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Emergency Powers, Public Health and COVID-19

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Emergency Powers, Public Health and COVID-19 Emergency Powers, Public Health and COVID-19 Research Paper No. 2, August 2020 Holly Mclean and Ben Huf Research & Inquiries Unit Parliamentary Library & Information Service Department of Parliamentary Services Parliament of Victoria Acknowledgments The authors would like to thank Debra Reeves, Caley Otter, Meg Bosanko, Annie Wright and Marianne Aroozoo for their help in the preparation of this paper. Cover image source: freepik.com ISSN 2204-4752 (Print) 2204-4760 (Online) Research Paper: No. 2, August 2020 © 2020 Parliamentary Library & Information Service, Parliament of Victoria Research Papers produced by the Parliamentary Library & Information Service, Department of Parliamentary Services, Parliament of Victoria are released under a Creative Commons 3.0 Attribution-NonCommercial- NoDerivs licence. By using this Creative Commons licence, you are free to share - to copy, distribute and transmit the work under the following conditions: . Attribution - You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work). Non-Commercial - You may not use this work for commercial purposes without our permission. No Derivative Works - You may not alter, transform, or build upon this work without our permission. The Creative Commons licence only applies to publications produced by the Library, Department of Parliamentary Services, Parliament of Victoria. All other material produced by the Parliament of Victoria is copyright. If you are unsure, please contact us. Contents Executive Summary ................................................................................................................................ 1 Abbreviations .......................................................................................................................................... 2 Introduction ............................................................................................................................................ 3 1. Emergency powers: the broader landscape ...................................................................................... 4 1.1 What are emergency powers? ............................................................................................. 4 1.2 Emergency powers and democracy ..................................................................................... 4 1.3 Who is responsible? ............................................................................................................. 5 1.4 Emergency powers in Victoria and other states .................................................................. 6 Emergency Management Acts ...................................................................................... 6 Public Health Acts .......................................................................................................... 7 Declaring multiple emergencies .................................................................................... 7 1.5 The role of the Commonwealth Government ...................................................................... 8 Constitutional issues ..................................................................................................... 9 Nationalising emergencies? .......................................................................................... 9 2. Emergency powers and COVID-19 ................................................................................................... 10 2.1 International agreements................................................................................................... 11 2.2 Federal powers ................................................................................................................... 11 Coordinating a national health emergency ................................................................. 12 Coordinating COVID-19: Commonwealth responses .................................................. 15 Quarantine powers and the Biosecurity Act 2015 (Cth) ............................................. 18 COVID-19 as a human biosecurity emergency ............................................................ 20 2.3 Victorian powers ................................................................................................................ 23 Emergency management in Victoria ........................................................................... 23 Managing COVID-19 in Victoria ................................................................................... 25 Public Health and Wellbeing Act 2008 (Vic) ................................................................ 26 COVID-19 as a Victorian public health emergency ..................................................... 28 COVID-19 as a Victorian ‘state of disaster’ ................................................................. 34 3. Tensions and issues .......................................................................................................................... 35 3.1 Constitutional matters ....................................................................................................... 36 Border closures ........................................................................................................... 36 Biosecurity Act ............................................................................................................. 38 Financing emergency responses ................................................................................. 40 3.2 Rights and privacy .............................................................................................................. 41 COVID-19 and Victoria’s Charter of Human Rights ..................................................... 41 Biosecurity Act and human rights ............................................................................... 42 PARLIAMENTARY LIBRARY & INFORMATION SERVICE | Research Paper i 3.3 Emergency administration: centralising tendencies? ........................................................ 44 National Cabinet and the abolition of COAG .............................................................. 44 Challenging state and federal responsibilities ............................................................ 46 4. Other Jurisdictions ............................................................................................................................ 50 Appendix: Chronology of Directions made by Victorian Government in response to COVID-19 pandemic .................................................................................................................................................. 53 References ............................................................................................................................................. 61 Executive Summary The COVID-19 pandemic has caused a remarkable suspension of everyday life. In Victoria, as around the world, the source of that suspension has been the use of wide-ranging emergency powers to slow the spread of the virus.1 Many of these powers have never been used prior to COVID-19 or remain untested at law. While the 2020 pandemic has been a period of extraordinary social and economic upheaval, it has also been a significant legislative and constitutional event, testing the limits of emergency powers in Australia’s federal system. This paper describes and contextualises the kinds of powers used by the Victorian and Commonwealth governments during COVID-19. It is intended as both a resource that captures Victoria’s emergency response to COVID-19 and a primer on some of the wider issues potentially related to that response. The first section outlines the broader landscape of emergency powers in Victoria and Australia. Most modern democracies provide a range of special powers that set aside constitutional norms to respond to emergency situations and threats. As such, the use of emergency powers tends to raise vexing questions about the balance between the rule of law and security. In federal systems such as in Australia it also poses issues for the distribution of power between national, state and territory governments. In Australia, emergency powers tend to be provided for by state legislation, such as Victoria’s Emergency Management Act 2013 and the Public Health and Wellbeing Act 2008. The latter has been the source of the Victorian Chief Health Officer’s extraordinary powers during COVID-19. In recent years, however, the federal government has asserted its constitutional authority and responsibility in coordinating emergency responses to deal with crises that are increasingly national in scope. The second section maps how related legislation and administrative frameworks have been implemented in response to COVID-19 at international, national and state levels. The design and timing of Australia’s response is shaped by its commitment to the World Health Organization’s International Health Regulations, which informs Australia’s extensive intergovernmental emergency framework. COVID-19 has activated these national frameworks but also initiated significant administrative innovation, most notably the creation of a ‘National Cabinet’ that has enabled the federal government to lead a coordinated response. Widespread social and economic lockdown has been imposed through determinations made using emergency powers under the Biosecurity Act (at a Commonwealth level) and Victoria’s Public Health and Wellbeing Act (at a state level). The extent of the powers
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