Premier Daniel Andrews wants to extend the time limit on a state of emergency being in place in Victoria by 12 months.
The move has turned into a bunfight with political opponents calling it a power grab while lawyers are worried about the continuing imposition on human rights.
The Premier, meanwhile, says the extension is just a logistical exercise that allows the Chief Health Officer, Brett Sutton, to easily access powers to change the restrictions during this pandemic.
So what are these powers? What’s a state of emergency? And what’s the problem with extending it?
What is a state of emergency?
A state of emergency was declared under the Public Health and Wellbeing Act in March to deal with the coronavirus pandemic and since then has been extended six times.
A state of emergency gives the Chief Health Officer wide-ranging powers to put in place the restrictions with which we are all now too familiar – rules such as wearing face masks and staying home, isolating people with COVID-19 and detaining people in quarantine.
“They are all things that can only be declared under a state of emergency so, yes, those powers would be lost if that state of emergency wasn’t in place,” Sutton has said.
Under Victorian law, a state of emergency may be extended by four weeks but the total period cannot exceed six months.
Why the extension – and what is being extended?
Why? Because the pandemic is not over and there could be more outbreaks at any time. Also, the current six-month-long state of emergency is due to expire on September 13.
The Premier wants to introduce a bill to Parliament (in the week starting August 31) to extend by 12 months the time limit for the state of emergency. But even though the upper limit would be 12 months, he said he would extend a state of emergency only by a month at a time. In other words, he wants to make it possible – but not inevitable – for a state of emergency to exist for 12 months on top of the six that has already been in place.
Without a state of emergency, the Premier says introducing new measures to deal with the virus could take “weeks or months to pass through Parliament” and “in a health crisis like this, where the situation changes daily, that just isn’t workable”.
Andrews says the law wasn’t written with such a prolonged and infectious virus in mind.
“It’ll be in place not a day longer than it needs to be,” he has said.
The Premier has said an extension would also bring Victoria into line with other states. “Other states are able to to extend and extend and extend further. They don’t have any limits. We, under these arrangements, will simply continue the existing set of tools, if you like.”
Each state and territory has different periods of time that a state of emergency can operate for but no limits on how many times it can be extended.
The current proposed extension in Victoria would have to go through Parliament and would be voted on in the upper house where MPs are already signalling they’d oppose it, although there was support among crossbenchers for extensions of three or six more months.
So would that mean we’re in lockdown for another year?
The Premier says no and nor does it mean a state of emergency would last a year either. The Chief Health Officer would have to extend lockdown as a separate measure – it doesn’t automatically follow from being in a state of emergency. Restrictions have already moved from stage three to stage four, for example, all under a state of emergency.
The Premier has flagged that rules will change as time goes on. “Once we get those numbers down, we will be able to have an easier set of rules,” he has said.
So what’s the problem?
The state of emergency gives the chief health officer and the government significant powers – and the proposed extension of those powers is not sitting well with some. Former Liberal premier Jeff Kennett called the Premier a “megalomaniac” while Opposition Leader Michael O’Brien said the extension could mean Victorians were locked up for another 12 months and away from their jobs. He said democracy, accountability and transparency would also suffer.
Human rights lawyer Felicity Gerry, QC, says an extension is problematic. “The approach that the government has to take has to be proportionate and accountable, which requires a great deal more public engagement then we’re currently seeing,” she says.
She says while the government imposed emergency laws to protect people from infection the laws themselves shouldn’t compromise the right to health. The longer lockdowns go on, she says, the more it affects people’s wellbeing. “We are now at the point where people are being seriously affected by measures that are supposed to be protecting us,” she says.
In her view, the emergency powers shouldn’t be in place for longer than a six-week period and a review of how the powers were operating needed to be done at least every month.
Civil rights organisation Liberty Victoria says the government is effectively writing itself a blank cheque with a 12-month extension, which is inconsistent with the preservation of human rights. They backed the call for four-weekly reviews to ensure limits on human rights and freedoms would continue only where necessary, called for Parliament to resume sitting as soon as possible and urged for a standing committee to be formed so the public voice could be heard.
But the past president of the Australian Medical Association, Tony Bartone, said the extension was a necessary logistical manoeuvre.
“It wasn’t a signal that [Victoria] was going to extend the current lockdown – and perhaps that’s how some people interpreted it – but it is about having the necessary ability to allow the Chief Health Officer’s directives to be enforced,” Dr Bartone told the Today Show.
He said he appreciated the call caught people by surprise, with the stage four lockdown taking its toll psychologically on Melburnians.
“It is a journey of faith, it is a journey of getting to the other side, and we all have a part to play – and we have to be very careful about the way we introduce new measures and take everyone along with us,” Dr Bartone said.
What is the difference between states of emergency and disaster?
Victoria has both a state of emergency and a state of disaster in place. The state of disaster, which expires on September 2, grants additional powers to the Minister for Police and Emergency Services, Lisa Neville, to control and restrict entry, movement within and departure from a disaster area – in this case, the whole state – and to direct government agencies and allocate resources to enforce these restrictions.
The legislation says a state of disaster lasts for a month, but it can be extended. We don’t know whether the current state of disaster will be extended.
Tammy Mills is the legal affairs reporter for The Age.