Michael Kirby caveat on use of emergency powers

Former High Court judge ­Michael Kirby has said Australia should be doing more to ‘invigorate and involve’ parliament in scrutinising the use of emergency powers.

Former chief justice of the High Court Michael Kirby. Picture: John Appleyard

Former High Court judge ­Michael Kirby has said Australia should be doing more to “invigorate and involve” parliament in scrutinising the use of emergency and disaster powers.

He said parliament needed to be “questioning” in its role so that it did not become a “tame ­servant” of the executive arm of government.

His call comes after Victorian Premier Daniel Andrews last week announced he wished to extend the time limit that applies to emergency powers from six months to 18 months.

The move triggered a backlash from the opposition and warnings from legal experts about the need for parliamentary scrutiny.

Mr Andrews has reportedly struck a deal with crossbench MPs in Victoria’s upper house to give him a one-off six-month ­extension to his state of emergency powers beyond September 14.

Mr Kirby said parliament was best placed to scrutinise and review the use of emergency and disaster powers and this could be done in a number of ways, including through the use of parliamentary committees. “Emergency and disaster powers could be best kept under scrutiny and review by the legislature,” he said.

“This can be done by appointing parliamentary committees; adopting sunset clauses; and specifically establishing parliamentary committees to receive regular reports and review proportionality and continuation of exceptional emergency powers.”

There were analogies between terrorism legislation and emergency and disaster powers, he said. The bipartisan parliamentary joint committee on intelligence and security has res­pon­sibility for reviewing national security legislation and oversees Australia’s primary intelligence agencies. However, parliament needed to be “more questioning” to perform this role effectively.

“We should be doing more to invigorate and involve our elected parliament,” he said. “But parliament needs to be more questioning and well advised in performing such functions.

“Otherwise it simply becomes a tame servant of the executive, which is a common weakness of parliamentary democracies of the Westminster system.”

The state of emergency, first declared on March 16, gives Victorian Chief Health Officer Brett Sutton extraordinary legal powers to impose lockdown measures and rules such as mask wearing.

Under the state of disaster, declared on August 2, the police minister can override legislation.

Police also have the power to enter premises without a warrant.

Rule of Law Institute of Australia president Robin Speed said there had not been proper checks and balances applied to lockdown measures, such as the curfew and 5km travel limit in Melbourne. He said health advice should have been released to justify the steps and debate in parliament.

Constitutional law professor Cheryl Saunders has said once the crisis eases, a proper look at emergency procedures was needed to ensure governments could responded swiftly while ensuring appropriate checks and balances were in place.