Human Rights Commissioner questions WA’s continued use of emergency powers


As Prime Minister Mark McGowan confirms Western Australia’s state of emergency is likely to continue beyond July, Australia’s human rights commissioner is among those questioning the use continues powers that have been used to close borders, impose quarantine and require mandatory mask-wearing.

Mr McGowan said on Monday the government intended to extend its state of emergency, which has been in place for more than two years, until the second half of the year.

“Having the ability and the powers to do these things is important because you don’t want to drop everything and then find out you don’t have the ability,” the prime minister said on Monday.

Mark McGowan has regularly referenced health advice as the reasoning behind pandemic-related decisions.(ABC News: James Carmody)

But Australian Human Rights Commissioner Lorraine Finlay is concerned about the long-term use of emergency laws.

A state of emergency, as well as a state of public health emergency, has been in effect across WA since March 15, 2020.

Ms Finlay said the state of emergency provisions were never meant to be used on an ongoing basis, as they have been in WA.

“At the start of the pandemic, when we didn’t have a lot of information about what COVID-19 was or the impact of the virus, you can understand the need for this quick and decisive action.” she declared. .

“The longer the situation lasts, the harder it is to justify the continuation of emergency measures.”

Liability issues

Unlike in Victoria, where the government must now provide written justification for any pandemic orders such as new restrictions, WA’s state of emergency laws do not require written reasoning to be shared on the public record.

Woman in business suit standing in front of shelves
Australian Human Rights Commissioner Lorraine Finlay has said governments must provide more information to justify COVID-19 emergency measures.(Provided by: Lorraine Finlay)

Throughout the pandemic, the WA government has maintained that its decisions were based on the advice of the Chief Health Officer.

But Ms Finlay said the public should have more information about what that advice is.

“It’s not just about basically saying the health advice required ‘this restriction,’ but showing how the evidence requires this particular restriction in relation to this particular risk,” she said.

“And also showing that this restriction is the minimum required to really respond to the emergency so that we do not introduce restrictions that are too broad.”

The state of emergency legislation is due to expire in July, but there is no limit to the number of times it can be extended.

This contrasts with Victoria, where the state of emergency provisions are time-limited and cannot be continued on an ongoing basis without going back to parliament.

This forced the Victorian government to return to parliament last year to craft its pandemic-specific legislation.

Victoria’s new legal framework, which replaced its state of emergency in December last year, requires leaders to present their reasoning for any pandemic restrictions to Parliament.

Separate parliamentary and independent committees are also to review pandemic orders and provide advice to the Minister of Health and Parliament. This review is in the public domain.

Queensland Human Rights Commissioner Scott McDougall suggested the state follow Victoria’s lead.

But the Western Australian government has maintained it needs emergency laws to ‘introduce significant guidance based on health advice’.

“If these statements are not extended, the guidance that has been made for the purpose of managing the emergency, which includes both response and recovery, would no longer be available,” a government spokesperson said. of State.

The spokesperson said emergency powers were needed to impose isolation, mask-wearing, capacity and density limits and vaccination requirements.

“More transparency needed”

But Meredith Blake, an associate professor at the University of WA Law School, said the WA government’s approach of attributing COVID-19 restrictions to “health advice” was confusing.

“And yet different jurisdictions have done different things [based on health advice].”

Ms Blake, who researches and teaches health law and policy, said increased transparency would likely help reduce public frustration with decisions that affect their jobs, their children’s education and their movements. .

“So if there’s not just more transparency about the basis on which decisions are made…and transparency about what this health advice is about…then that would really help people feel that there’s has reasoning, there’s logic,” she said.

“There is evidence behind the actions that are being taken and that they are not simply an exercise by the executive of unbridled executive power.”

Ms Finlay said it was also important to improve accountability to prepare for the possibility of a future pandemic or similar event.

WA Opposition Leader Mia Davies has also called on the government to make its decisions more transparent.

“We ask the government to be upfront with its plans for the transition from this state of emergency, and any mandates and restrictions associated with it,” Ms Davies said on Monday.

“Provide us with the triggers so that we understand when we can transition to treating COVID as an endemic disease, rather than under the emergency powers that currently exist.”

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