Today’s correspondent has:
… been wondering lately, should the pandemic reach Italian proportions or worse, what emergency powers do current national and state legislation allow the state governments to invoke? Could they for instance establish a curfew, could they assume control of private ambulance services (WA), could they cancel annual leave of private ambulance service employees etc?
This blog is about Australian Emergency Law but that has been limited to ‘natural’ disasters (fire, flood, storm etc) and responders to those emergencies. Public Health law uses similar language but it is a different area of expertise. Further given there is relevant public health law in every jurisdiction, including the Commonwealth (Biosecurity Act 2015 (Cth)) I cannot give a single answer for all states.
With those limitations I can try to answer the question. In Western Australia, the relevant law is the Public Health Act 2016 (WA). The Act provides for a ‘serious public health incident’ and a ‘public health emergency’. I don’t think there has (yet) been a declared public health emergency in WA it is likely that such a declaration will be made given that those sorts of declarations have been made in Victoria, South Australia and the ACT. During a public health emergency in WA, an emergency officer may
- direct or, by direction, prohibit, the movement of persons, animals and vehicles within, into, out of or around the emergency area or any part of the emergency area; or
- direct the evacuation and removal of persons, animals and vehicles from the emergency area or any part of the emergency area; or
- close any road, access route or area of water in or leading to the emergency area.
(s 181) ‘… use a vehicle in any place and in any circumstance despite any provision of any written law that requires …’
(s 182) ‘… take control of, or make use of, any premises or property…’
(s 183) ‘take control of, or make use of, any vaccine or drug’
(s 184) ‘direct a person to do all or any of these —
(a) to remain in an area specified by the officer for any period specified by the officer;
(b) to remain quarantined from other persons for any period, and in any reasonable manner, specified by the officer;
(c) to undergo medical observation, medical examination or medical treatment or to be vaccinated, as specified by the officer;
(d) to undergo decontamination procedures within any reasonable period, and in any reasonable manner, specified by the officer.
Presumably s 184(a) could be a curfew as people could be directed to stay at home during given hours.
Notwithstanding my comment, above, regarding ‘natural’ disasters versus public health emergency, s 164 says:
(1) Nothing in this Part [dealing with public health emergencies] prevents the making of an emergency situation declaration or a state of emergency declaration under the Emergency Management Act 2005.
(2) The making of a declaration referred to in subsection (1) does not prevent the making of a public health state of emergency declaration under this Part.
(3) Nothing in this Part limits the operation of the Emergency Management Act 2005 section 8(1).
In other words, the event that constitutes a public health emergency can also constitute an emergency under the Emergency Management Act 2005 and vice-versa. If a declaration is made under the Emergency Management Act 2005 (WA) then all the emergency powers under that Act are also available.
The critical question is ‘could they assume control of private ambulance services (WA), could they cancel annual leave of private ambulance service employees’. I don’t see any specific power to that effect; there are powers to give directions to a public authority (ss 4 and 166) but I do not think St John Ambulance Australia (WA) would fall within that definition. Directing employees of St John would, in my view, be outside the powers listed in s 184.
The question of leave is clearly an industrial issue. The Fair Work Act 2009 (Cth) s 88 says ‘Paid annual leave may be taken for a period agreed between an employee and his or her employer.’ What rights an employer has to cancel previously agreed annual leave given the emergency would depend on the terms of employment and industrial law that is beyond my expertise.
St John Ambulance (WA) is a contractor to the WA government to provide ambulance services and is required to undertake ‘major incident planning and preparedness’ (Services Agreement Between State of Western Australia and St John Ambulance Western Australia Limited cl 4).
I cannot see that there is any specific power to ‘assume control of private ambulance services (WA) [or]… cancel annual leave of private ambulance service employees.’ However in a public health emergency I would imagine that private ambulance providers generally, and St John Ambulance (WA) in particular, will respond to requests from the government to be part of the public health response. As employers, and without being an expert in industrial law, then I imagine that the services as employers could move to cancel pre-approved annual leave to respond to the emergency.
Responding to emergencies is part of what state ambulance services are established, and in WA, St John Ambulance (WA) agrees, to do. I cannot see that the government would need to ‘take control’ of St John (WA) but that St John (WA) would willingly play its role in the emergency response.