Human Rights Commissioner Questions WA’s Ongoing Use of State of Emergency Powers
By Alicia Bridges
There’s currently no limit on the number of times the WA government can renew the state of emergency.
As Premier Mark McGowan confirms the state of emergency in Western Australia is likely to continue beyond July, Australia’s Human Rights Commissioner is among those questioning the ongoing use of the powers that have been used to close borders, enforce quarantine, and require mandatory mask-wearing.
Mr McGowan on Monday said the government intended to extend its state of emergency, which has been in effect for more than two years, into the second half of the year.
“Having the capacity and the powers to do those things is important because you don’t want to have let it all go and then find you don’t have the capacity,” the Premier said on Monday.
Mark McGowan has regularly referred to health advice as the reasoning behind pandemic-related decisions.
But Australian Human Rights Commissioner Lorraine Finlay has concerns about the long-term use of state of emergency laws.
A state of emergency, as well as a public health state of emergency, has been in effect across WA since March 15, 2020.
Ms Finlay said the state of emergency provisions were never designed to be used on a rolling basis, as they have been in WA.
“At the start of the pandemic, when we didn’t have a lot of information about what COVID-19 was, or what the impact of the virus would be, you can understand the need for that quick and decisive action,” she said.
“The longer the situation goes on, the harder it is to justify the continuation of emergency measures.”
Unlike Victoria, where the government must now provide written justification for any pandemic orders such as new restrictions, the WA state of emergency laws do not require any written reasoning to be shared on the public record.
Australian Human Rights Commissioner Lorraine Finlay says governments need to provide more information to justify COVID-19 emergency measures.
Throughout the pandemic, the WA government has maintained that its decisions are based on the advice of the Chief Health Officer.
But Ms Finlay said the public should have more information about what that advice is.
“It’s not a matter of simply broadly saying the health advice required ‘this restriction’, but showing how the evidence requires that particular restriction in relation to that particular risk,” she said.
“And also showing that that restriction is the minimum required to actually respond to the emergency so that we’re not introducing overly broad restrictions.”
The state of emergency legislation is due to expire in July, but there are no limits on how many times it can be extended.
This contrasts with Victoria, where state of emergency provisions have time limits and cannot be continued on a rolling basis without returning to parliament.
This forced the Victorian state government back to parliament last year to develop its pandemic-specific legislation.
Victoria’s new legal framework, which replaced its state of emergency in December last year, requires leaders to table their reasoning for any pandemic restrictions in Parliament.
Separate parliamentary and independent committees must also review pandemic orders and provide advice to the health minister and to Parliament. That advice is on the public record.
Queensland’s Human Rights Commissioner Scott McDougall has suggested that state should follow Victoria’s lead.
But the West Australian government has maintained it needs the state of emergency laws to “introduce important directions based on health advice”.
“If these declarations are not extended, the directions that have been made for the purposes of managing the emergency, which includes both response and recovery, would no longer be available,” a state government spokesperson said.
The spokesperson said emergency powers were needed to enforce isolation, mask-wearing, capacity and density limits, and vaccination requirements.
‘More transparency needed’
But Meredith Blake, an associate professor at the University of WA School of Law, said the WA government’s approach of attributing COVID-19 restrictions to “health advice” was creating confusion.
“And yet different jurisdictions have done different things [based on health advice].”
Ms Blake, who researches and teaches health law and policy, said increased transparency would likely help reduce public frustration with decisions that affected their employment, their children’s education and their movements.
“So if there’s not only more transparency about the basis upon which the decisions are made … and transparency around what that health advice is … then that would really help people feel that there’s reasoning, there’s logic,” she said.
“There’s evidence behind the steps that are being taken and that they’re not just an exercise of executive of unbridled executive power.”
Ms Finlay said improving accountability was also important to prepare for the possibility of the next pandemic or similar event.