What the heck is a Victorian "State of Disaster"?

A Simple Guide.

On Sunday, 2nd August, 2020 the Victorian Government invoked a "State of Disaster" across the entire state under s.23 of Emergency Management Act 1986. The Victorian Government was previously exercising powers under a "State of Emergency" as defined under the Public Health and Wellbeing Act 2008. These two States sound similar but have enormous legal differences.

August 2020 was only the second time in its 34-year history that a State of Disaster (SoD) has been invoked. The first instance occurred during the bushfires of January 2020, but the “Disaster Area” was geographically limited and specifically targeted devastated areas. SoD powers were available but not sought during the “Black Saturday” bushfires of 2009.

A very small number of elected and appointed individuals are provided with extreme powers that can be exercised unilaterally during a SoD. This, and its very rare invocation, implore us to understand the nature, powers and limits of the legislation. In this case it is also important to understand how it differs from the previous State of Emergency.

As legislation tends to be dense and difficult to access, I have attempted to simplify the key points. I very much believe that the foundational values of liberal democracies are best protected when citizens are well-informed, and so I thank you for reading this and sharing it widely if you find it useful.

I also welcome corrections and additions from legal experts and other specialists whose sophistication is no doubt greater than my own.

A State of Disaster requires an “Emergency”, but almost anything can qualify.

An “emergency” can include any event in Victoria that in any way threatens to endanger the safety or health of any person, or threatens to damage any property, or threatens to endanger an element of the environment. The phrase “in any way threatens” is a ground-level hurdle and almost anything can clear it rhetorically. You can play a fun game conceiving of the most absurd legally consistent event but most anything can qualify.

The Emergency also needs to be “significant and widespread”.

Having concurrent qualifiers is generally a strong protection. However, the boundaries of these definitions aren't clear. Right now, COVID-19 certainly presents a "significant" danger to life in Victoria, and it is “widespread” in Victoria overall. Yet many adjacent suburbs have few active cases and thus is is less obvious that the disease is "widespread" there. All are included in the SoD, and this may be justifiable because of the highly contagious nature.

Initially the declaration lasts for one month, but it can be extended indefinitely.

The Act specifically allocates a maximum of one month as an initial period. It then goes on to state that “another declaration may be made before, at or after the end of that period”. This is verbose legalese for “at any time”. There is no defined limit regulating how long a State of Disaster can continue. Contrast this with a State of Emergency in Victoria, which can be extended for 4 weeks at a time but is capped at 6 months.

Parliament isn’t a check or balance and the Premier only needs to inform it.

When parliament is sitting the Premier needs to inform both houses “as soon as practicable” about the SoD (but it must be gazetted more quickly). If Parliament is not sitting, as is the case now, the Premier must inform both houses “as soon as practicable after the next meeting of Parliament”. The parliament has no say on an SoD.

The Police Minister is the big boss (assuming the Premier doesn’t remove them).

The Police Minister has the sole power to direct and co-ordinate all activities of all government agencies, and can allocate all resources of the Government. That is one reason you will now see the Police Minister (and Police Commissioner) at press briefings.

How and what the Police Minister chooses to do is completely up to them.

The Police Minister can exercise all of the above powers unilaterally provided they consider it “necessary or desirable for responding to the disaster”. There are no checks or explicit limitations. There is no definition of "desirable".

Every government “Agency” is legally bound to enforce the Police Minister’s orders.

That’s in black letter law, and includes the Victoria Police.

The Police Minister can suspend any laws that conflict with their orders.

You read that right. In Victoria today an Executive – acting alone - can suspend statutes passed by the Legislature (parliament). This is exceptionally unusual in a democracy, to say the least. If the Police Minister decides that any existing Victorian Law, in whole or part, conflicts with their orders then they can unilaterally suspend that law. Consequently no Victorian can automatically rely on protection of their rights – human, property, or other, – under any Victorian Law during a State of Disaster. The suspended law remains suspended until the Minister decides it’s not suspended.

Conflicting laws don’t even need to be suspended and are set aside automatically.

If any SoD order conflicts with any existing law, the Police Minister needs not worry or even act. The new order automatically becomes the legally protected action and must be enforced. The exact language is plain: “the direction prevails over anything to the contrary in any Act or law”.

The Act specifically mentions the Minister’s power to use your property.

Although the Police Minister is not limited in their scope for issuing orders, a few possibilities are explicitly mentioned in the Act including their ability to “take possession and make use of any person's property as the Minister considers necessary or desirable for responding to the disaster”. The Minister can demand to use your house in any way they alone deem desirable, without consent from you, and without needing to address your objections. They must however compensate you and strangely, contesting the amount of compensation in VCAT is the one specified and protected legal right that citizens possess in these sections of the Act.

How does a State of Emergency compare to a State of Disaster?

* As per the terms of the Act but State of Emergency orders could be legally challenged under alternative laws such as The Charter of Human Rights and Responsibilities.

Let me be clear: I support the Stage 4 lockdown and do not want to wind it back.

I am not on the side of the selfish, the crackpots, the conspiracists, the grandstanders, or any others seeking to dispute or flout the rules or wind them back. We need to control this pandemic and to saves lives, and therefore the escalating infringements on our rights are sadly vital right now. I also do not believe anyone in this government in seeking to rule autocratically and I detest the use of the term "dictator" to describe an elected leader.

However, we must stay alert to just how much legal protection we are relinquishing.

Urgency and fear are no friends of liberty.

Let me finish by quoting the first African-American to sit on the US Supreme Court, the late, great Thurgood Marshall:

History teaches us that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.

We do not have Constitutional protections and a Bill of Rights in Australia to prevent the misuse of unfettered power. All we have is our own vigilance.