Ruqayyah Snyder
Australia's Constitution, enacted in 1901, grants states the authority to invoke police powers and declare states of emergency. This allows them to override any law, including human rights protections, and issue directives as they deem necessary. While certain rights are non-derogable and cannot be suspended, other liberties may be restricted in the name of public health or disaster response. The COVID-19 pandemic and bushfires have brought these emergency powers into sharp focus, with states imposing quarantines, prohibiting gatherings, and restricting movement. This has sparked debates about the balance between public welfare and individual freedoms, and the potential for government overreach.
| Characteristics | Values |
|---|---|
| Declaration | A state of emergency can be declared during a natural disaster, civil unrest, armed conflict, medical pandemic, or epidemic, or other biosecurity risks. |
| Powers | The ability to override any law, including supposed human rights protections, issue orders and directives, and arrest anyone who fails to comply. Powers also include entering or taking possession of property, shutting down essential utilities, closing roads, and ordering evacuations. |
| Jurisdiction | The 1901 Australian Constitution gives states authority over police and emergency services, allowing them to invoke police-state powers. |
| Legal Remedies | Citizens can apply to the High Court of Australia if they believe their rights have been disproportionately overridden. |
| Limitations | Certain rights are non-derogable and cannot be suspended, even in a state of emergency. |
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What You'll Learn
The Australian Constitution Law 1901
The Australian Constitution, also known as the Commonwealth of Australia Constitution Act 1901, came into effect on 1 January 1901. It was drafted between 1891 and 1898 by representatives of the six self-governing British colonies in Australia: New South Wales, Victoria, Queensland, Western Australia, South Australia, and Tasmania. The final draft was approved by each state in a series of referendums from 1898 to 1900 and was enacted as an act of the Parliament of the United Kingdom.
The Constitution is the primary source of Australian constitutional law, but it operates alongside constitutional conventions, state constitutions, the Statute of Westminster 1931, the Australia Acts 1986, prerogative instruments, and judicial interpretations of these laws by the High Court. Under traditional legal theory, the Constitution is binding due to the UK parliament's authority over Australian law. However, some members of the High Court and academics argue that it derives its authority from the Australian people.
The Constitution grants certain powers to the states, including authority over police and emergency services, allowing them to invoke police-state powers. This has been utilised in recent times to override any law, including human rights protections, during declared states of emergency. For example, during the bushfire crisis, the New South Wales and Victorian governments exercised their powers to issue orders, make arrests, and shut down essential utilities.
While the Constitution does not explicitly mention a state of emergency, it is important to note that certain rights are non-derogable, meaning they cannot be suspended even during emergencies. Australia has not exercised its derogation power under Article 4 of the ICCPR.
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Police-state powers
Australia's 1901 Constitution grants states the authority to invoke police-state powers during emergencies. The New South Wales and Victorian governments have used this power in recent times, allowing state premiers, police chiefs, and other authorised officers to override any law, including human rights protections. They can issue directives such as restricting the movement of people and vehicles, closing roads, controlling or making use of any place, vehicle, or other things, and evacuating people from the declaration area. These directives can disproportionately affect vulnerable communities, including Indigenous communities.
During the bushfire crisis in 2020, Prime Minister Scott Morrison sought to expand the federal government's powers to declare states of emergency and deploy the military without state consent. He emphasised the need for the Commonwealth to respond to national emergencies and disasters, even testing the limits of constitutionally-defined roles. This move was criticised as an attempt to suppress unrest and a power grab in the face of a political crisis.
In Western Australia, the state government has faced criticism for its repeated extensions of the state of emergency, which has been in effect since March 15, 2020. The government has used this period to implement measures such as border closures, mandatory mask-wearing, and pass requirements to enter the state. The recent legislation further concentrates power in the hands of the police commissioner, removing the need for parliamentary oversight in declaring a state of emergency. This shift raises concerns about the potential for authoritarian rule and the erosion of individual liberties, as warned by economists and philosophers like Friedrich Hayek and Benjamin Franklin.
While emergency powers enable the state to act outside constitutional norms, it is important to note that constitutional law experts observe that these powers are terminated when normalcy is restored. Additionally, certain rights are non-derogable, meaning they cannot be suspended even during a state of emergency. Individuals can also challenge the overriding of rights by applying to the High Court of Australia, which serves as a check on the use of emergency powers.
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Human rights protections
Australia does not possess a bill or charter of rights. However, the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires all new bills and disallowable legislative instruments to be accompanied by a statement of compatibility addressing the rights and freedoms recognised in international human rights law.
In the context of the COVID-19 pandemic, technology law expert Gordon Hughes found that the amendments made to the Privacy Act sufficiently protected the rights of individuals using the contact-tracing app in line with Australia's commitment to human rights charters. The safeguards include:
- A clear explanation of how contact tracing will be used and a clear statement of the limited purpose for which information is collected
- Coercion of the public or employees to download the app is not permitted
- Data storage will be secure, with offshoring of data storage prohibited
- Contact data will not be retained for more than 21 days
- Oversight of the laws by the Office of the Australian Information Commissioner
- Opportunities for individuals affected by a breach to seek a remedy
- Clarification that State and Territory health authorities are captured by data use restrictions
However, the Commonwealth Government's exercise of special powers under the Biosecurity Act has attracted scrutiny. Prior to a state of biosecurity emergency being declared on 16 March 2020, the Law Council of Australia warned that the authorised officers' exceptional powers to issue biosecurity control orders "do not have the types of safeguards and independent oversight protections" afforded to law enforcement and security agencies in their exercise of coercive powers.
Under the 1901 Australian Constitution, the states retained authority over police and emergency services, giving them access to invoke police-state powers. The legislation activated by the New South Wales and Victorian governments allowed state premiers and/or police chiefs to override any law, including supposed human rights protections, issue orders and directives, and arrest anyone who failed to comply.
While Australia has not exercised its derogation power under Article 4 of the ICCPR, certain rights are non-derogable and cannot be suspended even in a state of emergency.
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Non-derogable rights
In Australia, the 1901 Constitution grants states the authority to invoke police-state powers and declare states of emergency. This enables state premiers and/or police chiefs to override any law, including human rights protections, and issue orders that must be obeyed. However, certain rights are non-derogable, meaning they cannot be suspended even during a state of emergency.
The right to life is another critical non-derogable right. While it is not considered an absolute right, as a state can lawfully use lethal force in specific circumstances, strict rules and safeguards must always be observed, even during emergencies. Similarly, the right to freedom of religion is non-derogable, although it may be subject to limitations in its application.
In the context of Australian emergency law, concerns have been raised about the impact on individual liberties. While Australia's constitution does not guarantee freedom of movement, the imposition of restrictions during the COVID-19 pandemic and natural disasters like bushfires has sparked debates about the balance between public safety and individual rights.
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State of disaster
In Australia, a state of emergency can be declared during a natural disaster, civil unrest, armed conflict, medical pandemic or epidemic, or other biosecurity risks. Under the 1901 Australian Constitution, states have the authority to invoke police powers and override rights, including supposed human rights protections. However, certain rights are non-derogable and cannot be suspended even during a state of emergency.
In February 2024, the NSW Reconstruction Authority (RA) published Australia's first State Disaster Mitigation Plan (SDMP). The SDMP outlines actions to reduce the risk of natural hazards and improve disaster preparedness and response. It identifies areas at higher risk of natural disasters, such as floods, bushfires, storms, cyclones, and coastal erosion. The plan also includes strategies to enhance community awareness, infrastructure development, and funding for mitigation efforts.
The SDMP is a proactive approach to disaster risk management, aiming to reduce the impact of disasters and the associated costs. It is a dynamic plan that will be refined and updated based on ongoing feedback and evolving knowledge. By 2026, the next iteration of the SDMP is expected to incorporate new insights and adaptations.
Australia also plays a significant role in international disaster response and humanitarian assistance, particularly in the Indo-Pacific region. The Department of Foreign Affairs and Trade (DFAT) leads the Australian Government's response to international crises, coordinating with the National Emergency Management Agency (NEMA) to deploy domestic disaster response capabilities. Australia's International Development Policy of 2023 reflects the country's commitment to addressing global challenges, including exacerbated climate hazards, by investing in disaster risk reduction and enhancing resilience.
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Frequently asked questions
Yes, a state of emergency can override constitutional rights in Australia. Under the 1901 Australian Constitution, states have authority over police and emergency services, allowing them to invoke police-state powers. This includes the ability to override any law, including supposed human rights protections.
During a state of emergency, states can issue orders and directives, arrest those who fail to comply, enter or take possession of property, shut down essential utilities, close roads, and order evacuations. The police minister is responsible for coordinating the activities of all government agencies and allocating resources as needed.
Victoria declared a state of disaster in August 2020 due to the bushfires and COVID-19 pandemic. This declaration gave the Chief Health Officer powers to quarantine people, prohibit mass gatherings, and restrict the movement of people to protect public health. Prime Minister Scott Morrison also sought to boost emergency powers to suppress unrest during the bushfire crisis.
