State of Emergency: What is it?

The Tasmanian Government recently announced a State of Emergency under the Emergency Management Act 2006. While most people have probably heard the term State of Emergency, we thought it would be a good idea to provide a bit of legal commentary about what exactly is a State of Emergency and how it all works.

Before we get started, this article is not intended to be legal advice and will go into some depth about emergency legislation in Tasmania.

Since the outbreak of the COVID-19 pandemic, Tasmania has controlled its response via the Public Health Act 1997. This Act provides for the Director of Public Health to respond to notifiable diseases (of which COVID-19 was gazetted on 4 March 2020) and to respond to public health emergencies. Until today Tasmania was operating under a declared Public Health Emergency. The Director of Public health is given various powers to give orders regarding the control of notifiable diseases. Breach of the Director’s orders can give rise to fines or imprisonment. However, the Director’s powers are limited to health and preventing the spread of disease.

Shortages of basic household supplies have led to wider issues as key logistic systems struggle to keep up with panic buying. The CEO of Woolworths has recently told media that Australians are buying twice the amount of products usually purchased. The Prime Minister has recently condemned panic buying as “un-Australian”, however, many people see a legitimate need to purchase household staples in order to get through 14 days’ of social isolation, possibly even longer. The Public Health Act 1997 was never intended to deal with circumstances such as these or difficult times that have not yet been contemplated.

On 19 March 2020, Tasmania followed other states and declared a State of Emergency pursuant to the Emergency Management Act 2006 (Tas.). The Commissioner of Police and Secretary of the Department of Police, Fire and Emergency Management, Darren Hine, was appointed the State Controller. Commissioner Hine is now vested with the powers and responsibilities of the Emergency Management Act 2006 to protect Tasmanians from the pandemic. The Premier announced at the same time that the Director of Public Health will continue to advise the State Controller on matters relating to containment of the virus.

Section 42 of the Emergency Management Act 2006 provides that the Premier may declare a State of Emergency if he is satisfied that an emergency or threat of emergency is or has occurred in Tasmania and that the existing circumstances require special emergency powers. The Premier may continue the declaration of State of Emergency as long as there are reasonable grounds so to do.

There is a distinction in the Emergency Management Act 2006 between emergency powers and special emergency powers.

The State Controller may authorise the exercise of emergency powers if he is satisfied that an emergency or threat of emergency is occurring and there are reasonable grounds for exercising powers for the purpose of protecting persons from distress, injury or death or protecting property or the environment. The State Controller may authorise emergency powers whether or not a State of Emergency is declared. His authorisation is to specify, among other things, which authorised officers have emergency powers.

The State Controller may only exercise special emergency powers if authorised by the Premier.

Authorising emergency powers or special emergency powers and enforcing those emergency powers are two separate concepts. The enforcement of the emergency powers occurs through authorised officers as defined by Section 31 of the Emergency Management Act 2006.

According to Section 31 an authorised officer includes, among others, the State Controller, Regional Controller, Municipal Coordinator, Director SES, Commissioner of Police, Chief Officer TFS, CEO of Ambulance Tasmania, a member of a statutory service or any other person authorised by the State Controller in writing. This means that the State Controller can, for example, make security officers at Hobart International Airport authorised officers for the purpose of the Act. Likewise the State Controller may make Commonwealth officers authorised officers. It is important to note that SES, TFS and Ambulance Tasmania volunteers fall within the definition of “member of a statutory service” and therefore when authorised by the State Controller may be authorised officers under the Act.

The list of emergency powers and special emergency powers is contained in Schedule 1 & 2 respectively of the Emergency Management Act 2006.

The emergency powers contained in Schedule 1 are numerous and too broad to cover in an article such as this. These powers are designed to cover every conceivable type of emergency from bushfire to nuclear emergencies and tsunami. Relevantly the emergency powers allow:

1. The regulation of movement of persons into, within or out of Tasmania or any area in Tasmania or any premises
2. Detaining persons who the authorised officer suspects may be infected with biological material
3. Medical examination of a person suspected of being contaminated with biological material
4. Closure of a public street
5. Closure of any public place
6. Closure of a public event
7. Closure of any premises
8. Stopping and searching vehicles
9. An authorised officer to require a person to answer any question or to provide a document

The special emergency powers contained in Schedule 2 are far broader. In essence the special emergency powers permit three things:

1. The State Controller may direct that a resource of the State, council or any other person be made available for emergency management
2. The State Controller may require the owner of any resource to surrender the resource and place them under the control of the State
3. The State Controller may take any other action as he considers appropriate for emergency management

In practical terms special emergency powers permit the State Controller to do anything necessary to control the emergency. Examples may include seizing supplies of masks, gloves, cleaning supplies, medical supplies, or other equipment from businesses or individuals and providing those supplies to health care workers with a greater need for those supplies. The special emergency powers would also permit the State Controller to implement further rationing of food and cleaning supplies.

Other than to legally require quarantine in certain circumstances there is not any suggestion that these broad powers will be required, however, they are available if the situation worsens.

Section 60 of the Emergency Management Act 2006 provides that it is a criminal offence to fail to comply with the lawful requirement or direction of an emergency management worker or knowingly providing false information to that worker. The maximum fine is presently $16,800 or 3 months’ imprisonment. An emergency management worker includes a members of a statutory service (Police, TFS, SES, Ambulance Tasmania, council or government agency whose usual role includes emergency management), an authorised officer, or person assisting a under the direction of an authorised officer.

The keen observer may have noticed that having the Commissioner of Police as the State Controller may lead to a perception in the community of conflict of interest. The cynical may even think it inappropriate to have Tasmania’s top cop in charge of controlling special emergency powers that can lead to the control of movement or detention of citizens. In particular the power to require a person to answer a question or provide a document fundamentally infringes the right to silence and various privileges.

In response to these concerns, firstly, the State Controller’s decisions are monitored by our elected leaders, in this case the Premier who is accountable to parliament. Secondly, there is not any provision in the Emergency Management Act 2006 or Judicial Review Act 2000 that would prohibit an aggrieved person from seeking urgent judicial review or an order in the nature of prerogative relief. Put simply, the Supreme Court of Tasmania retains the power to protect the rights of individuals from executive power.

Unfortunately difficult times require difficult decision to be made for the greater good. The Emergency Management Act 2006 attempts to strike a balance between giving the Executive the powers they need protect society and the rights of the individual.

Alex Kendall is an associate at Phillips Taglieri. Alex practises in the area of civil and criminal litigation.