Andrews is walking a fine line with Victorians’ trust by moving to extend the state of emergency

While there’s no doubt COVID-19 is a terrible enemy that warrants action, but trying to extend the state of emergency for a further 12 months seems like we’re trying to cross the bridge before we get to it, writes human rights expert Dr Bruce Chen.

The Premier of Victoria yesterday announced new laws which could extend the existing state of emergency up to September 2021. This takes our COVID-19 response further into uncharted waters, and represents a potentially concerning sign.

The new laws, planned for introduction to Parliament in a Bill on 1 September, will amend the Public Health and Wellbeing Act 2008. It is that Act which allows the Chief Health Officer to make the stay at home directions we currently live under (including mandatory face coverings).

I don’t doubt that many of our human rights need to be limited at the present time, to protect life and health. Remember, under Victoria’s bill of rights, the Charter of Human Rights and Responsibilities Act 2006, we generally can limit human rights where it is ‘lawful’, justified’ and ‘proportionate’.

It also makes sense that we need to extend the maximum period beyond 6 months. COVID-19 is stubborn and yet to be vanquished. Changing the laws would make continuing emergency restrictions lawful, as the Premier clearly intends.

But what is the policy rationale for a maximum of 18 months, more than three times the original maximum? Are we trying to cross the bridge before we come to it? Is it justified and proportionate for such extraordinary powers to be available for so long?

If we are increasing the maximum period, we need to ensure there are stringent checks and balances in the Bill. Potential safeguards could include an initial state of emergency period, which can only be extended for increments up to the new maximum.

There could be a requirement that directions must be periodically revisited as well. A human rights-based approach requires that restrictions be adjusted and where possible, lessened, according to changing circumstances.

There needs to be better oversight mechanisms. As the laws currently stand, the relevant Minister must report to Parliament on the state of emergency and use of powers. But this of course has limitations when Parliament is not regularly sitting.

The Government needs to be careful to restore normality without doing irreparable damage to our human rights and public trust in the process. Its response must remain necessary, temporary and tailored. Given the greater extent and duration our rights would be limited under an extended state of emergency, the Government needs to do more to make out its case that the current proposal is needed.

MORE NEWS

DAN’S PLAN MUST CLEAR HOSTILE CROSSBENCH

UGLY FIGHT LOOMS OVER STATE OF EMERGENCY EXTENSION

BOLT: ‘DICTATOR DAN’ NO LONGER JUST A NICKNAME

Dr Bruce Chen is a lecturer at Deakin Law School and former human rights adviser