officer.
As required by 165AG(1)(a) of the PHW Act, a statement of reasons for the extension of the
pandemic declaration must be provided. This aims to promote additional transparency and
accountability of government and provide a clear explanation for the decision to allow powers to
be exercised under Part 8A of the PHW Act.
An extension of the pandemic declaration is required to authorise the use of powers to manage
pandemics through the making and enforcement of pandemic orders and the use of pandemic
management powers across Victoria. This will remain necessary while there remains a serious
risk to public health arising from COVID-19.
After consulting with and considering the advice of both the Minister for Health and the Acting
Chief Health Officer, the Premier was satisfied on reasonable grounds that there continues to
be a serious risk to public health arising from the pandemic disease, COVID-19. In reaching
this conclusion the Premier notes that “serious risk to public health” is defined in section 3 of
the PHW Act as a material risk that substantial injury or prejudice to the health of human beings
has occurred or may occur, having regard to:
• the number of persons likely to be affected
• the location, immediacy, and seriousness of the threat to the health of persons
• the nature, scale and effects of the harm, illness or injury that may develop
• the availability and effectiveness of any precaution, safeguard, treatment, or other
measure to eliminate or reduce the risk to the health of human beings.
In making this decision, the Premier took into account the matters set out below.
COVID-19 is a pandemic disease
Based on the advice of the Minister for Health and Acting Chief Health Officer, the Premier was
satisfied that COVID-19 is a pandemic disease.
Section 3(5) of the PHW Act provides that “an infectious disease is a pandemic disease at a
particular time if, at that time, there is a pandemic outbreak of that infectious disease”. An
“infectious disease” is defined in section 3(1) and includes a human illness or condition due to a
specific infectious agent or its toxic products that arises through transmission of that agent or its
products from an infected person, animal or reservoir to a susceptible person, either directly or
indirectly through an intermediate plant or animal host, vector or the inanimate environment.
SARS-CoV-2 is the virus that causes COVID-19. The virus first appeared in Wuhan, China, in
December 2019. The World Health Organisation (WHO) declared the outbreak a Public Health
Emergency of International Concern on 30 January 2020 and a pandemic on 11 March 2020.
The WHO has yet to declare an end to the global pandemic.
Report to Parliament on the extension of a pandemic declaration 5
OFFICIALAs outlined by the Chief Health Officer in his advice to the Premier on 8 December 2021,
SARS-CoV-2 is a highly transmissible virus, primarily transmitted from person to person
through respiratory droplets and aerosols carrying infectious viral particles that are inhaled or
come into contact with susceptible hosts.
Since tracking commenced on 30 December 2020, the WHO Coronavirus dashboard had
recorded 293,750,692 cases with 5,454,131 deaths as at 5 January 2022. 1
Transmission of the disease across continents is sufficiently widespread to constitute a
pandemic, noting that according to the WHO Coronavirus data table, only seven countries
worldwide have not officially recorded a case of COVID-19 since the pandemic began. 2
The virus can mutate into more transmissible, virulent and difficult to control variants. An
example of this is the Delta variant of concern (B.1.617.2). The Delta variant of concern was
first detected in India in October 2020. 3 A further variant of concern – designated as Omicron
by the WHO on 26 November 2021 – was first detected in southern African countries in
November 2021. 4 The Acting Chief Health Officer noted that the Omicron variant of concern
has become the dominant strain in Victoria – genomic sequencing results showing that the
Omicron variant went from less than 5 per cent of sequenced samples in early December 2021
to over 75 per cent of sequenced samples by late December 2021. 5
A serious risk to public health continues to arise from COVID-19
Based on the advice of the Acting Chief Health Officer and Minister for Health, the Premier was
satisfied that there continues to be a “serious risk to public health” arising from COVID-19. In
particular, the Premier was satisfied that COVID-19 continues to give rise to a “material risk that
substantial injury or prejudice to the health of human beings has occurred or may occur”,
having regard to:
• the number of persons likely to be affected
• the location, immediacy, and seriousness of the threat to the health of persons
• the nature, scale and effects of the harm, illness or injury that may develop
• the availability and effectiveness of any precaution, safeguard, treatment, or other
measure to eliminate or reduce the risk to the health of human beings.
1
WHO, WHO Coronavirus (COVID-19) Dashboard, , accessed 6 January
2022.
2
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 16(c).
3
WHO, Tracking SARS-CoV-2 variants, 2021, , accessed 7 January 2022.
4
WHO, Classification of Omicron (B.1.1.529): SARS-CoV-2 Variant of Concern, 2021,
, accessed 7 January 2022.
5
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 17(f).
Report to Parliament on the extension of a pandemic declaration 6
OFFICIALThe number of persons likely to be affected
Based on the advice of the Acting Chief Health Officer and Minister for Health, the Premier was
satisfied that the Victorian population is potentially vulnerable to infection with COVID-19.
Additionally, international experience demonstrates that uncontained outbreaks of the disease
can overwhelm hospital systems to the point of making healthcare inaccessible to those
seeking treatment for reasons unrelated to COVID-19. Widespread infection will potentially
saturate the Victorian health system and result in poorer health outcomes for patients, both
COVID-19 and non-COVID-19 related, without ongoing and responsive public health
measures. 6
The Acting Chief Health Officer considered that COVID-19 continues to be a serious risk to
public health throughout Victoria, highlighting the following:
• The high transmissibility and rapid spread of the Omicron variant of concern, leading to
significant case numbers. The Omicron variant of concern is estimated to account for
over 75 per cent of newly diagnosed cases. 7
• Continuing increases in hospitalisation and intensive care unit (ICU) admissions, with no
indication that Victoria has peaked for either metric, 8 as well as the potential for an
overwhelmed pathology system. 9
• The potential for significant negative impacts on essential services and supply chains
resulting from workforce furlough, with potential negative impacts on Victorians’ ability to
access essential goods and services. 10
• The low proportion of Victorians who have received third dose vaccinations, noting the
evidence of substantially reduced vaccine effectiveness of two doses of either
AstraZeneca or Pfizer vaccination against the Omicron variant. 11
As at 5 January 2022, there had been 230,919 confirmed cases in Victoria, 10,305
hospitalisations and 1,553 deaths. 12 Based on current test positivity rates, it is likely that current
6
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 41.
7
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 5(a).
8
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraphs 5(b).
9
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 5(c).
10
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 5(d).
11
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 5(e).
12
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 16(a).
Report to Parliament on the extension of a pandemic declaration 7
OFFICIALdata dramatically underestimates the number of Victorians who have become infected on any
given day. 13
COVID-19 poses a significant risk to public health because a high rate of hospitalisations from
unconstrained transmission of COVID-19 would have the effect of denying treatment to people
with other conditions requiring medical care, as has occurred in other countries where hospital
systems have been overwhelmed. In weighing the number of people likely to be affected,
consideration was given not only to the number of people likely to contract COVID-19, but to
the fact that the pandemic creates a material risk of prejudicing the health of Victorians who do
not have COVID-19 but who require medical care for other reasons and may be denied this
care if the healthcare system is significantly burdened. 14
In considering the number of people likely to be affected by the risk, the Premier has
considered whether high vaccination rates are likely to have diminished the seriousness of the
risk in the current settings. The Premier considered that COVID-19, particularly with the
Omicron variant of concern, continues to pose public health risks for the broader community,
with other jurisdictions having to reintroduce or expand public health and social measures to
protect the community. 15
The location, immediacy, and seriousness of the threat to the health of persons
Based on the advice of the Acting Chief Health Officer and Minister for Health, the Premier was
satisfied that the threat to the health of persons likely to be affected is immediate and serious.
The Premier was also satisfied that the threat existed to persons throughout Victoria.
COVID-19 is circulating in the Victorian community and accordingly the threat is immediate. As
at 5 January 2022, the seven-day case average was 9,351 and there were 591 cases in
hospital, representing an estimated 29.9 per cent of currently available ward beds state-wide
for COVID-19 patients. 16 Based on current test positivity rates, it is likely that current data
dramatically underestimates the number of Victorians who have become infected on any given
day. 17 This is largely attributable to the introduction of the Omicron variant of concern into the
community, reflecting the increase in its growth advantage compared with the Delta strain. 18
13
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 16(b).
14
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 41.
15
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 6.
16
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 27.
17
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 16(b).
18
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 29.
Report to Parliament on the extension of a pandemic declaration 8
OFFICIALWhen considering the location of the threat, consideration has been given to the capacities of
regional Victoria’s COVID-19 response where healthcare resources are limited compared to
metropolitan areas. Uncontained outbreaks in regional Victoria could therefore create very
serious threats to health more easily than in metropolitan areas.
The threat posed by COVID-19 transmission to Victorians and Victoria’s healthcare system is,
in the view of the Acting Chief Health Officer, serious and ongoing. 19 Although Victoria has
increased its hospital capacity to respond to the pandemic, there is a finite ceiling to which
hospital bed capacity can be increased, and hospital care is only a partial defence against the
risk of serious illness or death. 20 The Acting Chief Health Officer advised that the available
therapeutic interventions for COVID-19, including antivirals, steroids and supportive care, are
only partially effective in reducing mortality and decreasing hospital stays. 21
The nature, scale and effects of the harm, illness or injury that may develop
Based on the advice of the Acting Chief Health Officer and Minister for Health, the Premier was
satisfied that the nature, scale and effects of the harm posed by COVID-19 across Victoria are
sufficiently grave and significant to merit a designation as a serious public health risk.
COVID-19 displays a spectrum of clinical outcomes, from asymptomatic or mild illness to
serious illness and, in some cases, death. 22
High rates of uncontrolled transmission of COVID-19 not only impact the individuals who are
diagnosed but have significant onward implications for their household and social, workplace
and education facility contacts. The Acting Chief Health Officer advised that on 5 January 2022,
there were 8,157 close contacts reported in Victoria 23 and, as has been noted earlier, it is likely
that current data dramatically underestimates the number of Victorians who have become
infected (and their close contacts) on any given day. Further, individuals involved in an
outbreak will also be impacted due to the higher risk of transmission which necessitates
additional public health measures.
The high transmissibility and risk of death posed by COVID-19 distinguishes it from other
illnesses which commonly circulate in the community and warrant a more stringent response.
Modelling on the impact of Omicron shows that, due to the very large increase in cases, in
many of the plausible scenarios hospitalisations, intensive care unit admissions and mortality
substantially exceed rates seen previously throughout the pandemic and present a real
19
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 35.
20
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraphs 40-41.
21
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 41.
22
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 25.
23
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 32.
Report to Parliament on the extension of a pandemic declaration 9
OFFICIALchallenge to the COVID-19 response and health system capacity, even accounting for a
reduced severity. 24
Evidence is still to be finalised in relation to the rates of fatalities, serious illness (including ‘long
COVID’) and hospitalisation for people infected with Omicron in Victoria. 25
The availability and effectiveness of any precaution, safeguard, treatment, or other
measure to eliminate or reduce the risk to the health of human beings
Based on the advice of the Acting Chief Health Officer and Minister for Health, the Premier
considered the availability and effectiveness of precautions, safeguards, treatments, and other
measures to eliminate or reduce the risk to the health of human beings.
The Premier was satisfied that current vaccination rates alone will not suffice to contain
transmission within health system capacity, and available treatments are only partially effective
in reducing mortality and decreasing hospital stays. 26
Vaccination is a crucial tool to manage the risk posed by COVID-19 and remains the best way
to develop immunity and prevent COVID-19 disease. 27 While vaccinated people may still
contract the virus, available Victorian and NSW surveillance data for the second half of
2021demonstrate that a significantly greater proportion of cases, hospitalisations, ICU
admissions and deaths were recorded in those who had not been fully vaccinated compared to
those who had been fully vaccinated. 28 Thus, vaccination serves a dual purpose in responding
to the pandemic: it protects individuals from the harm of severe disease and death, and
protects the community by slowing the spread of the virus to others.
However, vaccination alone will not suffice to contain transmission within health system
capacity – particularly with the Omicron variant of concern – and public health measures are
needed to manage the risks associated with the current rapid spread in the Victorian
community and to reduce the risk of excess deaths and other harms to the health and wellbeing
of Victorians. 29
Vaccines alone are insufficient because:
24
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 36.
25
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 25.
26
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 41.
27
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 55.
28
Ibid.
29
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 6.
Report to Parliament on the extension of a pandemic declaration 10
OFFICIAL• Current evidence suggests waning immunity and protection against transmission in all
COVID-19 vaccines in the months following the second dose, although protection against
severe disease has been shown to remain high. 30
• There is a risk that strains of the SARS‑CoV‑2 virus, such as the Omicron variant of
concern, may be associated with higher transmissibility, immune escape and an increased
risk of reinfection, due to the large number of mutations in these variants of concern. 31
There are limited therapeutic interventions to manage COVID-19, and otherwise treatment of
COVID-19 remains largely supportive care. The available therapeutic interventions of antivirals,
monoclonal antibody therapies and steroids are all of proven benefit but are only partially
effective in reducing mortality and decreasing hospital stays. 32
Other countries with high vaccination rates (including third doses) have endured surging cases,
coinciding with the emerging dominance of the Omicron variant of concern. 33 The Acting Chief
Health Officer highlighted the experience of several countries which have introduced public
health and social measures in response to the Omicron variant of concern, even with high
vaccination levels in the population (for example, face masks in public settings, limits on
gatherings and venue caps). 34
Modelling referred to by the Acting Chief Health Officer suggests that a suite of public health
measures may be more effective in reducing Omicron transmission. 35 Complementary
measures such as mask wearing, density limits, accelerated booster vaccine dosing and testing
together will reduce overall case transmission, hospitalisation and death. 36 The observed and
projected trends in new case detections, hospitalisations and deaths will present significant
challenges for the Victorian health system, which will exceed levels of capacity and operations
experienced to date. 37
30
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 56.
31
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 17(d).
32
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 41.
33
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 19.
34
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
table one to paragraph 23.
35
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 37.
36
Ibid
37
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 39.
Report to Parliament on the extension of a pandemic declaration 11
OFFICIALGuiding principles informing the decision to extend a pandemic declaration
In determining that there continues to be a serious risk to public health arising from COVID-19,
the Premier had regard to the following guiding principles outlined at sections 5 – 10 of the
PHW Act.
Evidence-based decision-making
In making and extending the pandemic declaration, the Premier had regard to the principle of
evidence-based decision-making (as required under section 5 of the PHW Act).
The advice of the Acting Chief Health Officer is that evidence supports the view that the most
effective and efficient response to the COVID-19 pandemic requires ongoing use of public
health and social measures, particularly in responding to the Omicron variant of concern. 38 The
Premier’s decision to extend the pandemic declaration therefore advances the principle of
evidence-based decision-making by empowering the Minister for Health to use measures under
Part 8A of the PHW Act to manage the COVID-19 pandemic using public health and social
measures as a complement to vaccination and disease treatment, in line with available
evidence about the most effective measures to protect public health and wellbeing.
Precautionary principle
As outlined above, based on the advice of the Acting Chief Health Officer 39 and Minister for
Health, 40 the Premier was satisfied that there continues to be a serious risk to public health
arising from COVID-19. The Acting Chief Health Officer noted that it is important Victoria
retains the capacity to rapidly introduce measures that enable testing, public health and clinical
management of widespread community transmission of the Omicron variant of concern. 41
Consideration has been given to this uncertainty but, consistent with the precautionary principle
at section 6 of the PHW Act, a lack of full scientific certainty should not be used as a reason to
prevent or control the public health risk, given the COVID-19 pandemic constitutes a serious
threat to public health and wellbeing.
Principle of primacy of prevention
The Premier had regard to the principle of primacy of prevention set out in section 7 of the
PHW Act. The Premier received advice from the Minister for Health that the enlivening of
powers under Part 8A of the PHW Act was necessary for him to reduce the serious risk to
38
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraphs 51- 52.
39
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 61.
40
Minister for Health advice to the Premier – Advice relating to the extension of a pandemic declaration –
Section 165AE Public Health and Wellbeing Act 2008, 7 January 2022, paragraph 2.
41
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 52.
Report to Parliament on the extension of a pandemic declaration 12
OFFICIALpublic health arising from COVID-19 42 and that the response to COVID-19 would be less
effective without these powers. 43
The advice of the Minister for Health was supported by the advice of the Acting Chief Health
Officer, who was guided by the overarching principle of prevention of disease, illness, injury,
disability or premature death, consistent with the objectives of the Act. In considering the totality
of evidence in pursuit of this aim, the Acting Chief Health Officer concluded that his advice to
the Premier was to extend the pandemic declaration in order to make available the relevant
powers necessary to increase the prospects of limiting the transmission of COVID-19 in Victoria
and continue to minimise, as much as possible, the serious risk to public health. 44
Principle of accountability
The Premier had regard to the principle of accountability in section 8 of the PHW Act. He had
regard to the requirement to table this report under section 165AG including a statement of
reasons for extending the pandemic declaration and a copy of the advice of both the Minister
for Health and the Acting Chief Health Officer with respect to extending the pandemic
declaration. The Premier was satisfied that tabling these documents in Parliament ensures his
decision is transparent, systematic and appropriate and provides members of the public access
to reliable information to facilitate a good understanding of the relevant public health issues and
the opportunity to participate in policy and program development.
Principle of proportionality
As outlined in this report, based on the advice of the Acting Chief Health Officer 45 and Minister
for Health, 46 the Premier was satisfied that COVID-19 continues to pose a serious risk to public
health. The Premier had regard to the principle of proportionality in section 9 of the PHW Act
and was satisfied that his decision to declare a pandemic and to extend the declaration was a
proportionate response to prevent, minimise and control the public health risk that COVID-19
presents. Based on the advice of the Acting Chief Health Officer 47 and Minister for Health, 48 the
Premier was satisfied that extending the pandemic declaration was not arbitrary.
42
Minister for Health advice to the Premier - Advice relating to the extension of a pandemic declaration –
Section 165AE Public Health and Wellbeing Act 2008, 7 January 2022, paragraph 4.
43
Minister for Health advice to the Premier - Advice relating to the extension of a pandemic declaration –
Section 165AE Public Health and Wellbeing Act 2008, 7 January 2022, paragraph 5.
44
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 63.
45
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraphs 24-63.
46
Minister for Health advice to the Premier - Advice relating to the extension of a pandemic declaration –
Section 165AE Public Health and Wellbeing Act 2008, 6 January 2022, paragraphs 2-5, 8.
47
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraphs 62-63.
48
Minister for Health advice to the Premier - Advice relating to the extension of a pandemic declaration –
Section 165AE Public Health and Wellbeing Act 2008, 7 January 2022, paragraphs 2-5, 7 and 8.
Report to Parliament on the extension of a pandemic declaration 13
OFFICIALPrinciple of collaboration
The Premier had regard to the principle of collaboration in section 10 of the PHW Act.
The Premier has collaborated at a national level through the National Cabinet in informing the
most appropriate Victorian response to the COVID-19 pandemic and furthering understanding
of the consequences of the COVID-19 pandemic
The advice of the Acting Chief Health Officer has similarly been informed by collaboration with
the Australian Health Protection Principal Committee. 49
Charter of Human Rights and Responsibilities
A pandemic declaration, or an extension of it, does not itself directly affect the human rights of
any person (either positively or negatively).
Although the making or extension of a pandemic declaration does not itself directly affect the
human rights of any person, it is a necessary step in continuing to make certain powers under
the PHW Act available. Those powers include:
a. the power of the Minister for Health to make a pandemic order (section 165AI);
b. the power of authorised officers to exercise pandemic management order powers
(section 165B);
c. the power of authorised officers to exercise pandemic management general powers
(section 165BA);
d. the power of authorised officers to exercise public health risk powers (section 190).
These powers form part of a framework that is designed to protect public health and wellbeing
in Victoria in the context of pandemics (section 165A(1)).
Noting that the most immediate potential consequence of the making or extension of a
pandemic declaration is that the Minister for Health will be empowered to make or extend
pandemic orders, the Premier recognised that the future exercise of that power may affect and
limit human rights. The powers of authorised officers may also have that effect, but that can
only occur if the Chief Health Officer authorises authorised officers to exercise those powers. A
further step is therefore necessary for that to occur. Further, the Minister’s power is also the
power that potentially has the most far-reaching consequences for human rights, because a
pandemic order may to apply to “all persons” (section 165AK(1)(a)). In contrast, the powers of
authorised officers are more limited (see for example section 165BA(4)).
The Premier gave consideration to how the Minister’s powers to make or extend pandemic
orders might be exercised, having regard to the examples in section 165AI(2), and how that
exercise may affect and limit the following human rights: equality (section 8); protection from
medical treatment without full, free and informed consent (section 10(c)); freedom of movement
(section 12); rights to privacy, family and home (section 13(a)); freedom of thought, conscience,
religion and belief (section 14); freedom of expression (section 15); peaceful assembly and
freedom of association (section 16); protection of families and children (section 17); cultural
rights (section 19); property rights (section 20); right to liberty and security of person (section
49
Acting Chief Health Officer advice to Premier – Advice relating to the extension of a Pandemic
Declaration as required by section 165AE of the Public Health and Wellbeing Act 2008, 7 January 2022,
paragraph 14(f).
Report to Parliament on the extension of a pandemic declaration 14
OFFICIAL21); right to humane treatment when deprived of liberty (section 22 (1)); self-incrimination
(section 25(2)(k)).
However, the Premier recognised that, ultimately, whether any exercise of the Minister’s power
will affect and limit human rights — and, if so, how — will depend on how the powers are
exercised by the Minister and the circumstances in which they are exercised.
The Premier recognised that the Minister for Health is a public authority. The PHW Act
recognises that a public authority must give proper consideration of human rights protected by
the Charter when making decisions and must act compatibly with human rights (section
165A(2)(c)). Following the making of a pandemic order, the Minister must ensure that a
document, which addresses whether the order limits human rights, and if so, addresses the
matters set out in section 7(2) of the Charter, is published online (section 165AP(2)(c)-(d)).
The Premier also recognised that the Minister’s power to make a pandemic order is expressly
limited by a “reasonably necessary” criterion, which itself requires a “proportionality”
assessment to be undertaken by the Minister.
Ultimately, the Premier recognised that whether the requirements of the Charter are satisfied in
relation to any individual exercise of the Minister’s power will depend on how the power is
exercised and the circumstances in which the power is exercised.
Conclusion to the statement of reasons
Having considered the advice of the Minister for Health and the Acting Chief Health Officer, the
Premier was satisfied on reasonable grounds that there continues to be a serious risk to public
health arising from COVID-19 throughout Victoria.
In reaching this conclusion, the Premier considered that COVID-19 is a pandemic disease that
is highly transmissible; causes serious illness and death; and unconstrained outbreaks of this
disease across the world have outpaced hospital capacities to a scale not witnessed in modern
memory. An outbreak beyond the limits of Victoria’s healthcare system would be catastrophic,
and imperil the health of all Victorians who require medical care, whether for COVID-19 or for
other reasons.
The Premier considered the safeguards and treatments available and concluded that, while
vaccination remains the state’s best defence against COVID-19, it does not supplant the need
for other public health measures. The most effective response to the pandemic requires
vaccines to be complemented by other measures protecting human health, particularly the
health of the most vulnerable.
Report to Parliament on the extension of a pandemic declaration 15
OFFICIALAttachment A – Copy of signed extension of the pandemic
declaration by the Premier, dated 9 January 2022
OFFICIALPublic Health and Wellbeing Act 2008
EXTENSION OF PANDEMIC DECLARATION
(Section 165AE(1))
On 10 December 2021, under section 165AB(1) of the Public Health and Wellbeing Act
2008 (‘the Act’), I, Daniel Andrews, Premier, made a pandemic declaration applying to the
whole of Victoria (‘the Declaration’) on the basis that I was satisfied on reasonable grounds
that there was a serious risk to public health throughout Victoria arising from the coronavirus
(COVID 19) pandemic disease.
Now, under section 165AE(1) of the Act, I, after consulting with and considering the advice
of the Acting Chief Health Officer and the Minister for Health, being the Minister responsible
for giving advice under section 165AE(4) of the Act, extend the Declaration for a period of
three months on the basis that I am satisfied on reasonable grounds that there continues to
be a serious risk to public health throughout Victoria arising from the coronavirus
(COVID-19) pandemic disease.
This extension comes into force at 11:59:00pm on 12 January 2022. Pursuant to
section 165AD(2) of the Act, the Declaration will continue in force until 11:59:00pm on
12 April 2022, unless varied, extended or revoked.
The Hon Daniel Andrews MP
Premier
Date: 9 / 1 / 2022
OFFICIALAttachment B – Copy of the advice of the Acting Chief
Health Officer, dated 7 January 2022
OFFICIALHHSD/22/5665
Acting Chief Health Officer Advice to Premier
Advice relating to the extension of a Pandemic Declaration as required by
section 165AE of the Public Health and Wellbeing Act 2008
Date of advice: 7 January 2022
Introduction and Summary ......................................................................................... 2
How the Act Informs this Advice ............................................................................... 3
Focus of my advice ...................................................................................................... 4
COVID-19 is a pandemic disease ............................................................................... 5
International experience with Omicron ............................................................................. 8
COVID-19 remains a serious risk to public health ................................................. 19
COVID-19 transmission continues at a high rate ........................................................... 19
Impact on the health and pathology system and widespread harm ............................ 22
The ongoing risk requires continued public health intervention ................................. 24
The critical importance of third vaccine doses .............................................................. 25
Conclusion .................................................................................................................. 26
References .................................................................................................................. 27
1HHSD/22/5665
Introduction and Summary
1. In response to the request from the Acting Premier of Victoria on 5 January 2022, set out
below is my advice as Victoria’s Acting Chief Health Officer, regarding whether the Victorian
Premier should extend the pandemic declaration under section 165AE of the Public Health
and Wellbeing Act 2008 (Vic) (the Act) in relation to the coronavirus disease (COVID-19).
2. I advise that there remains a serious risk to public health throughout the State of Victoria
arising from COVID-19, in particular the Omicron (B.1.1.529) variant of concern (Omicron).
On this basis, I advise the Premier to make an extension to the pandemic declaration by a
period of 3 months.
3. This advice builds upon the advice that the Chief Health Officer gave to the Premier in
relation to the initial pandemic declaration, which was delivered to the Premier on
8 December 2021 (the Chief Health Officer’s advice). I agree with the general content of
that advice, update some information to ensure its continued accuracy, and provide
additional advice relevant to new developments.
4. In providing this advice, I am aware of the legislative context in which the Acting Premier’s
request is made. If the Premier extends the pandemic declaration, the Act continues to
empower Victoria’s Minister for Health to deploy a focused public health response, which
may include a combination of non-pharmaceutical and pharmaceutical interventions. The
Act requires that the public health response be proportionate to the public health risk that the
disease (in this case, COVID-19) poses.
5. I explain my reasons for this advice below, but in summary I consider that there continues to
be a serious risk to public health arising from COVID-19 throughout Victoria. In addition to
the general factors relating to COVID-19 and the virus that causes it (listed in paragraph 23
of the Chief Health Officer’s advice provided on 8 December 2021), the risk remains in
Victoria due to the following:
a) The high transmissibility and consequently rapid spread of Omicron leading to
significant case numbers that we have not previously experienced in Victoria, noting
it has become the dominant strain in Victoria and is currently estimated to account
for over 75% of newly diagnosed cases.
b) The continuing rise in hospitalisations and ICU admissions, with no indication
that Victoria has reached a peak in either count.
c) The potential for an overwhelmed pathology system.
d) The potential for significant negative impacts on essential services and supply
chains resulting from workforce furloughs, with potential negative downstream
impacts on access to essential goods and services for the Victorian community.
2HHSD/22/5665
e) The low proportion of Victorians who have received third dose vaccinations,
noting the evidence of substantially reduced vaccine effectiveness of two doses of
either AstraZeneca or Pfizer vaccination against the Omicron variant, with further
waning in protection against symptomatic COVID-19 infection in the months
following receiving the second dose. Restoring protection through a third dose of
mRNA COVID-19 vaccination is a very high public health priority.
6. Experiences from other jurisdictions indicate that Omicron continues to challenge public
health measures and has necessitated the reintroduction or expansion of public health and
social measures. Protective measures are therefore necessary to further manage the risks
associated with the current rapid spread of SARS-CoV-2 in the Victorian community, to
mitigate the impact on Victoria’s health system and critical industries, and to therefore
reduce the risk of excess deaths, widespread disruption to community functioning, and other
harms to the health and wellbeing of Victorians.
How the Act Informs this Advice
7. Section 165AE of the Act provides that an extension to the pandemic declaration may be
made if the Premier is satisfied on reasonable grounds that there continues to be a serious
risk to public health arising from a pandemic disease, or a disease of pandemic potential.
The initial pandemic declaration may be for up to four weeks;1 further extensions can be
made in increments of up to three months.2 There is no limit on the number of times a
pandemic declaration may be extended.
8. Section 3 of the Act defines the phrase “serious risk to public health” as:
a material risk that substantial injury or prejudice to the health of human beings has
occurred or may occur having regard to:
(a) the number of persons likely to be affected;
(b) the location, immediacy, and seriousness of the threat to the health of persons;
(c) the nature, scale and effects of the harm, illness or injury that may develop;
(d) the availability and effectiveness of any precaution, safeguard, treatment, or other
measure to eliminate or reduce the risk to the health of human beings.
9. If the Premier is considering making a pandemic declaration, including an extension, the
Premier must consult with and consider the advice of the Chief Health Officer and the
Minister for Health before making a pandemic declaration.3 This is my advice for the purpose
1
See section 165AC(1)(c)
2 See section 165AE.
3 See section 165AB(2) and section 165AE(4).
3HHSD/22/5665
of that provision, and I have taken the Act’s definition of “serious risk to public health” into
account when giving this advice.
Focus of my advice
10. Similar to the Chief Health Officer’s advice, the primary focus of my advice is the impact that
COVID-19 will have on the health and wellbeing of Victorians. This focus includes the flow-
on effects that the COVID-19 pandemic will have on the capacity of Victoria’s healthcare
system (including the pathology system) to manage the increasing caseloads that
profoundly exceed those previously experienced in the two years we have been responding
to COVID-19.
11. In making this assessment, I am guided by the rapidly changing situation in Victoria, where a
surge in cases over the last four weeks has already placed a significant strain on both
individuals and the healthcare system.
12. I am also guided by the experience of other states, territories and countries dealing with
Omicron, which is providing significant learning opportunities given they are experiencing
established community transmission of Omicron some weeks ahead of Victoria.
13. My advice is guided by the objectives of the Act, most relevantly, protecting public health
and preventing disease, illness, injury, disability, or premature death.4 It adopts an evidence-
based approach as to the risk that COVID-19 poses and the effectiveness of precautions
that might be used to reduce that risk.5
14. The evidence I have used to develop my advice for this extension includes:
(a) experiences from public health interventions implemented in Victoria, Australia and
internationally;
(b) case data and analysis, including information regarding disease severity;
(c) outbreak data and analysis;
(d) results from available predictive scenario-based modelling;
(e) established and emerging evidence from the scientific literature;
(f) analyses, guidance and statements from national authorities, such as the Australian
Health Protection Principal Committee (AHPPC), Australian Technical Advisory Group on
Immunisation (ATAGI) and Therapeutic Goods Administration (TGA), and international
organisations such as the World Health Organization (WHO), European Centre for
4 See section 4.
5 See section 5.
4HHSD/22/5665
Disease Prevention and Control (ECDC) and Centers for Disease Control and Prevention
(CDC);
(g) studies on vaccine effectiveness and COVID-19 vaccination data; and
(h) evidence of pharmaceutical and other clinical treatments and supports.
COVID-19 is a pandemic disease
15. Section 3(5) of the Act provides that, for the purposes of this Act, an infectious disease is a
pandemic disease at a particular time if, at that time, there is a pandemic outbreak of that
infectious disease.
16. The conclusion reached in the Chief Health Officer’s advice – that there has been a
pandemic outbreak of SARS-CoV-2 and therefore of COVID-19 – remains true. This is
evidenced by the large numbers of ongoing cases and outbreaks detected domestically in
Victoria, interstate and globally.
(a) As of 5 January 2022, Victoria has recorded 17,636 new locally and 0 new overseas
acquired cases and 11 deaths within the past 24 hours. There are currently 51,317
active cases, of which 591 are in hospital with 53 COVID-19 patients receiving care in
intensive care units (ICU) and of whom 20 are on ventilatory support. To date there have
been a total 230,919 cases, 10,305 hospitalisations and 1,553 deaths in Victoria.
(b) As of 5 January 2021, the 7-day average case rate for Victoria is 977 cases per 100,000
population, which represents a 7-day case growth rate of 307% (percentage increase in
the rate of new cases over a 7-day period) compared to the preceding week. The test
positivity rate for the past 7 days is 14.7%. During September, October and November
2021, the test positivity rate was roughly between 1.5% and 2.0%, and even that number
was sufficiently high to indicate significant unidentified transmission of the virus within
the community. The current rate indicates that current data dramatically underestimates
the number of Victorians who have become infected on any given day.
(c) As of 4 January, according to the WHO COVID-19 dashboard, there have been a total
290,959,019 cases, 5,446,753 deaths and 8,693,832,171 vaccine doses administered
across the globe. The WHO weekly epidemiology update for the week ending December
2021 depicts a global trend of increasing cases (rising 11% compared to the previous
week) accompanied by a sustained number of COVID-19 related deaths (similar in
number to the previous week). North Korea, Turkmenistan, the Federated States of
Micronesia, Kiribati, Nauru, Tuvalu and Niue remain the only countries with no reported
cases of COVID-19.
5HHSD/22/5665
17. The characteristics of SARS-CoV-2 that make COVID-19 a pandemic disease are set out in
paragraph 23 of the Chief Health Officer’s advice provided in December. Those
characteristics remain. However, since the Chief Health Officer’s advice, there has been a
significant further development in the widespread dissemination of Omicron which, by 4
January 2022, has been identified in confirmed cases in 128 countries. Additional points to
highlight in relation to Omicron include:
a) Omicron is considerably more infectious than other strains of the virus in the current
epidemiological context. Although peer reviewed evidence on transmissibility of Omicron
is pending, early cohort analysis from the UK suggests that the adjusted odds ratio for
household transmission from an Omicron index case compared to a Delta index case is
2.9 (95% CI 2.4-3.5, pHHSD/22/5665
Omicron, as the large number of infections that follow from a substantial growth and
transmission advantage means that Omicron cases may still overwhelm essential
health service capacity and disrupt economic and social activities in the community.
d) The aforementioned changes to the transmissibility, risk of reinfection and severity of
disease due to Omicron appear to be due to a large number of mutations that are present
in the VOC. There are some 50 mutations identified in Omicron, including 32 mutations
related to the spike protein which facilitates cellular interaction and is a key
immunological target of both natural and vaccine induced immunity. Although the
phenotypic properties of Omicron remain under investigation, some mutations overlap
with those associated with other known VOCs including Alpha, Beta, Delta and Gamma
and may be associated with higher transmissibility, immune escape7 and an increased
risk of reinfection.8
e) Available evidence reports a shortened median incubation period (which is the
interval from earliest possible infectious exposure until symptom onset) with Omicron of
approximately 3 days, as observed in a small case cluster studied in the USA9 and an
outbreak at a large social event in Norway,10 compared to 4.3 days for Delta and 5 days
for non-Delta SARS-CoV-2 strains11. This makes it even more difficult to break chains of
transmission without stringent public health measures, as forward transmission may
have already occurred by the time a case develops symptoms and becomes
diagnosed.
f) Taken together, the available epidemiological evidence suggests Omicron has a
substantial growth advantage compared to Delta, spreading faster across the
population in countries where community transmission has been recorded. The UK
Health Security Agency reported a doubling time of less than 2.5 days (ranging from 1.75
- 2.3 days) in all observed regions based on data recorded until 22 December12. Genomic
surveillance has already established that Omicron is the dominant strain in several
countries.
i. South Africa since November 2021;13
ii. United States of America, with Omicron constituting 58.6% of cases for the week
commencing 25 December 2021;14
iii. United Kingdom, based on the detection of the characteristic s-gene target failure
in 56.7-92.6% of samples between 14-26 December 2021;15,16 and
iv. Denmark, which reported Omicron constituting 53.7-79.5% of samples from 17-23
December.17
Further, the European Centre for Disease Prevention and Control predicted that
Omicron would outcompete Delta and become the dominant strain in Europe from early
2022, based on the perceived growth advantage and immune avoidance of
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