Today’s correspondent is

…  concerned about the sweeping changes affecting the liberties of many people in our communities in relation to the current pandemic situation as it is reported in the media and by politicians. Whilst it is accepted that it may be prudent to act with caution in the face of a reported pandemic, we believe that this obligation needs to be balanced against the requirements of the framework for making laws enshrined in our Commonwealth Constitution. The making of laws on the run at the whim of a Prime Minister and his cabinet, or a State Premier would seem fraught with danger and could lead us into a police state situation by default. Once liberties are surrendered, it is not always an easy thing to get them back…

My question to you is, are there any provisions in law that enable both the Federal Government and /or the States to make laws on the run under special circumstances such as we find ourselves in at present?

As far as I can see governments are not making laws ‘on the run’; they are using laws that have been in place for many years.  In NSW they are making orders under the Public Health Act 2010, the Commonwealth is relying on the Biosecurity Act 2015.

According to Maddocks Solicitors ‘Understanding the legal framework behind the government’s public health response to COVID-19 (31 March 2020):

Although there is a national human biosecurity emergency, a state of emergency has not yet been declared in NSW under the State Emergency and Rescue Management Act 1989 (NSW). In comparison, all other states and territories have made an emergency declaration.

The oldest emergency management Act that is still in force is the Emergency Management Act 1986 (Vic).

All of these Acts had predecessors.  Emergency management legislation and emergency powers have been in place for many years starting with public health Acts modelled on the UK Act of 1848.  The oldest NSW public health Act listed on AustLII is the Public Health Act of 1896.

What follows is not that the governments are making ‘laws on the run’ but that they have enacted legislation in anticipation of such an emergency and they are now relying on that legislation.

Where there has needed to be legislative change Parliaments have come together to make those changes – see COVID-19 and parliamentary sittings (current as at 2 April 2020).  There is no time limits, or time restraints, on how long it must take a motivated parliament to make a law.

There may be ways to challenge the laws and orders. One could argue that there is no such emergency, that the governments are trying to use it to expand their power inappropriately. That was the argument in Pape v Commissioner of Taxation [2009] HCA 23.  Four High Court judges found that the Global Financial crisis was a national emergency because the point was not argued. The dissenters were cautious that the executive government should not be allowed to expand its power by saying something is an emergency.  Heydon J, in dissent, said (at [551]):

The truth is that the modern world is in part created by the way language is used.  Modern linguistic usage suggests that the present age is one of “emergencies”, “crises”, “dangers” and “intense difficulties”, of “scourges” and other problems.  They relate to things as diverse as terrorism, water shortages, drug abuse, child abuse, poverty, pandemics, obesity, and global warming, as well as global financial affairs.  In relation to them, the public is endlessly told, “wars” must be waged, “campaigns” conducted, “strategies” devised and “battles” fought.  Often these problems are said to arise suddenly and unexpectedly.  Sections of the public constantly demand urgent action to meet particular problems.  The public is continually told that it is facing “decisive” junctures, “crucial” turning points and “critical” decisions.  Even if only a very narrow power to deal with an emergency on the scale of the global financial crisis were recognised, it would not take long before constitutional lawyers and politicians between them managed to convert that power into something capable of almost daily use.  The great maxim of governments seeking to widen their constitutional powers would be:  “Never allow a crisis to go to waste.”

That is Heydon J was concerned that in the absence of any legislative authority (as was the case then) a declaration by the Prime Minister that this is a ‘national emergency’ and for the Prime Minister to then seek to exercise some national authority would be to extend the power of the Commonwealth beyond that provided for in the Australian Constitution.  See

Even with legislation (as with the Biosecurity Act 2015 (Cth)) one could try to argue that the necessary facts to establish an emergency under whatever legislation is being used has not been established or that the response to the extent that it infringes fundamental rights and liberties is disproportionate.  I think that would be a hard argument to make given the worldwide consensus on the response – this is not just one government making these calls, it is every Australian government with bi-partisan support and as far as I can see every national government.  The High Court would be likely to give a wide range of discretion to the governments relying on advice from the World Health Organisation and the chief health officers.  I cannot imagine the High Court really getting into trying to weigh up the entire world evidence against claims by people who have been able to look up numbers on the internet and argue, as my correspondent does:

According to the WHO, in 2019 there were 5 million cases of the flu virus world wide and 650,000 deaths. The common flu is far deadlier than the novel Corona Virus and governments did not shut down economies nor curtail people’s liberties.

The current leaders of WHO and public health officials know those figures; I don’t think a court would accept an internet search as proof that was is being done is disproportionate.  And remember in balancing rights, we don’t have rights enshrined in our constitution and internationally recognised rights (except the right to life) can be balanced against competing interests – see Facemasks, beards and COVID-19 (March 26, 2020).

I agree that it is concerning that there is no parliamentary oversight.  In my PhD I argued that Australia should have emergency legislation based on the Canadian model where the Parliament can set aside a declaration of emergency and where there is parliamentary scrutiny, after the event on what action was taken and whether it was justified by the emergency. But Australia does not have that legislation (but perhaps it will after the findings of the Royal Commission into National Disaster Arrangements).


What we are seeing here is not ‘law making on the run’ but the execution of a plan. Governments since at least 1848 have seen the need for emergency powers to deal with a public health crisis and have put in place legislation to do what they are now doing. The fact that people did not know the legislation was there doesn’t mean it is a conspiracy, lots of legislation is in place that people who don’t work in a field don’t know about. The legislation has been there, it’s been passed by parliament and it has been publicly available. Public health officials who have been warning of and planning for events like this for a long time knew it was there and are now using it – not making ‘laws on the run’.

And if governments need to make laws, they cannot do it ‘at the whim of a Prime Minister and his cabinet, or a State Premier’. Parliaments are still meeting when they need to in order to pass legislation when that is required.

The question was ‘are there any provisions in law that enable both the Federal Government and /or the States to make laws on the run under special circumstances such as we find ourselves in at present?’  It should have been ‘are there any provisions in law that enable both the Federal Government and /or the States to make orders restricting liberties under special circumstances such as we find ourselves in at present?’  The answer to that question is clearly ‘yes’.

If my correspondent wants to argue that the necessary conditions set out in the legislation relied on by each jurisdiction have not been met, or the overriding of rights is disproportionate to the need ‘of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society (Universal Declaration of Human Rights, Art 29(2)) then they should feel free to make an application to the High Court of Australia.  I’m sure Australia’s lawyers would be most interested in the outcome, but I’d be betting on the Commonwealth to win.