Update August 31, 2020
An exposure draft Bill is now available and alarmingly it provides that covid19 may pose a material risk of substantial injury or prejudice to health of human beings (and therefore allow a state of emergency to continue) “even when the rate of community transmission of covid19 in Victoria is low or there have been no cases of covid19 in Victoria for a period of time”. Have medical facts been discarded in Daniel Andrews’ grasps for power?
So, even when infection rates reduce to zero the CHO can declare that a state of emergency still exists and can continue to impose restrictions on businesses and social life.
And the Bill provides that the CHO can exercise the power to impose emergency restrictions if he is “reasonably necessary”, not as at present when they are positively “necessary”.
“And it must be understood that the amendments sought will allow all future states of emergency to last up to 18 months without Parliamentary scrutiny. It is not just a temporary change for covid19. Any extension of emergency powers must be for the purposes of dealing with covid19 only.
by Terri M. Kelleher
As this article goes to press, Victoria is facing Premier Daniel Andrews’ bid to extend the period in which a state of emergency can be imposed.
He had announced that when the Parliament next sits on September 1 he would seek to amend the Public Health and Wellbeing Act (the Act) to extend to 18 months the period the Government can impose a state of emergency on Victorians to deal with covid19. This would mean a further 12 months in addition to the six months Victorians have already been subject to emergency powers.
He has extended the emergency powers six times since first declaring a state of emergency in March. Under the Act at present a declaration of a state of emergency can only remain in place for a maximum of six months.
It is the declared state of emergency that has given the Chief Health Officer (CHO) the power to mandate people to wear masks outside the home, limit the number of people at a public or private gatherings, and to maintain physical distancing.
On August 2, Victoria was also declared to be in a state of disaster under the Emergency Management Act, this declaration will expire on September 2. It ensures that police and other emergency services clearly have the power to enforce the restrictions.
As Police Minister Lisa Neville has said, it is to ensure that the Government has clear power to enforce restrictions: “For all those who want to test the police powers, this now puts out of doubt any of those police powers.”
VICTORIA: THE DISASTER STATE
After a month, a state of disaster has to be renewed, though it can be renewed indefinitely. If the proposed amendments to allow extension of restrictions under the Public Health and Wellbeing Act are passed, then it is likely that the Premier will declare another state of disaster to ensure police can continue to enforce any restrictions.
Overwhelmingly, Victorians have obeyed the restrictions. The spike in infections was a result of Government mismanagement and incompetence. Asking for an extension of emergency powers is an admission that they have failed to manage the situation: the hotel quarantine debacle, the outbreaks in workplaces such as Cedar Meats, the Black Lives Matter protest, the outbreaks in aged-care facilities. It is an admission that they have no plan beyond ongoing control.
A more measured approach would be to allow a further short state of emergency to be declared to allow the Government time to show that they have a plan to manage the virus. This should include milestones to measure a return to a reasonable normality and clear guidelines and protocols to be observed to contain transmission of the virus.
Any amendments to the Act should be specifically to allow a further state of emergency to be declared for the purpose of dealing with covid19 only, with such provisions to expire or cease to operate after the extension period. Then, if the Government is of the view that further extension is necessary, it should have to go back to the Parliament and explain to the Parliament and to the people of Victoria why the Act should be amended again to allow further periods of emergency to be declared.
This would allow necessary emergency measures and restrictions while requiring review after the expiration of the extension period to decide if they are still needed. However, it is questionable if this will happen as Daniel Andrews grasps for power.
Transparency, accountability and explanation of the need for restrictions should be prime objectives in declaring a state of emergency, under which the CHO has extraordinary powers to impose restrictions on the community.
During the covid19 emergency period, Parliament has not sat regularly nor has the Government sought bipartisan support for the emergency measures. There have been very carefully managed press conferences every day but the Premier has deflected more than answered questions from the media.
At a time when normal democratic processes are suspended, for the Premier to seek to extend emergency powers from six to 18 months was bound to cause a backlash of opposition.
There has been huge community opposition and most crossbench MPs have indicated they will not vote for a 12-month extension. It now appears that Mr Andrews may seek a shorter extension. It is being reported that that may be a three or six-month extension.
Mr Andrews has refused to outline a contingency plan. He has been reported as indicating that Victorians will just have to live with restrictions until a vaccine is developed. Will he continue to seek to extend emergency powers until a vaccine is available? Will the freedom and well-being of Victorian individuals and businesses be forgotten in Daniel Andrews’ grasps for power?
If infection figures continue to fall as they have, Victorians should be able to expect Mr Andrews to begin lifting restrictions.
Clear guidelines for managing the virus and a clear plan for a return to normality are what are needed. Not a draconian free pass to the Government to have unfettered emergency powers for another 12 months. Especially given its performance as Government of the state with the worst record in managing the pandemic. Perhaps his Cabinet should consider this as Daniel Andrews grasps for power at any cost.