1. Emergency powers: the broader landscape
1.1 What are emergency powers?
Most modern democracies have a range of special powers available to respond to emergencies that threaten safety, property or the integrity of the state. Invoking these powers sets aside the normal workings of legislative and executive powers established by a state's constitution and concentrates broad regulation-making powers in an official within the executive government. Once these special powers are triggered, the executive government is typically authorised to make regulations with respect to anything deemed necessary to respond to that emergency, often free from normal processes of parliamentary scrutiny.[footnote 9] In Australia, these powers are provided for by emergency legislation or clauses within legislation that are activated by the declaration of a 'state of emergency'.
1.2 Emergency powers and democracy
As emergency law suspends aspects of the normal distribution of constitutional power, it is a highly contested component of Australia's legislative system. Emergency laws gain democratic legitimacy because they are provided for by legislation created through the ordinary law-making processes carried out by elected representatives. This legislative approach to emergency powers bears risks. By couching extraordinary powers in ordinary legislation, for example, they have the potential to be normalised.[footnote 10] More generally, in liberal democracies such as Australia, the very notion of emergency powers might be considered paradoxical. Not only do emergency powers enable the state to act outside the constitutional norms that give force to the legislation providing such powers, but to act outside constitutional norms that ground the very legitimacy of the state.[footnote 11]
By their nature, then, emergency powers raise vexing questions about balancing security with individual freedom. In a federal legal system such as Australia, it also presents challenges regarding the distribution of power between national and state legislatures, and the style of emergency response as shaped by the cultures of different public health and emergency management agencies at each level of government.[footnote 12] As has been the case with COVID-19, the exercise of emergency powers also often raises questions about ministerial accountability and decision-making.[footnote 13] Despite all this, as constitutional law experts Lee, Adams, Campbell and Emerton—authors of the authoritative textbook, Emergency Powers in Australia (herein after, Lee et al)—observe: 'the remarkable trait of a liberal democracy is that while the powers to cope with [footnote an] emergency provide the potential for authoritarian rule, such powers are terminated with the restoration of normalcy'.[footnote 14]
1.3 Who is responsible?
In Australia, declaring and responding to emergencies has traditionally been the responsibility of the states and territories. State parliaments exercise plenary powers, meaning they can legislate on any matter other than those matters over which the Commonwealth has exclusive power.[footnote 15] Accordingly, the states are generally free to define an 'emergency' as they see fit, and delegate special powers in line with that definition. States are constrained only by the limited freedoms guaranteed by the Australian Constitution, areas which the Constitution specifies as the responsibility of the Commonwealth Government (such as quarantine) and the requirement that parliaments do not permanently abdicate their legislative powers.[footnote 16]
The Australian Constitution does not provide the Commonwealth Government with a core or general 'emergency power' with which to respond to exceptional threats and crises.[footnote 17] Rather, special powers are provided for in ordinary and typically state-level legislation that defines the conditions under which specific kinds of emergencies might be declared. In the absence of fixed definitions, legal scholars tend to classify three kinds of emergency that might necessitate the use of such powers: 'wartime' emergencies; emergencies pertaining to 'serious civil disturbances', including treason, sabotage or terrorism; and 'civil emergencies', including from natural, medical and industrial disasters, strikes in essential services, and economic emergencies.[footnote 18]
The range of Australia's emergency powers for addressing such threats has become more complex in recent decades. Since the terrorist attacks of September 11 2001, and the subsequent 'war on terror' waged by countries including Australia, most academic commentary and political debate has centred on the implications of new legislation that provides authorities with sweeping powers to counter terror activities. In this context, the Commonwealth Government has sought to significantly expand its powers dealing with these threats.[footnote 19] In Australia, as elsewhere, this legislative activity has raised repeated concerns about the potential imbalances between public safety and the rule of law.[footnote 20]
Emergency powers have also undergone significant change in response to the increased incidence of natural disasters, including the 2009 Black Saturday bushfires and 2019–20 bushfires, and warnings by global health authorities of the likelihood of a global pandemic. Over the past few decades, all states and territories have introduced new emergency management legislation as well as public health legislation with clauses containing emergency powers to deal with such disasters.
1.4 Emergency powers in Victoria and other states
Emergency powers are not new. In Australia, special powers resemble the broad framework provided for by the Emergency Powers Act 1920 (UK).[footnote 21] In Victoria, such powers were first provided by the Public Safety Preservation Act 1923, which empowered the Governor in Council to issue a 'proclamation of emergency' of up to one month's duration, enabling the issuing of regulations for securing 'public safety or order'.[footnote 22] This legislation was consolidated in 1928 and again in 1958, with the latter still in force.[footnote 23] The Essential Services Act 1958 (Vic) similarly empowers the Governor in Council to declare a state of emergency when essential services appear threatened, such as during industrial action. Similar powers are available under the Fuel Emergency Act 1977 (Vic). A state of emergency was last declared under this Act in 2004, in response to a hospital shortage of coal briquettes.[footnote 24]
Emergency Management Acts
In practice, these laws have now been largely superseded by Victoria's Emergency Management Acts, as well as the powers vested in other specific legislation, such as the Public Health and Wellbeing Act 2008 (<href="#_Public_Health_and">see below). Victoria's Emergency Management Act 1986, which replaced the State Disasters Act 1983, was enacted following the Ash Wednesday bushfires in 1983, to provide a legislative foundation for an 'all agencies approach' to hazards and emergencies.[footnote 25] It is now complemented by the Emergency Management Act 2013, enacted after the 2009 Black Saturday bushfires and the 2010–11 and 2011–12 floods in regional Victoria. The 2013 Act followed successive inquiries—including a royal commission and white paper—that recommended a new overarching policy framework and centralised operational control.[footnote 26]
These changes in Victoria reflect a general pattern in emergency power legislation by other state and territory governments in recent decades. All states and territories have now passed similarly titled Emergency Management Acts.[footnote 27] This legislation is intended to standardise the bureaucratic management of emergencies across Australia by creating new advisory councils, agencies and plans, including a dedicated Emergency Commissioner who is responsible for overseeing and coordinating agency functions. These frameworks are designed to guide the exercise of emergency powers by public officials.[footnote 28] By diffusing emergency powers throughout a group of responsible public officers and bureaucratic structures, lawmakers have sought to make it difficult for one or a small group of political officers (Ministers) to concentrate power and weaken democratic processes.[footnote 29]
Advised to try the hospital. Sydney steals our allocated doses, and sends us their pox ridden Covid Kents. Time for another joint.
for Aus lol.
