Some musings on the legal foundations of the State of Energency declaration in VIC

 

On 24 August 2020, the Premier of VIC, Daniel Andrews, suggested to extend its state of emergency by 12 months. Predictably, the pushback came hard and fast, with comparisons to a dictator.

My personal feel is that the proposal is one of Too much executive power, too little legislative oversight.

That being said, Daniel Andrews has a point: only VIC has a time limit in how long the state of emergency declared under the Public Health and Wellbeing Act 2008 (Vic). Specifically, s198(7)(c) of the Public Health and Wellbeing Act 2008 (Vic).

While in the other states, notwitstanding that there is a time limit on how long a public health emergency can last, there is no limit on the number of times it can be renewed.

(At this point I think it is pretinent to note that this is different to the State of Disaster, which is declared under the Emergency Management Act 1986 (VIC). The 2 states are declared under different Acts; however they work with each other. It is also pretinent that there is no limit on the number of times a State of Disaster can be renewed)

For example, in QLD, a (public health) emergency can be declared for 90 days maximum, but there is no limit on the number of times it can be extended.

As of 26 Aug 2020, it has been extended 4 times since the declaration on 29 January 2020:

Original notice in the Gazette on 31 Jan 2020:

 

Extended to 12 Feb 2020 by Public Health (Extension of Declared Public Health Emergency—Coronavirus (2019-nCoV)) Regulation 2020: 

 

Extended to 19 Feb 2020 by Public Health (Further Extension of Declared Public Health Emergency—Coronavirus (2019-nCov)) Regulation 2020:

 

 

Extended to 19 May 2020 by Public Health (Further Extension of Declared Public Health Emergency—Coronavirus (2019-nCoV)) Regulation (No. 2):

 

Extended to 17 Aug 2020 by Public Health (Further Extension of Declared Public Health Emergency—COVID-19) Regulation (No. 3) 2020: 

 

Extended to 2 October 2020 by Public Health (Further Extension of Declared Public Health Emergency—COVID-19) Regulation (No. 4) 2020:

 

All the other states have similar legislation form: that is to say, there is no time limit on how long a State of Emergency can be declared.

 

Yet no political swinging on the fact that the other states are dictatoral by having unlimited times to extend a existing declaration of emergency.

I suppose VIC tried to do the right thing from a human rights perspective, however these laws were not designed for a pandemic like what the world is facing with COVID19.

My personal view is that this proposal is still Too much executive power, too little legislative oversight, but one can see the dilemma the VIC government finds itself.

Even the suggestion to require the return of parliament periodically (say, every three or six months) to justify extending the timeframe of its powers is still a higher standard than all the other Australian states.

Coming from Sarawak. a place where the Emergency Ordinance 1966 [P.U.(A)339A/1966] suspended some of Sarawak's Constitutional Rights to deal with a coup against Stephen Kalong Ningkan, and was rubber stamped renewed until it was repealed (ironically, by Najib) in 2011. So I'm no fan of giving governments too much power.

Personally the VIC government could just let the existing state of energency lapse, and declare a new one, to reset the clock. I'd bet there will be legal challenges to it that may have a leg to stand on.

 

My take is that there are no good options on the table for any government in VIC; damned if you do (extend the length of time a state of energency can be declared and be called a dictator), damned if you don't (let the existing declaration lapse and have no legal powers to deal with a pandemic)

Having a knee jerk reaction of opposition to any government extending its powers it warranted, but I think it is fair to don't lose sight of nuance.