What does a state of disaster mean for human rights? – Aug 2020

On 2 August 2020, Victorian Premier Daniel Andrews declared a state of disaster in Victoria under the Emergency Management Act 1986. The Premier had previously declared a state of emergency in Victoria, on 16 March.

The August 2020 declaration of a state of disaster gives the Minister for Police and Emergency Services, the Honourable Lisa Neville, broad powers to make sure people are complying with public health directions. The declaration of a state of disaster coincided with the Premier’s announcement of Stage 4 restrictions in Victoria, which imposed further limits on people’s movements outside the home and introduced a curfew between 8pm and 5am.

If there is a disaster in Victoria, the Victorian Premier can declare a state of disaster in all or part of the state. This declaration could be made in response to natural disasters, accidents, a plague, epidemic or contamination, a warlike act such as terrorism, a hijack, siege or riot, or a disruption to an essential service.

Once a state of disaster is declared, broad powers are given to the Minister for Police and Emergency Services to respond to the disaster.

Beyond the practical changes that occur in a state of disaster, the declaration also has an important symbolic value – it makes clear to Victorians the gravity of the situation and the necessity of complying with government instructions during the disaster.

When a serious and dangerous situation occurs, the Premier may declare that Victoria is in a state of disaster and/or a state of emergency. These declarations are permitted by different pieces of Victorian legislation and can occur concurrently – the declaration of a state of emergency is a power under the Public Health and Wellbeing Act 2008, while the declaration of a state of disaster is permitted by the Emergency Management Act 1986.

A state of disaster is designed for the Premier to manage situations that extend beyond risks to public health – for example, natural disasters or warlike events. This provision was used for the first time in January 2020 during the bushfires.

Powers

There are differences in how a state of disaster and state of emergency operate. Under a state of emergency, the Chief Health Officer is given additional powers, while a state of disaster gives broad powers to the Minister for Police and Emergency Services and her delegates.

Duration

The state of emergency powers can only be in place for an initial period of four weeks, but this can be extended for further periods up to a maximum of six months. The state of emergency was first imposed on 16 March 2020 and so must be revoked by 16 September 2020. The Victorian Government is currently seeking to amend the Public Health and Wellbeing Act to extend the state of emergency for 12 months.

State of disaster powers can be in place for up to one month, but this period can also be extended. There does not appear to be any cap on the time the state of disaster can be extended for.

The declaration of a state of disaster gives the Minister for Police and Emergency Services broad powers to direct the activities of all government agencies and the allocation of government resources.

One of the most significant powers under a state of disaster is that it allows the minister to suspend the operation of pieces of legislation, in whole or in part, if the minister determines that that legislation could limit the government’s response to or recovery from the disaster. There are some limitations on this power – the minister must be able to demonstrate that the law inhibits the response to or recovery from the disaster, and it must be a law that outlines the functions, power, duties and responsibility of the relevant agency.

The minister can also take possession of any person’s property, and can control entry to, movement within or departure from the disaster area.

If a state of disaster has been declared, the Premier must report on the situation to both Houses of Parliament as soon as possible if Parliament is sitting, or, if Parliament is not sitting, as soon as possible after the next meeting.

Delegation of powers

The Emergency Management Act allows the Minister for Police and Emergency Services to delegate some powers. Under this provision, the minister can delegate any power or function to the Emergency Management Commissioner or ‘any other person’, other than the power of delegation.  It is unclear whether the minister has delegated any powers since the state of disaster was declared  by Premier Andrews on 2 August 2020.

The Emergency Management Act does not expressly reference Victoria’s Charter of Human Rights and Responsibilities. We are not aware of any announcements by the Victorian Government about the Charter’s operation during this period, so it appears that the Charter continues to operate alongside Victorian laws as usual. This means that public authorities must continue to comply with their responsibilities under the Charter.

As with a state of emergency, the declaration of a state of disaster may have some implications for Victorians’ human rights. Here are some examples:

• The state of disaster powers (section 24(2)) allow for restrictions on the movement of people in and out of a disaster area, which may include preventing Victorians from moving freely when and where they wish. This may impact the right to freedom of movement (section 12 of the Charter) and the right to liberty and security of a person (section 21).
• The state of disaster powers give broader powers to the Minister for Police and Emergency Services, to direct and control the response to the disaster. This might include giving power to Victoria Police to enforce the Chief Health Officer’s orders, for example, to move along crowds if physical-distancing rules are not being followed, including at protests, cultural events or places of worship. This could affect the right to peaceful assembly (section 16), cultural rights (section 19) and the right to freedom of thought, conscience, religion and belief (section 14).
• The state of disaster powers (section 24(2)(c)) allow the Minister for Police and Emergency Services to take possession of any property if it’s necessary to respond to the disaster. This could impact the right to privacy and reputation (section 13), the right protection of families and children (section 17) and property rights (section 20).

While all of these limitations are intended to limit the spread of COVID-19 and protect the health and life of Victorians, it’s important to remember that any limitation on Victorians’ human rights must be reasonable and justified.

Given the serious constraints on human rights in these circumstances, it’s critical for the Victorian Government to be constantly assessing and re-assessing the justification for the use of the state of disaster powers. We’ll be carefully monitoring how the government is exercising these powers.

There are some differences in how measures are enforced under a state of emergency and a state of disaster.

In a state of emergency, the Public Health and Wellbeing Act gives powers to ‘authorised officers’ – typically healthcare workers – to enable them to enforce emergency measures, such as detaining individuals or imposing restrictions on movement in emergency areas. The Act does not give Victoria Police express powers to enforce the emergency measures, though police have had the power to issue fines for offences made under the Act.

In contrast, in a state of disaster, the Emergency Management Act allows the Minister for Police and Emergency Services to delegate her powers to Victoria Police, as well as giving Victoria Police clear powers in an emergency. For example, this could give Victoria Police officers the power to:

• enforce the nightly curfew
• issue fines to people who breach the stay-at-home restrictions
• issue higher fines for people who should be self-isolating at home but are not complying with this requirement
• enforce restrictions on employees and employers attending the workplace (by stopping cars, checking permits and issuing fines)
• enforce a five-kilometre radius on people’s movements (by stopping cars and requesting information about where a person is travelling).

The Emergency Management Act also gives Victoria Police some other powers, whether or not a state of disaster is declared. It allows senior police officers to designate an area as an ‘emergency area’, if they determine that the size, nature or location of an emergency means it’s necessary to exclude people from that area.

This could involve closing a road, footpath or open space; stopping people entering or passing through a particular area; instructing people or vehicles to depart an emergency area by the safest and shortest route; or imposing conditions on anyone who is authorised to enter an emergency area.