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.