I wrote the post ‘What is a ‘national emergency’? (December 25, 2019) in response to the summer bushfire crisis. It was my view then, and remains my view, that those fires did not constitute a ‘national emergency’. In response to the current COVID-19 pandemic a correspondent has written, in response to that post:
I guess this issue will be raised again now that we have a pandemic. Having separate States coming up with their own response, but the public and media looking to the PM to solve it, results in a circular blame game. Is their capacity in times like this for the federal government to direct state departments?
Based on work I did for my PhD and published work (‘Responding to catastrophic natural disasters and the need for Commonwealth legislation’ (2011) 10(3) Canberra Law Review 81-102; Michael Eburn, Cameron Moore and Andrew Gissing, The Potential Role of the Commonwealth in Responding to Catastrophic Disasters (Bushfire and Natural Hazards CRC, 2019) I argue there are three situations that would meet the definition of a true national disaster. They are:
- A disaster is having impact on areas allocated to the Commonwealth by the Australian Constitution;
- The disaster is so large that it overwhelms the ability of state governments to function
- The disaster is truly national in character or impact so that it is ‘peculiarly within the capacity and resources of the Commonwealth Government’ to manage the response.
The sort of situation that is covered by (2) above is demonstrated by the impact of Cyclone Tracey on Darwin in 1974 that destroyed local administration. This event is not of that nature. But the current crisis would, in my view, fit scenarios (1) and (3).
The Commonwealth, under s 51 of the Australian Constitution has the power to make laws with respect to:
- trade and commerce with other countries, and among the States;
- taxation; but so as not to discriminate between States or parts of States;
- borrowing money on the public credit of the Commonwealth;
- the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
- foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
- the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;
- immigration and emigration;
- external affairs;
- the relations of the Commonwealth with the islands of the Pacific;
All of those powers (and perhaps others that have been omitted from the list, above) are relevant here. Quarantine, determining who can enter or leave the country, meeting our obligations to other nations to be part of the national response all make it clear that this event is very much a matter of direct interest to and an emergency for the Commonwealth.
Secondly the size of the event, the fact that it is not restricted to state boundaries, the need to use the military and other commonwealth assets and the impact on the national economy (see Pape v Commissioner of Taxation  HCA 23) mean this is indeed a national emergency.
Unlike natural disasters (eg bushfires) the Commonwealth does have relevant legislation. The Commonwealth legislation is the Biosecurity Act 2015 (Cth). That Act provides for the declaration of a Human Biosecurity Emergency (Chapter 8, Part 2) which gives extensive powers to the Health Minister.
There is capacity for the Commonwealth to direct the states where that is provided for in the Act and where that can be implied as part of the Commonwealth’s executive power to manage the disaster. Section 109 says that where there is an inconsistent law the Commonwealth will prevail.
But power and how you make decisions are different matters. We have the ‘national cabinet’ which we are told is the PM and state and territory Premiers and Chief Ministers. The states still exist and employ the doctors and nurses, run the hospitals and have their own public health laws. Believing that you could manage this event ‘by direction’ would I suggest be unwise. Working with the states and communities is the only effective way to proceed.
This is a national disaster and the response is being led by the national government. The relevant disaster declaration has been made. The states still exist, so I don’t think the Commonwealth could order the state premiers not to appear on TV nor do I think the Commonwealth can manage this event on its own. The Commonwealth does have the power to direct the states in the areas of its constitutional responsibility.