Victoria’s state of emergency extension has received a lot of attention, but that could be due to parliamentary scrutiny

The use of emergency powers during the COVID-19 pandemic — allowing governments to restrict individual freedoms, suspend constitutional norms and bypass normal parliamentary scrutiny — has prompted intense public debate across Australia.

A recent focus of debate in Victoria was the State Government’s push to extend, from six months to 18 months, the maximum period a state of emergency can remain in force.

Key points

  • Victoria is the only state which requires parliamentary approval to extend its state of emergency
  • Other jurisdictions, including the Commonwealth, can extend their states of emergency for varying periods of time without parliamentary scrutiny
  • NSW doesn’t even need to declare a state of emergency to activate stronger public health powers

Liberal MPs labelled the Government’s plan “a power grab” and “overreach“. The business community said it was an “admission of failure“.

The debate was marked by confusion, with some thinking the change would mean Victorians would remain in lockdown for another year, and it highlighted the tension between emergency powers and normal democratic processes.

In the end, the Government compromised, with legislation passed to extend the period from six months to 12 months, during which it can opt to roll over its state of emergency every four weeks without requiring parliamentary approval.

Often lost in the debate was the fact that Victoria is the only state that caps the maximum length of time a state of emergency can remain in force.

Public health acts provide states and territories with base-level powers to manage community health. The declaration of a state of emergency activates stronger powers for a certain period of time to address serious public health threats, such as the COVID-19 pandemic.

The period of time that a state of emergency may remain in force varies across states and territories, but it can be extended as long as a health minister considers it necessary.

As mentioned, Victoria can extend an initial state of emergency, but unlike other jurisdictions, the maximum period is capped at 12 months.

New South Wales is the only state where a state of emergency does not need to be declared to activate stronger powers to manage a severe public health risk because these powers already exist within its Public Health Act.

The Federal Government can also declare a human biosecurity emergency across Australia, invoking strong powers to manage a public health risk for a period of time, and it too can extend this indefinitely if the health minister considers it necessary.

Maria O’Sullivan, a senior law lecturer at Monash University, told RMIT ABC Fact Check that Victoria’s hard limit on the maximum period of a state of emergency provided “accountability and transparency”.

“It became a focus of media attention because that required the Parliament to sit and debate it,” she said.

“But other jurisdictions, including the Commonwealth, are able to extend their state of emergency declaration without such scrutiny because their legislation allows it.

“So, they’ve gone under the radar. They haven’t been subject to the same media attention [as Victoria].”

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Monash University associate professor Patrick Emerton, a legal theorist and expert in state of emergency legislation, told Fact Check that “Victoria has the strictest relationship” between the legislation and rule-making powers conferred to officials under a state of emergency.

“As to which is more democratic: going back to Parliament, in some ways, is more democratic,” he said.

So, how long can a state of emergency remain in place in jurisdictions around Australia? RMIT ABC Fact Check takes a look at what the law says in each of the states and territories, and at the federal level.

Click or tap below to explore.

Commonwealth

On March 18, 2020, the Governor-General declared a human biosecurity emergency across Australia under the Biosecurity Act 2015. COVID-19 marks the first time that emergency powers have been activated under this act.

The act provides special powers for dealing with emergencies involving threats or harm to human health on a nationally significant scale.

The declaration of a human biosecurity emergency gives the Government broad powers to take any necessary measures to minimise the spread of the COVID-19, such as banning overseas travel and limiting international passenger arrivals.

Under sections 475 and 476, an emergency period may run for three months. It can be extended for further periods of three months provided the Health Minister considers it necessary.

There is no cap on the number of times the declaration can be extended.

The current emergency period has been extended until December 17, 2020.

Victoria

Health Minister Jenny Mikakos declared a state of emergency across Victoria on March 16, 2020 to manage the spread of COVID-19, using powers under the Public Health and Wellbeing Act (2008) — the principal act for public health powers in Victoria.

Once a state of emergency has been declared, the act gives the Chief Health Officer expansive powers to issue directions and take actions to manage risks to public health, such as the power to detain people, restrict their movement within the state and prevent anyone from entering Victoria.

Under section 198, a state of emergency can run for four weeks, after which it can be renewed for a further four weeks, up to a maximum period of six months.

Victoria is the only state or territory in Australia that caps the total time period during which a state of emergency can be in force.

The current state of emergency has been renewed a number of times but the maximum period of six months was due to expire on September 16, while stage 4 restrictions were still in place.

This is the reason the State Government sought to pass an amendment to the Public Health and Wellbeing Act: that is, to lengthen the total period over which a state of emergency declaration could continue for COVID-19.

It initially sought to expand the total to 18 months, but eventually compromised, agreeing to 12 months. The amendment has cleared the Upper House, paving the way for a one-off extension that relates only to the pandemic.

In other words, the total period during which a state of emergency declaration may remain in force in respect of the COVID-19 pandemic in Victoria will be lengthened from six months to 12 months.

The amendment will also enhance reporting requirements when a state of emergency declaration in respect of COVID-19 pandemic is extended beyond six months.

In Victoria, a state of disaster was also declared on August 2, under the Emergency Management Act 1986, as Victoria entered stage 4 restrictions. This gave Victoria Police greater powers to enforce public health directions such as nightly curfews, a five-kilometre travel limit and bans on mass gatherings.

A state of disaster can be renewed every four weeks.

New South Wales

The State Government has powers under the Public Health Act 2010 to deal with public health risks generally, provided the relevant areas of NSW are declared to be “public health risk areas”.

Under section 7, the Health Minister has broad powers to make any direction necessary to reduce or remove a risk to public health; segregate or isolate people; and prevent or give access to parts of NSW.

Unlike other states and territories in Australia, a state of emergency does not need to be declared in NSW for these powers to be used.

The powers expire after 90 days but can be renewed on an ongoing basis. There is no cap on the length of time that these orders can remain in force.

Should NSW wish to adopt measures that require a stronger police response, such as nightly curfews, the Government could declare an emergency under the State Emergency and Rescue Management Act, which would more clearly set out the powers that can be used.

However, the State Government has not taken this step to date as it has not required such powers.

Queensland

The State Government declared a public health emergency on January 29, 2020, using powers under the Public Health Act 2005.

A public health emergency declaration gives Queensland’s Chief Health Officer broad powers, including restricting people’s movement, restricting contact between people, and providing any other directions the CHO believes are necessary to protect public health.

The declaration also allows the Government to use new powers added to the act to deal with the COVID-19 pandemic.

Sections 322 and 323 allow a public health emergency to be declared for seven days. It can then be extended for 90 days without a cap on the total period that the declaration is in force.

Queensland’s state of emergency has been extended until October 2, 2020.

South Australia

South Australia declared a public health emergency on March 15, 2020, using powers under the South Australian Public Health Act 2011.

Section 87 allows this declaration to remain in force for 14 days and “for such periods (which may be for any length) as may be approved by the Governor”.

On March 22, the State Coordinator, who is currently the police commissioner, declared a major emergency under the Emergency Management Act 2004.

This gives the State Coordinator broad powers to do whatever is necessary to manage the public health emergency, such as direct a person to self-isolate or undergo medical treatment, as well as prohibiting activities.

Section 23 allows this declaration to remain in force for 14 days and “for such periods (which may be for any length) as may be approved by the Governor”.

This declaration has been extended multiple times and currently runs until September 19.

Western Australia

There are two emergency declarations in force in WA.

A state of emergency was declared on March 15, 2020, under the Emergency Management Act 2005.

Sections 57 and 58 allow a state of emergency to run for three days and then be extended for 14 days. The latest declaration has been extended until September 17, 2020.

A public health state of emergency was also declared on March 16, 2020, under the Public Health Act 2016.

Sections 168 and 170 allow a public health state of emergency to run for seven days and then be extended for a further 14 days, but there is no limit on the number of extensions.

Both declarations give the Chief Health Officer and the State Emergency Coordinator (the commissioner of police) powers to manage the emergency using a range of measures including prohibiting the movement of people, and directing a person to be quarantined or undergo a medical examination, treatment or vaccination.

Tasmania

There are two emergency declarations in Tasmania.

A public health state of emergency was declared on March 17, 2020, under the Public Health Act 1997.

This grants the Tasmanian Director for Public Health powers to manage a threat to public health, including quarantining and controlling the movement of people.

Under section 15, a state of emergency may be in force for seven days and then be extended for a further seven days.

However, as a result of new powers added to the act, a state of emergency in relation to COVID-19 can be in force for 12 weeks and then extended for 12 weeks at a time.

A public health emergency can be extended indefinitely while a threat to public health continues.

On March 20, 2020, a state of emergency was also declared under the Emergency Management Act 2006.

Under this state of emergency, the State Controller has powers to shut down public spaces and limit the movement of people in and out of Tasmania.

Section 42 allows this declaration to remain in force for 12 weeks in the case of an emergency relating to disease in humans or animals, or for 2 weeks in any other case.

If a declaration of a state of emergency relating to disease in humans or animals is made for a period exceeding four weeks, the need for the declaration is reviewed by an emergency management committee at the end of the first four weeks and then every two weeks while the declaration continues to have effect.

Australian Capital Territory

A public health emergency was declared on March 16, 2020, under the Public Health Act 1997.

This gives the Chief Health Officer broad powers to take any action or give directions to manage a public health risk. This can include restricting gatherings and self-isolation if a person is diagnosed with COVID-19.

Under section 119, the declaration can remain in force for five days. This can be extended for 90 days in relation to COVID-19 or two days in any other cases.

If a COVID-19 declaration is extended, the CHO must advise the minister every 30 days whether the declaration is still justified. This provides formal monitoring, but there is no cap on the length of time a declaration can remain in force.

Northern Territory

A public health emergency was declared on March 18, 2020, under the Public and Environmental Health Act 2011.

Under section 50, a public health emergency can remain in force for 90 days and then be extended for a further 90 days, but there is no cap on the total length of time.

As with other states and territories, the act gives the Chief Health Officer the power to manage the emergency, using measures such as isolation, preventing movement and issuing warnings.

Sources

Principal researcher: Sushi Das, chief of staff, with Ben Harrington

factcheck@rmit.edu.au

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