Chief Health Officer Brett Sutton, having served for nearly three years as the public face and key adviser to Victoria’s response to COVID-19, was not consulted on the decision to lift the state’s pandemic declaration.

At 11.59pm on Wednesday the current pandemic declaration expires, signalling the end of Victoria’s emergency response to the virus. Government sources confirmed that advice prepared by the state’s public health team to inform this decision was neither sought nor considered by Premier Daniel Andrews.

Victorian Chief Heath Officer Brett Sutton was not consulted on the decision to lift the pandemic declaration.Credit:Simon Schluter

In response to questions from The Age about the premier’s decision not to seek Sutton’s advice, a government spokesman referred to a separate decision agreed to by national cabinet to end mandatory isolation for COVID cases.

That decision, based on the advice of Australia’s Chief Medical Officer Paul Kelly, removed one of the few remaining public health orders in Victoria which requires a pandemic declaration to have legal force.

Under Victoria’s Public Health and Wellbeing Act amended in late 2021 as Melbourne was emerging from its sixth and final COVID lockdown, there is no requirement for the premier to seek the advice of the CHO when deciding whether to allow a pandemic declaration to lapse.

If Andrews had wanted to revoke the declaration before its October 12 expiry date, extend it or otherwise vary it, he would have been obliged to consult and consider the advice of both Sutton and Health Minister Mary-Anne Thomas. Sutton’s advice, in due course, would have been published.

Reason Party MP Fiona Patten.Credit:Justin McManus

To let the declaration expire, Andrews was not required to do anything.

Reason Party leader Fiona Patten, one of the crossbench MPs whose support was vital to the passage of Victoria’s pandemic laws through parliament, said this reflects a deliberate design feature of the amended act.

A pandemic declaration is the legal instrument required to give the health minister the power to order people to stay home, businesses and classrooms to shut and positive cases to isolate.

As the laws are written, the onus is on the government to show why it needs these extraordinary powers to respond to a pandemic, not why it doesn’t. “The legalisation is proactive,” Patten said. “A declaration ceases to exist unless the premier makes the case that it needs to.”

The result is that an unprecedented public health response which began in March 2020 and culminated in Melbourne spending 262 days in lockdown has ended in a whimper, with no parliamentary scrutiny and little public debate.

While the lifting of the pandemic declaration has been broadly welcomed by business groups, the absence of Sutton and his public health team from this final, significant decision will create unease among people who, since the pandemic began, have taken comfort from the government’s repeated assurances that it always follows the public health advice.

“I Just think it is extremely curious that after 2½ years of the CHO being side by side with the premier, the government is now not seeking his advice,” opposition health spokeswoman Georgie Crozier said.

“Technically, the premier doesn’t have to, but you would think he would.”

Daniel Andrews at last month’s meeting of national cabinet.Credit:Alex Ellinghausen

Andrews’ decision not to seek the CHO’s counsel further widens the gap between Victoria’s public health leadership and the government about where our ongoing pandemic settings should be.

Previously published advice by Deputy Chief Health Officer Ben Cowie showed that the government did not act on his advice to reimpose mask mandates in schools, early learning centres and retail outlets at the start of this year’s winter wave.

Sutton’s recent tweet warning against “sleepwalking into COVID” suggests he doesn’t support the national cabinet decision to abandon mandatory isolation – a decision taken without input from the state chief health officers – and by extension, the lifting of the pandemic declaration.

Melbourne University public health expert Nathan Grills, while not critical of the decision to end the pandemic declaration, questioned the process followed by the government.

“I think something is missing if they are not consulting their chief health officer who, right through the pandemic, has been responsible for implementing the emergency health orders,” he said.

“The government doesn’t need to take only the advice of the chief health officer – they can consult other departments and interests to make a final decision. But it would be unwise not to at least consult with the CHO and take their advice into account.”

Deakin University epidemiologist Catherine Bennett said the absence of formal advice from Sutton was only a problem if it reflected a larger gulf in communication between his public health team and the health minister’s office.

“I would be comfortable if we knew there was good communication,” she said. “Do you have to write it a rule book, ‘we have to go talk to that person’, when that person should be reporting to the health minister on a very regular basis?”

Andrews said on Wednesday that, although a pandemic declaration was “central to whether it’s a pandemic in a legal sense”, COVID remained. He urged people to follow the CHO’s advice on getting tested, staying home when sick and keeping up to date with vaccines.

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