As the latest step to try to deal with COVID 19 a state of disaster has been declared in Victoria. Normally I would write about what this means but on this occasion Anne Twomey, Professor of Constitutional Law at the University of Sydney has beaten me to it with this excellent piece in The Conversation Explainer: what is a ‘state of disaster’ and what powers does it confer? (August 2, 2020).
She says, inter alia,
The declaration of a state of disaster gives the police minister responsibility for directing and co-ordinating the activities of all government agencies. The minister may also allocate government resources as necessary to respond to the disaster.
The minister can direct government agencies to act or refrain from acting in particular ways to deal with the disaster. Such a direction prevails over anything to the contrary in any state law.
One of the most extreme powers the minister has is to override legislation. For centuries, it has been accepted in Australia and the United Kingdom that governments do not have executive powers to suspend or dispense with the application of the law set out in statutes.
In this case, however, it is a statute that is giving the minister, during a state of disaster, the power to declare that the operation of the whole or any part of an Act or legislative instrument is suspended.
Reassuringly, there are strict limits placed on this power. The minister can only exercise it if they believe compliance by a government agency with the provisions of an Act or instrument that prescribes the agency’s duties or responsibilities, would inhibit its response to the disaster.
Other relevant powers conferred on the minister include the power to control movement within, and entry into or departure from, the disaster area (which is the whole of the state) or any part of it.
Victoria also declared a state of disaster during the 2020 summer bushfires – see State of disaster in Victoria (January 2, 2020).
To the correspondent who asked me ‘Does a declaration of a State of Emergency or Disaster in Victoria really give the government enforceable powers or is it symbolic’ as I described in my post What is a ‘national emergency’? (December 25, 2019). The answer is yes, a declaration of a State of Emergency or Disaster in Victoria really does give the government enforceable powers. The difference between Victoria (and all the states and territories) and the Commonwealth is that the states and territories have emergency management legislation providing for a declaration and what it means. The Commonwealth does not.
Further correspondence will not be entered into
Correspondence about whether the Emergency Management Act 1986 (Vic) is in fact law and whether or not this is a good decision will not be entered into.
To those that want to write to me to argue that this action is contrary to the Australian Constitution, Magna Carta (1215) the Bill of Rights (1688), the Universal Declaration of Human Rights (1945), the Charter of Human Rights and Responsibilities Act 2006 (Vic) or some other rule, please don’t. It isn’t and even if it is, it doesn’t make it invalid (see Charter of Human Rights and Responsibilities Act 2006 (Vic) s 36(5); see also Common law rights v Parliament’s legislation (May 17, 2020)). If you really think there is an infringement of one of these rules, please take the matter up with the Victorian Supreme Court or the High Court of Australia and help develop the jurisprudence (see Challenging COVID restrictions – part 1 (April 23, 2020).
If you think it’s an overreaction as there have only been 208 deaths in Australia (as at 2 August 2020 at 4:01pm) then look at the numbers coming out of other countries. Remember that in the USA COVID has taken more lives than combat in WWI. If Australia’s death toll is relatively small it is because of action taken, not because the disease is not virulent. Pointing to the low death toll is like complaining about the money spent on fire mitigation if next year there is no major fire when of course the point of mitigation is to prevent or minimise the impact of the fire. The fact that there is no fire (or a low disease death toll) does not demonstrate that the action was or is unnecessary.
To those that want to write to me to argue that this is a gross over reaction to what is basically ‘the flu’ please don’t. Unless you have a PhD in epidemiology or medical science and access to all the information and advice that the Minister and the Chief Health officer have, your opinion is unhelpful.
And if you want to tell me that this is all a fraud by the UN, WHO or a secret new world government and the Bill Gates Foundation aiming to inject microchips via compulsory vaccination (noting that there is no vaccine for COVID-19) then I understand Bunnings has a new range of tin-foil hats – see https://www.facebook.com/watch/?v=321163975914746.
Well said Michael
Can a permanent state of emergency ever be implemented? If so what does this mean for the state and its people.
Certainly countries have done that. Of course if it is ‘for ever’ it is no longer an emergency it is business as usual. We’ve already seen in instances like the ‘war against terror’ and the NT intervention what are supposed to be emergency provisions end up getting built into the long standing law. That people can be taken off the street and held incommunicado because of a belief that they may have knowledge about a terrorist threat, that people can be held in custody indefinitely under immigration law, that people can be held in custody after the end of their sentence are all ’emergency’ measures that are now just part of Australian law.
“If you really think there is an infringement of one of these rules, please take the matter up with the Victorian Supreme Court or the High Court of Australia and help develop the jurisprudence”
until the Minister reads that:
“One of the most extreme powers the minister has is to override legislation. For centuries, it has been accepted in Australia and the United Kingdom that governments do not have executive powers to suspend or dispense with the application of the law set out in statutes.
In this case, however, it is a statute that is giving the minister, during a state of disaster, the power to declare that the operation of the whole or any part of an Act or legislative instrument is suspended.”
and realises he can just suspend the Supreme Court Act or whatever puny legislation you think gives you any rights at all.
Thanks Michael. Take due care.
The same people who believe CoVid-19 to be “just the flu” and who entertain these bizarre paranoid conspiracy theories, are possibly the same people wandering around refusing to get tested, not wearing masks, going out with symptoms, and spreading the disease. I hate restrictions as much as everyone, but if a brief period of draconian martial law needs to be enforced to get this under control in order to prevent further spread and save lives, then so be it.
In the long term, how long can the government keep in place these disaster declarations, I know they can renew every month as they see fit. Is this something they can keep going indefinitely?
Unlike the state of emergency declaration, this can only last 6 months max, can this then be renewed later on for the same emergency or is this then done and dusted?
The concern is that while this declaration is in place, parliament can be put on hold until such time as this can be challenged/debated, that can potentially be as long as the declaration is in place. (potentially years?)
This gives an incumbent government free will with no over-site from other elected members.
Could an election be deferred/canceled?
I don’t generally disagree with current actions in the short term, I do have an issue with our elected officials being given executive powers open to abuse and destruction of business, families, and lives beyond when a virus will either be gone (unlikely) or (most likely) will need to live with forever.
The Emergency Management 1986 (Vic) s 23(6) says ‘A declaration [of disaster] under this section remains in force for not more than one month, but another declaration may be made before, at or after the end of that period.’
The Public Health and Wellbeing Act 2008 (Vic) s 198(7)) says
A declaration [of emergency] under this section— …
(b) continues in force for the period not exceeding 4 weeks specified in the declaration;
(c) may be extended by another declaration for further periods not exceeding 4 weeks but the total period that the declaration continues in force cannot exceed 6 months.
I would infer that there is no ultimate limit to the declaration of a state of disaster under the Emergency Management Act. A new declaration could be made each month. Equally under the Public Health and Wellbeing Act, if at the end of 6 months a declaration could no longer be extended, a new declaration could be made if the relevant triggers still exist.
The question of elections is interesting. The Constitution of Victoria is itself an Act of the Victorian Parliament so presumably the Minister could suspend that. That would pose the problem that has been raised when Donald Trump suggested deferring the US election. Even if he could do that (he can’t) it would not stop his term of office coming to an end. Equally in Victoria it may be that if elections were deferred the term of office for the government would lapse in any event. I don’t know enough about Constitutional law or Victoria’s constitution to explore that in more detail.
In Emergency Powers in Australia (2nd ed, Cambridge, 2019), the authors say (at p. 68)
Finally, legislation which purports to confer executive power that would, in its exercise, unjustifiably interfere with or undermine the constitutionally-prescribed system of representative government, according to which members of the Commonwealth Parliament are to be ‘directly chosen by the people’ and the govern is to answer that Parliament will also be invalid.
That discussion is about the Commonwealth Constitution and the Commonwealth parliament so not directly applicable to Victoria. But the functioning of the states is an essential party of the Australian polity (see the discussion of the Melbourne Corporation Principle here – https://emergencylaw.wordpress.com/2014/02/12/united-firefighters-union-of-australia-ufu-v-country-fire-authority-cfa-2014-fca-17-31-january-2014/). The High Court may be persuaded, if a state parliament was ‘unjustifiably’ prorogued breached the democratic norms that are implied in the Australian Constitution and is therefore contrary to the national (not state) Constitution. We’ll only find out if a government tries to unjustifiably, rule without parliament.
Seems Dan might need your help.
Whatis your solution ?
solution to what problem?
Thank you I have been try to explained this to friends and you have done it in one article.
Strong parallels to the “state of emergency” declared in Germany in 1933. Parliament is suspended. Censorship of social media is easily compared to book burning. The police have almost unlimited new powers. Propaganda reigns. Concern at this time cannot be dismissed as mere conspiracy theory. I watch what they do not what they say……
Save that unlike Germany in 1933 there is a pandemic disease that as at 7 August 2020 has killed 709,511 people across the world and would have killed more in places like Australia and New Zealand if action was not taken.There was a demand during the bushfires of 2020 that the Commonwealth declare a national emergency even though greater legal powers is never going to stop a fire. But perhaps they can stop a pandemic? Absolutely we can be concerned about the impact on our democracy and economy and we should be – but none of that makes what has happened unconstitutional or unlawful. In any event causing significant loss of life governments would be and are criticised if they take no action because they hadn’t planned for it and passed relevant empowering legislation (again think of the Commonwealth during the fires) or said ‘we’re happy to let a lot of people die so other people don’t feel ‘put upon”.
Bleeding hearts often quote 700K deaths figure, but don’t seem to acknowledge the 35,700K deaths worldwide from all sources, they don’t seem to care much about the other 35M who have died, the global governments and media have successfully created a pandemic of fear and control for something that is only causing less than 2% of global deaths. Both the National and Global reaction is completely out of proportion with the risk. For example more than 160,000 people die in Australia every year anyway, including around100,000 over the age of 70, that’s almost 275 every single day! Enacting a State of Disaster when the data is looked at in comparison to “normal” times, just doesn’t make sense?
“If Australia’s death toll is relatively small it is because of action taken, not because the disease is not virulent” — what’s your source for this? Current evidence suggests otherwise; for example:
“Increasing COVID-19 caseloads were associated with countries with higher obesity (adjusted rate ratio [RR]=1.06; 95%CI: 1.01–1.11), median population age (RR=1.10; 95%CI: 1.05–1.15) and longer time to border closures from the first reported case (RR=1.04; 95%CI: 1.01–1.08). Increased mortality per million was significantly associated with higher obesity prevalence (RR=1.12; 95%CI: 1.06–1.19) and per capita gross domestic product (GDP) (RR=1.03; 95%CI: 1.00–1.06). Reduced income dispersion reduced mortality (RR=0.88; 95%CI: 0.83–0.93) and the number of critical cases (RR=0.92; 95% CI: 0.87–0.97). Rapid border closures, full lockdowns, and wide-spread testing were not associated with COVID-19 mortality per million people. However, full lockdowns (RR=2.47: 95%CI: 1.08–5.64) and reduced country vulnerability to biological threats (i.e. high scores on the global health security scale for risk environment) (RR=1.55; 95%CI: 1.13–2.12) were significantly associated with increased patient recovery rates.” (Chaudhry et al 2020)
Thank God, a fellow Victorian who doesn’t welcome out-and-out tyranny and dictatorial power with open arms.
To follow-up your comment:
“We know that wearing a mask outside health care facilities offers little, if any, protection from infection. ….. The chance of catching Covid-19 from a passing interaction in a public space is therefore minimal.”
New England Journal of Medicine, May 2020.
Meanwhile, mental health help-lines have seen a huge surge in calls for assistance, and it is now feared that suicides this year will overshadow deaths from the pandemic.
That toll will not be limited to this year, either: the crippling of the economy and high unemployment will have a significant effect on health outcomes for years. Throw in the fact that people fed on a non-stop diet of MSM hysteria have been too frightened to go to get cancer screening and other medical testing, and the toll goes higher again.
And all for a virus whose victims have a median age of 80 with significant co-morbidities, meaning we don’t even know how many died from CoVid-19, as opposed to with it. And that’s assuming their positive test for the virus was actually valid: a study in the US found that of 144 positive tests, 90 proved false.
The way to handle this is to protect the elderly and vulnerable, not embark on this horrendous and dangerous erosion of civil liberties.
But what do I know, I’m just a “tin-foil hat wearer”.
Thanks ADB. I’m glad that there are at least two of us. And thanks Michael for allowing our comments.
On a related note, it’s interesting that ‘excess deaths’ of all causes are so high this year. This suggests that there are thousands of uncounted COVID-19 deaths; or, in my hypothesis, the mitigation measures are killing more of us than the virus.
Social isolation and unemployment are strongly associated with all-cause mortality; for example:
Does the state of disaster confer any additional powers upon police to enforce CHO directions (or, as may be the case, directions from the Police Minister or others?)
Not as far as I can see.
Yes, but the Directions are still written in Public Health and Well being Act. When it can only run in a State of Emergency. See s 198 and s 199.
The Directions should be written by Hon Lisa Neville. Not by random Doctors under the Public Health and Wellbeing Act. So are all the fines legal?
The declaration of a state of disaster does not terminate the state of emergency under the public health Act; both can be in force at the same time – see Public Health and Wellbeing Act 2008 (Vic) s 198 and in particular s 198(9). So the Minister can exercise her authority under the Emergency Management Act and the Chief Health Officer can continue to exercise his powers under the Public Health etc Act.
With the State of Emergency only allowed to go on for 6 months since the 16th March 2020 will the State of Disaster powers override the 6 months limit in the Public Health Act? Just interested on how the directions will continue to be enforceable after 16th September 2020.
There are two seperate declarations, one under the Public Health and Wellbeing Act and the other under the Emergency Management Act. If one lapses the other will continue. But there is nothing to stop them declaring a new emergency the day the original declaration lapses or as the Premier has indicated they could amend the legislation to remove those limits:
(source: Rachel Clayton ‘Why Victoria needs both state of emergency and state of disaster powers to fight coronavirus’ ABC News (Online) (16 August 2020) available at https://www.abc.net.au/news/2020-08-16/victoria-state-of-emergency-disaster-explained-coronavirus/12563680?fbclid=IwAR0TCWe57ELikKx0toN0MyrIyIOqsJRDHtAjLcFejZbwlxdhQPdea2neCGU).
Hi Micheal, Thank you for your knowledge and expertise during this unprecedented time. I understand that the State of Emergency can be in effect for 6 months unless amended.
How difficult is it to amend the Public Health and Wellbeing Act 2008? Additionally, could the State of Disaster be used to accelerate the process of changing the Public Health and Wellbeing Act 2008?
How long the state of disasters can be declared?
If so what can we as the people do to stop these amendments if we do disagree?
I’m a big supporter of democracy and hope that the people get to have their voices heard in this issue.
I appreciate you taking the time to reply to all of these messages and hope that you and your family are doing well.
Amendment of legislation requires a Bill to be introduced to Parliament and it needs to go through the Parliamentary process of being approved by both houses. I don’t see how a State of Disaster could be used to accelerate that process – see my comment in response to ‘Steve’ above on the issue of elections and the need to maintain the states. Although the Constitution of Victoria is an Act of the Victorian Parliament I cannot see that a state of disaster could be used to create a new way to legislate. The discussion of how long the states of disaster can be in place are discussed in the various posts on this blog.
What can you do? If you think the actions being taken are not proportionate to the risk or otherwise unconstitutional you could seek a declaration from the Supreme Court or the High Court of Australia – see https://emergencylaw.wordpress.com/2020/04/23/challenging-covid-restrictions-part-1/. Further you can stand for election.
I don’t think it’s within the states powers to vote to change it. It’s not within there jurisdiction. There would have to be a referendum on it. The whole point of the tyranny rules / laws what ever it is. Is to make it impossible. For governments to do it at all
I don’t understand this comment – it’s not within the state’s power to change what? The only change that requires a referendum is a change to the Australian Constitution but that’s not what this post is about.
ADB I think you just spoke for millions there. Ive been thinking that word for word.
Tin foil hats at Bunnings.
that’s why they are so busy 😂lol
Michael, thanks for this clarity, much appreciated.
Based on your explanation and other pieces I have read, including having a go at the legislation I understand that a new state of emergency can be declared at 12:01am on the day after the previous one ends – is the process to do this especially onerous and time consuming?
I’m wondering if this is the reason why an extension is being sought.
Yes I cannot see why a new (rather than extension) cannot be made but I would suggest that the reason of seeking an amendment to the Act is to put such a declaration beyond challenge and in light of the claims by some that the Premier is trying to gain dictatorial powers (remembering that the declaration does not empower the Premier per se) it’s a way of confirming to the electorate that the extension has parliamentary approval and is subject to negotiation with the opposition. It would go some way to avoiding both political and legal objections that the intent of the current Act is being ignored and the law abused if the Parliament approves the extension. It is in fact consistent with a commitment to the rule of law and the supremacy of parliament. But of course I don’t know what is actually in the minds of the Premier or his advisors.
Just wondering if it is true that all other states do not have the same 6 month limit of the state of emergency like Victoria?
The state of emergency is under the Public Health and Wellbeing Act. Under public health legislation the time limits are:
ACT – 5 days but may be extended in the case of COVID-19 for 90 days and for other public health emergencies by 2 days but there is no maximum period in either case (ie it can be extended by up to 90 days multiple time (Public Health Act 1997 (ACT) s 119);
NSW – the relevant order is made under the State Emergency And Rescue Management Act 1989 (Public Health Act 2010 (NSW) s 8) and time limits under that Act are discussed below;
NT – a public health emergency declaration is in force for 90 days but can be extended but in each case by not more than 90 days (Public And Environmental Health Act 2011 (NT) s 50;
QLD – A public health emergency declaration is for seven days but may be extended by regulation for a period up to 90 days. There is no limit on the number of times the declaration may be extended (Public Health Act 2005 (Qld) ss 322 and 323).
SA – an initial declaration of a public health emergency is for 14 days but ti may be extended and there is no time limit on the length of any extension (South Australian Public Health Act 2011 (SA) s 87).
TAS – A public health emergency declaration may, in the case of COVID-19 be in force for not more than 12 weeks, and in any other case for not more than 7 days. Each may be extended by up to 12 weeks or 7 days respectively. There is no limit on the number of times a declaration may be extended (Public Health Act 1997 (Tas) s 15).
WA – a public health state of emergency declaration is force for up to 6 days but may be extended by up to 14 days. There is no limit on the number of times it may be extended (Public Health Act 2016 (WA) ss 168 and 170).
By way of comparison there are also time limits under emergency management legislation as follows:
NSW – a disaster declaration a 30 day limit but fresh declarations may be made made at the end of each 30 day period (State Emergency And Rescue Management Act 1989 (NSW) s 35).
NT – a state of emergency lasts for 3 days but can be extended but in each case by not more than 3 days; a state of disaster is for 7 days but can be extended but in each case by not more than 14 days (Emergency Management Act 2013 (NT) ss 20 and 22).
QLD – a disaster declaration is in force for not more than 14 days but can be extended in each case by not more than 14 days (Disaster Management Act 2003 (Qld) ss 66, 67 and 67A).
SA – a disaster declaration is in force for 30 days but may be extended by both House of Parliament for whatever period they consider necessary (Emergency Management Act 2004 (SA) s 24).
TAS – a declaration of a state of emergency must not exceed ‘12 weeks in the case of an emergency relating to disease in humans or animals; or … 2 weeks in any other case’. A declaration may be extended by the Premier as often as required but each extension cannot exceed those periods (Emergency Management Act 2006 (Tas) s 42).
VIC – a declaration of a state of disaster is in force for one month but can be extended (Emergency Management Act 1986 (Vic) s 23).
WA – a declared emergency situation or a state of emergency are both in force for only 3 days but can be extended (Emergency Management Act 2005 (WA) ss 51 and 57).
Does the current situation in Victoria give the Victorian Government overriding powers relating to the indefinite detention of Unlawful Maritime Arrivals held in Melbourne Immigration Transit? Minister Dutton has stated that he feels they are safer in the detention setting; does the SMO or Victorian Minister now have legal powers over this situation?
An interesting question – could the CHO order that persons stay there? Maybe if there was COVID in the detention centre but I imagine if the Commonwealth released them they could not be ordered to stay there as they have no right to be there. As in the lockdown of the towers there may have been an order for people to stay home but I don’t think there was or could be an order that people who did not live there had to stay there. Interesting questions I don’t know the answers (as it would depend on the circumstances) and it’s getting too far from the core of this blog for me.
Fascinated law student here.
Recently I have been researching into the emergency and disaster regimes that have been enacted within Victoria. I was curious to how these invoked powers have affected the doctrine of the separation of powers?
Looking forward to your response. Thank you so much
You’d need to give more details of what you think is the issue. Prime facie there is no conflict, the executive arm of government (the public servants, police, the Minister) are all exercising powers given to them by the legislature. To the extent that the Police Minister might seek to direct the courts of Parliament or suspend the Supreme Court Act or the Victorian Constitution then issues might arise. Compare the Victorian provision to the State Emergency and Rescue Management Act 1989 (NSW) s 36 which says ‘the Minister may direct any government agency to do or refrain from doing any act, or to exercise or refrain from exercising any function’ but the definition of ‘government agency’ specifically excludes the Parliament and the courts (s 3).
Thanks Dr Eburn. I have seen the idiotic argument doing the rounds that the amount of money spent fighting the virus divided by the fatality rate means per fatality, we have spent an inordinate amount of money. Its because we spent the money that the fatality rate is so low. As you correctly point out.
The other point you address is also a good one. That people with no medical knowledge or specialty are pronouncing on the virus and its virulence as if they are experts. I have often told such people that their ignorance does not equal experts’ knowledge.
The laws are invalid I have seen as well. Referring to the Federal Constitution and powers of biosecurity. Nothing about the Public Safety and Wellbeing Act at all.
Overall the Andrews Government has done a poor job on basic public education. I dont make them down too heavily as this is a multi faceted crisis. But there needs to be a back to basics campaign on both the health aspects of the virus and the legal grounds for the current action.
I also saw recently on Sky News, Pauline Hanson calling for the Governor to dismiss Daniel Andrews. There are no grounds to dismiss the Premier using the Reserve Powers. Yet more nonsense, there has been a lot to put up with of late.
Your comment about deaths in America was grossly inaccurate millions died and of that 116’00” in ww1 we’re Americans and at this present time of 170546. And as of yesterday CDC Declining only 6% of those deaths were actual covid deaths without any underlying immune issues. I am no academic as you can obviously see but writhing misleading information is not Constructive. .
FROM ABC FACT CHECK:
From Washington, D.C.
A misleading claim that the US Centers for Disease Control and Prevention (CDC) was forced to “admit that only 6 per cent” of reported COVID-19 deaths in the US were caused by the disease was removed by Twitter this week after being retweeted by President Donald Trump.
“This week the CDC quietly updated the Covid number to admit that only 6% of all the 153,504 deaths recorded actually died from Covid,” read the tweet, which was posted by a follower of the sprawling QAnon conspiracy theory.
“That’s 9,210 deaths,” the tweet said.
“The other 94% had 2-3 other serious illnesses & the overwhelming majority were of very advanced age.”
Fact checkers at PolitiFact reported that the claim appeared to have originated on Facebook, with some posts referencing a data table published by the CDC’s National Center for Health Statistics (NCHS).
That table contained figures, pulled from death certificates, relating to deaths from COVID-19 in combination with other conditions.
According to that data, COVID-19 was the singular cause of death listed on only 6 per cent death certificates.
But as NCHS chief of mortality statistics Bob Anderson explained to AFP Fact Check, all deaths in the data table had COVID-19 listed as the underlying cause.
According to the fact checkers: “Anderson clarified that while people can die of pneumonia they developed because of Covid-19, and both illnesses would be noted on their death certificate, their deaths are only counted once, as Covid-19.
“Often, comorbidities — when a disease or condition exists along with another disease or condition — are actually complications of Covid-19, Anderson explained.”
According to AFP, Mr Anderson also noted that listing only COVID-19 was a simplistic way of filling out death certificates, and was “not really appropriate” because “you rarely die of Covid-19 without it causing some type of complication
Hello I am writing to you in regards to all states and territories agreeing I assume to endeavouring to open their borders by xmas 2020 in agreeance with Prime Ministers Scott Morrison request. I am led to believe that Mark McGowan has no intention to do so.
So in reference to the Commenwealth of Australian Constitution 1900 the following is an excerpt from it.
117. Rights of residents in States
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
My point being is if all other Australian borders are open and people are allowed to move around Australia as per usual. Other then those within Western Australia die to Mark McGowans stance on this.
Is Mark McGowan denying me the privilege of moving freely around Australia like other fellow Australians will enjoy because they live in a different states and territories?
I am of the mindset that if other states and territories do not feel the need for closed borders. Essentially because the threat of COVid19 between states didnt warrant keeping the borders closed.
Therefore under 117 of the constitution I am entitled to the same luxuries as my other fellow Australians by being able to move about freely. Surely bias cannot be applied to myself or any other Western Australian when the constitution states that if we have certain rights in one state ot ahould be equal in all?
I apologise for taking up your time in regards to this matter and I am aware it would only be dependant on all other states opening their borders. Something which I am not confident of them doing as it does not serve the narrative they are following.
However I was just wondering if your expertise can shed some light on this.
I don’t claim to be a constitutional lawyer and I’m not over the case law dealing with s 117 but I’m sure your expectation of how it will work is oversimplistic. It cannot be the case that anyone can point to a law in another jurisdiction and demand that it apply to them if they think it is more favourable than the law in their home state. It is a fundamental part of the Australian polity that there are states and state laws have to apply according to their differences or the states would disappear.
If the WA law was no-one shall cross the border then residents in NSW and WA have the same restrictions even if residents in NSW can freely cross into Victoria. I would think that the sort of objection that may arise is if for example WA had a law that said ‘residents of Victoria could not cross the WA border’. There is talk of ‘bubbles’ eg between the ACT and SA but that would be about departure point and arrival not residency – so people could come from the ACT to SA regardless of where they normally reside. It would be different if there was a rule that said a resident from the ACT could travel to SA from Sydney, but a resident of NSW could not travel to SA from Canberra. But, as I say, I’m not familiar with the jurisprudence around s 117. I think I can safely say that it is likely to be more complex than you might imagine as my ANU colleague, Amelia Simpson explains in her paper “The (Limited) Significance of the Individual in Section 117 State Residence Discrimination” (2008) 32(2) Melbourne University Law Review 639.
The status of the WA border closures is before the High Court and no doubt we’ll learn more when the court hands down its decision
For more informed commentary on both ss 117 and 92 see https://www.abc.net.au/news/2020-04-23/fact-check-state-border-closures-australian-constitution-corona/12164440?sf237462434=1
I do not agree that the necessary provisions of the act relied upon ( Public Health and Wellbeing Act 2008), to invoke ’emergency powers’ have been fully, properly and lawfully complied with.
In particular I say the facts as reported to date do not show that circumstances of ‘ ..a serious risk to public health.’ exist now or have existed at any time in Victoria. ( s.198 refers)
Evidence in support includes the many years that killer flu infections have caused far greater risks to ‘public health’ and much greater number of deaths and all ministers and health officers decided at all relevant times that there has never been an ’emergency’ as set out in the relevant provisions of the act.
Furthermore the people stating that they are invoking the act are demonstrably the same people who failed to take all necessary and available action to protect all Victorians since they were warned in November 2019, ( Lancet of that month), and are the same people who did not act in accordance with the world’s best peer reviewed research for infection prevention which, (had that research been diligently followed), would have contained the virus infection to minimal case numbers and deaths and ,as such, those people are not fit and proper and suitable people able to invoke the provisions of the act relied upon.
But what you think is irrelevant. The issue is not whether you are satisfied that a public health emergency exists, but whether the Minister is so satisfied. The Minister has to consult with Emergency Management Commissioner and consult with the Chief Health Officer but he or she is not required to consult with you. Further I suspect that you do not have access to the information or advice that the various premiers, chief health officers and other world leaders have access to so the evidence you can find doing an internet search is not quite the same as the material they are relying on.
Equally the person who can make a declaration is the relevant Minister and the person them empowered is the Chief Health Officer. That Act does not require that you approve of them or that interpret and apply the science the way you would given that your profile would suggest you have no experience in medicine or public health.
Of course the decisions of those officers are open to challenge by way of judicial review. If you can demonstrate that their actions are beyond power or are Wednesbury unreasonable (that is ‘ so unreasonable that no reasonable authority would ever consider imposing it’) but given there’s worldwide consensus you may have trouble with that one. So if you want to challenge it take it to the supreme court.
I remind you what I said in my earlier post (https://emergencylaw.wordpress.com/2020/08/22/wheres-my-comment/)
“The law can only be applied to facts. On this blog I cannot test the facts. When a court delivers a judgement the judge or judges outline what facts have been established by the evidence. When people ask a question, they give facts that I accept – my answers are based on the premise ‘If these facts are true, the law says …’
With respect to the current COVID pandemic this blog is not the place to debate the science. It is a law blog not a blog on epidemiology or virology. I accept that there are such things as viruses; there is a virus called Severe acute respiratory syndrome coronavirus 2 or SARS-CoV-2; this virus causes a disease called COVID-19 and that COVID-19 is more than the ‘flu. I accept that the governments are acting on informed health advice and the Prime Minister, Premiers and Chief Health Officers believe in the need for the various control measures that are being imposed. If those assumptions are wrong, then of course the legal consequences will be different but there is no value writing to me to dispute those factual issues. The factual issues are out of scope for this blog.”
I think we all need to take a step back. We talk of facts. But lets talk of facts.
1. The CDC in America has stated that 6% of the reported deaths in America from “Covid-19″actually died of Covid-19. (See also instructions from deaths relating to Covid-19 from the Australian Government Bureau of Statistics to Medical Practitioners) . Many doctors (at the coal face) are saying that yes, Covid-19 is very contagious like all Corona Viruses. But like all Corona Viruses they are deadly for the unfit and elderly. They hardly affect the younger and basically fit population. Deaths for the flu virus (2017) is 1255. That is not accounting for Lower Respiratory Tract Infection, another 1500 odd. The WHO say dont wear face masks if you are fit and healthy. Wear face masks if you are in the high risk group. Lets use common sense. We have approximately 1000 less deaths in nursing homes this year to July than last year to July. And theres a lot the WHO doesnt know. And this lack of knowledge is passed on to our medical experts who are politicians and they close the economy down at great lateral cost in terms of other health issues and job losses. I notice that the people who tow the Government lines, all have nice cushy jobs and most of them are employed by the taxes of the very people that have lost their jobs and possibly houses. Do your research
A report today is that the Disaster declaration was signed by the deputy CMO
Is this legal
Double check the report – did it say disaster declaration or the stay at home directions? The CMO cannot declare a state of disaster.
Hi I would like to know if it’s in writing and if so can I see a copy of it that the chief health minister gave the decision to put the state in a state of emergency which then gave the premier powers that he has now
You have the order of things wrong. There is a state of emergency under the Public Health and Wellbeing Act. That was declared by the Minister for Health (s 198). That declaration gives the Chief Health Officer various powers (s 199) and the Chief Health Officer may authorise others to exercise emergency powers (s 200).
There is a declaration of a state of disaster under the Emergency Management Act 1986. That was declared by the Premier (s 23). That declaration gives the Minister for Police and Emergency Services various powers (s 24).
The Chief Health Officer did not make ‘the decision to put the state in a state of emergency’ – that was a decision of the Health Minister. That declaration does not give the Premier power nor does the declaration under the Emergency Management Act. The Premier may be the ‘front’ of the whole of government response, but he is not the empowered by either declaration.
Yes these declarations are in writing – for declarations of a state of disaster see https://emergencylaw.wordpress.com/2020/09/09/the-victorian-curfew/#comment-43730; for the current declaration of a public health emergency see https://www.dhhs.vic.gov.au/victorias-restriction-levels-covid-19.