The Premier of Victoria has declared a ‘state of disaster’ pursuant to the Emergency Management Act 1986 (Vic) s 23. The declaration applies to ‘six Local Government Areas and the Alpine Resorts’.
As a result of that declaration (s 24)
… the Minister [for Emergency Services] is responsible for directing and co-ordinating the activities of all government agencies, and the allocation of all available resources of the Government, which the Minister considers necessary or desirable for responding to the disaster.
The declaration allows the Minister to:
(a) direct any government agency to do or refrain from doing any act, or to exercise or perform or refrain from exercising or performing any function, power, duty or responsibility
And, in a provision that is I think unique to Victoria:
(b) if it appears to the Minister that compliance by a government agency with an Act or subordinate instrument, which prescribes the functions powers duties and responsibilities of that agency, would inhibit response to or recovery from the disaster, declare that the operation of the whole or any part of that Act or subordinate instrument is suspended;
That is the Minister can direct any department to depart from ‘business as usual’ and can suspend any Act or regulation if compliance with that Act or regulation would inhibit the response to or recovery from the disaster. That is significant executive power vested in a single Minister.
Australian Emergency Law 
Thanks for that explanation Michael.
As you note, that last provision puts a lot of power in the hands of the Minister. The intent is noble, and ensures that unnecessary red tape or regulation doesn’t get in the way of response and recovery.
However one could imagine a scenario where this power could be misused, for example during demonstrations and protest movements against the Government.
It’s a long bow to draw, sure, but not beyond the bounds of possibility. I’m wondering if some safeguards need to be put in place to prevent misuse of this significant executive power vested in the Minister. Would it be better if the clause included a restriction to the management of natural disasters?
There key limit is that the person who makes the declaration (the Premier) is not the person who is empowered to act (in this case it’s the Minister for Emergency Services). That may not be seen to be sufficiently separate and in some other jurisdictions the power is given to an appointed person (see https://emergencylaw.wordpress.com/2020/01/02/state-of-alert-declared-for-the-australian-capital-territory/) or public servant.
I do note that, for example, the State Emergency and Rescue Management Act 1989 (NSW) s 7 says “This Act does not authorise the taking of measures directed at: (a) bringing an industrial dispute to an end, or (b) controlling a riot or other civil disturbance (other than a riot or civil disturbance resulting from and occurring during a state of emergency).”
The Victorian Act does not have an equivalent provision. The definition of emergency in the Victorian Act is ‘an emergency due to the actual or imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health of any person in Victoria or which destroys or damages, or threatens to destroy or damage, any property in Victoria or endangers or threatens to endanger the environment or an element of the environment in Victoria including…’ A disaster is an emergency that creates ‘a significant and widespread danger to life or property’.
There are examples of emergencies where the act can apply. They include fires, storms, accidents etc but those examples do not limit ‘the generality of the foregoing’. Further, a specific example of an emergency is ‘a hi-jack, siege or riot’. In Victoria then a protest (‘riot’) or occupation of government officers (‘siege’) not only could but are intended to trigger the provisions in the Victorian Act.
The answer is that parliaments and electorates need to hold governments to account if they misuse these powers.
Hi Michael. Two queries with this. I was wondering if this automatically triggers the state of emergency powers under s.198 of the Public Health and Wellbeing Act 2008 or whether those powers need to be specifically requested by the Chief Health Officer.
Secondly, I note that the media release from the Victorian Government states, “This is the first time the Victorian Government has used these powers since they were included in the Emergency Management Act 1986 following the devastating Victorian Bushfires in 2009.” Whilst this is certainly the first time I can recall such a declaration, the provisions appear to be similar (or identical) to those prior to the 2009 bushfires. I would read this as a typo and that it was meant to say “following … the Victorian Bushfires in 1983” but just wondering if I’m missing something.
Thanks.
No, a declaration of a state of disaster under the Emergency Management Act 1986 (Vic) does not ‘automatically trigger the state of emergency powers under s.198 of the Public Health and Wellbeing Act 2008’. It would not doubt be confusing if both the Chief Health Officer and the Minister for Emergency Services were seeking to exercise emergency powers. If there was some need for a declaration under the Public Health and Wellbeing Act that would be a separate declaration.
It’s true that ss 22-24 appeared in the Emergency Management Act 1986 (Vic) when it was first enacted . The Emergency Services Legislation Amendment Act 2009 (Vic) certainly did not amend the sections regarding a state of disaster. There were some changes to reflect titles but nothing significant in 2011 (see the notes that appear in the official version of the Act.
During the Black Saturday fires there was no declaration made under the Emergency Management Act and this attracted some criticism from the Royal Commission. I think we can safely say “This is the first time the Victorian Government has used these powers since … the devastating Victorian Bushfires in 2009.” But it’s true that they had the powers in 2009 and there were not inserted into the Act after the 2009 fires.
Thanks for the reply.
I think the problem is, under Public Health and Wellbeing s 199(1)(a) there must be a State of Emergency.
All the fines and directions this week are still in this Act.
But on Sunday I think it was, the State of Disaster started. So I think Public Health and Wellbeing cannot give power anymore, as there is no State of Emergency anymore.
Furthermore, I think s 198(7) it may not go on for 6 months. This is to protect that it is not abused.
I think Emergency Managment Act 1986 (Vic) s 24 applied, and the Minister (Lisa Neville now?) it is not clear the Act which Minister should be delgating out to whoever. The CHO lost his power under the Public Health and Wellbeing ss 198-200 when the State of Disaster was Declared and hence the State of Emergency ended.
So why are we still using Directions under the old Act? Furthermore, it now says “Public Health Commander” which is not even featured in the Public Health and Wellbeing Act.
Also, we see Police walking together with the army. The army are operating under Biosecurity Act (Cth) and the Police are Public Health and Wellbeing (does this still apply in State of disaster) which is really confusing.
The declaration of a state of disaster under the Emergency Management Act does not mean that the State of Emergency declaration under the public health Act does not remain in force. Neither the Emergency Management Act nor the PUblic Health and Wellbeing Act say that when a State of Disaster is declared a public health State of Emergency comes to an end.
For Health Commander see the State Health Emergency Response Plan – https://www2.health.vic.gov.au/Api/downloadmedia/%7BF109DFAE-FF79-47F6-8084-8F58FD456F10%7D
The ADF are not operating under the biosecurity Act, they are providing defence assistance to the civil community – see https://emergencylaw.wordpress.com/2020/07/02/using-the-adf-to-maintain-quarantine/. This is what they do when they assist in fires and other disasters.
Does a declaration of a State of Emergency or Disaster in Victoria really give the government enforceable powers or is it symbolic like you answered in the quote below for the Commonwealth
“This begs the question of ‘what is a national emergency and what would such a declaration mean?’ The answer is that the Commonwealth has no overarching emergency management legislation. There is no power to declare a ‘national emergency’ and the declaration, if made, would have no legal effect or impact. Unlike a declaration at state level it would not trigger any extraordinary powers or authority or release any emergency funds. The declaration, if made, would at best be symbolic.“
Please see emergencylaw.wordpress.com/2020/08/03/state-of-disaster-declared-in-victoria/
The issue I see is that once either the State of Disaster or the State of Emergency is enacted, the Premier must take it before both houses of parliament (SofE) or “Parliament”. Or if Parliament is not sitting then at the next sitting of Parliament.
Sounds like a great oversight in practice, but when they have currently suspended Parliament sitting again for all these months – how do we have the checks and balances on such wide ranging use of power?
See my response to another but similar comment at https://emergencylaw.wordpress.com/2020/08/03/state-of-disaster-declared-in-victoria/#comment-43090
Hi, just brushing up on the length of time a State Of Disaster can be in effect in Vic and then compared to other states. The recent legislation indicates that the period of time in Vic was six months and is now 12 months and comments in the media suggest that every other state is open ended. I’ve been looking for an answer online, without much luck.
Can you shed some light on the current limits for each state please?
See my comment dated August 25, 2020 that appears after the post ‘State of Disaster declared in Victoria (Aug 3, 2020) – https://emergencylaw.wordpress.com/2020/08/03/state-of-disaster-declared-in-victoria/#comments