Extending the state of emergency is a necessary step in the COVID-19 response

1 Oct 2020

Since a state of emergency was first declared on 16 March 2020, we’ve seen the Victorian government exercise a wide range of emergency powers to preserve public health – from restricting people’s movement to requiring people to wear face masks in public.

Despite the overwhelming public health justification for the use of these emergency powers, their impacts have not been easy for many Victorians. For many families, being unable to visit sick and dying relatives has caused significant hardship; people have been separated from loved ones and their support networks; religious communities have been unable to gather; education has been severely disrupted and the resultant economic impact will be long lasting. Strict quarantine requirements have restricted Victorians’ liberty, and limitations on peoples’ rights of protest and assembly have dampened democratic activity.

In August 2020, after nearly six months, the Victorian government reached a legislative cap on its ability to extend the state of emergency – under the Public Health and Wellbeing Act 2008, a state of emergency was limited to six months, prior to its recent amendment. Few of us knew about the state of emergency provisions in the Act prior to the COVID-19 pandemic, but the negotiations about extending these powers brought them into the public conversation across the state.

An important question underpinning these discussions: should the state of emergency be extended for a further six or 12 months, risking serious limitations on Victorians’ rights for a significantly longer time?

While we acknowledged the serious human rights implications of emergency powers, at the Victorian Equal Opportunity and Human Rights Commission we supported an extension of the state of emergency – as long as it accorded with the six key principles we had identified to guide the government’s response that are rooted in the Victorian Charter of Human Rights and Responsibilities.

The first principle concerns the necessity and proportionality of the response. Limiting peoples’ rights is only permitted if there is an important purpose, and where government actions are proportionate to achieve that purpose. It’s important that there is adequate evidence to justify any actions that limit rights.

Next, the response must be time-bound. Any measures that restrict human rights should only remain in place for as long as they are necessary.

The third principle we considered was the lawfulness of the response. Limitations must be consistent with Victoria’s Charter of Human Rights and Responsibilities and the Equal Opportunity Act 2010, both which remain in force during the pandemic.

Transparency is the fourth principle we considered. The government should provide accessible, timely, clear and comprehensive information about any measures that limit human rights in a way that the public can understand, including people with disability and people from culturally and linguistically diverse backgrounds.

The fifth principle concerns scrutiny. Upholding democracy and the rule of law during this public health crisis relies on scrutiny of the government’s response to COVID-19.

The final principle requires additional safeguards as part of the response. Wherever possible, preventative safeguards must be built into any action that limits people’s rights, to minimise the limitation on human rights, prevent abuse of any new powers and protect vulnerable people.

On balance, we considered that the six-month extension ultimately granted in the Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Act 2020 was consistent with these principles.

There is a strong evidence base for the extension, with the rate of community transmission providing a clear case for amending the law. Ministerial decisions to declare a state of emergency will continue to be based on medical advice from the Chief Health Officer, ensuring evidence remains a base for future decisions.

It’s also noteworthy that the extension is for a limited period. This extension of the time limit for a state of emergency applies only to the COVID-19 pandemic, can last only four weeks, and is capped at 12 months.

The amendment also increases the transparency of the provision of health advice – the Minister for Health must report to Parliament on the reasons for the extension of a state of emergency, including the public health risk and emergency powers exercised, and providing copies of the advice of the Chief Health Officer that justifies the extension. This requirement both embeds parliamentary oversight, and affords opportunity for public scrutiny.

The COVID-19 pandemic has illustrated the important balancing act governments must perform when protecting human rights, even in the face of extraordinary conditions. While government is afforded extraordinary powers to protect us, those powers are constrained by the need to afford people their rights to the greatest extent possible, and to ensure appropriate oversight and transparency of those powers.

The framework provided by Victoria’s Charter of Human Rights and Responsibilities has provided an invaluable mechanism for assessing that rights limitations are justified and proportionate, and that decisions are transparent and clearly communicated to all members of Victoria’s diverse community. And as government increasingly turns its thoughts to recovery, it will be critical that these same human rights principles continue to underpin the response.

Kristen Hilton
Former Victorian Equal Opportunity and Human Rights Commissioner