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Opinion: Emergency powers need scrutiny

Opinion: Emergency powers need scrutiny

By Rosalind Croucher

COVID-19 Human Rights Opinions 

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Ensuring accountability through COVID-19 lockdowns and curfews is a human rights issue.

The response to COVID-19 has united – and divided – Australia. Adequately managing the response is not only a public health issue, it is a human rights issue, involving significant incursions on people’s rights and freedoms – especially freedom of movement. 

The responses to the pandemic have also been imposed through decision-making processes that involve significant delegations of power, with limited or no opportunity for parliamentary scrutiny. This has implications beyond COVID-19. In December 2020, an interim report by the Senate Standing Committee for the Scrutiny of Delegated Legislation found: “The significant volume of delegated legislation made by the executive, and the frequent exemption of this delegated legislation from parliamentary oversight, pose serious challenges to Parliament’s constitutionally recognised law-making role.”

Curfews and lockdowns

One example of executive action is the curfew imposed on greater Melbourne in the “stay at home” directions issued under the Public Health and Wellbeing Act 2008 on 13 September 2020. The lawfulness of the directions was tested in Loielo v Giles (Loielo),2 as a matter of administrative law, in an action by restaurant owner Michelle Loielo. 

In his decision of 2 November 2020, to uphold the decision of Associate Professor Michelle Giles (the person to whom the curfew decision was ultimately delegated), Ginnane J showed how such administrative decisions can be challenged, both as a matter of judicial review and pursuant to the Victorian Charter of Human Rights. In passing observations, Ginnane J also questioned the scope of authority weighing on the relevant person, which opens up a further issue about accountability.

While Associate Professor Giles was an authorised officer within the relevant legislation, Ginnane J suggested there can be “legitimate debate about whether a public servant in Giles’ position, who is not the Minister, the Department Secretary or the Chief Health Officer, should be exercising an emergency power that may close down much of the state”.3 He recommended that “Parliament may wish to reconsider who should exercise these emergency powers”. 

Executive decision making

In response to the pandemic, parliaments nationwide have transferred extraordinarily wide powers to executive governments and agencies. As Dr Sarah Moulds observed in the Alternative Law Journal, laws “were passed within days, sometimes hours, with limited safeguards”.

This prompts consideration of the checks and balances that have – or should have – accompanied such decision making. There are “after the fact” measures, as illustrated by the judicial review of the administrative actions in Loielo, but there are also structural issues that merit further consideration. In particular, the need for accountability of the decision itself at the time through scrutiny by parliamentary processes.

Heavily reduced sitting of parliaments nationwide and short time frames for the introduction of measures have constrained scrutiny processes. In this context, the role of parliamentary committees has been important – but while parliamentary committees provide some form of parliamentary oversight of executive action, there are mixed reports on their effectiveness.5

For the most part, governments have openly justified their decisions. Premiers and first ministers have maintained a regimen of press conferences, often daily, that have assisted in public acceptance of the limits to rights and freedoms during COVID-19. Moreover, as Dr Janina Boughey observed in the Alternative Law Journal, “Limits to government accountability must not become permanent features of the way governments make rules. We should retain the good features of the governments’ approach to this emergency – like their willingness to explain their decisions and answer media questions. But we should be careful to ensure that ordinary accountability measures resume as quickly as possible”.6

Such scrutiny aids not only in ensuring compliance with restrictions, but also in maintaining trust in our governments and our parliaments, and those who are delegated to act on our behalf. This trust has been the foundation of our democratic structure since 1688.

It would also provide a safeguard that when we plan for recovery from this crisis, no one gets left behind. 

The checks and balances that ordinarily exist are integral to our democracy. Australians have been, and continue to be, exposed to potentially unnecessary restrictions of their rights and freedoms, because of the lack of transparency and accountability that surround emergency measures.

We need to embed a better human rights scrutiny process into all emergency responses, to ensure that any intrusion on our rights is always fully justified, and the debate is had at the time the restrictions are considered – not afterwards. ■


Emeritus Professor Rosalind Croucher AM is Australian Human Rights Commission President. 

  1. Senate Standing Committee for the Scrutiny of Delegated Legislation released an interim report in its inquiry into the exemption of delegated legislation from parliamentary oversight, 7 December 2020, xiii. The Committee noted that, in 2019, 20 per cent of the 1675 laws made by the executive were exempt from disallowance.
  2. [2020] VSC 722.
  3. Note 2 above, at [13].
  4. Sarah Moulds, “Scrutinising COVID-19 laws: An early glimpse into the scrutiny work of federal parliamentary committees” (2020) 45(3) Alternative Law Journal 180, 181.
  5. Moulds, 184, referring, eg, to the contributing authors to Julie Debeljak and Laura Grenfell (eds), Law Making and Human Rights, 2020. 
  6. Janina Boughey, “Executive power in emergencies: Where is the accountability?” 2020 45(3) Alternative Law Journal 168, 174.

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