How emergency powers work across Australia

As at 24 November 2021

This resource explains what ’emergency powers’ are and how they work in every State and Territory in Australia.

What are emergency powers?

During extreme situations, a ‘State of Emergency’ may be declared to facilitate the high-level coordinated response required at that time. A State of Emergency is a government declaration that may:

  • Suspend certain normal functions of government;
  • Alert the community to the situation and request they alter their normal behaviours;
  • Order government agencies to implement emergency preparedness plans.

There is no single ’emergency’ law in Australia which gives one government all the power to formulate and implement a national response. However, the Federal Government has powers and functions in various Federal laws which may be exercised during States of Emergency to assist the States and Territories in responding to and managing the emergency.

How long can emergency powers operate for?

Each State and Territory has different periods of time that a State of Emergency can operate for and different rules around extensions.

For example, in Victoria, proposed extensions have to go through Parliament and are voted on in the upper house. Under Victorian law, a State of Emergency may be extended by four weeks, for a maximum period of 12 months.

How do emergency powers work in different jurisdictions?

Federal

In Australia, under the Biosecurity Act 2015 (Cth), a human biosecurity emergency can be declared where it is reasonably necessary to prevent or control a disease posing a severe and immediate threat of harm.

The Act allows for a human biosecurity emergency period to be as long as necessary to prevent or control COVID-19, but no longer than three months. However, the human biosecurity emergency period may be varied or extended for up to three months, and the three month extension can be used more than once.

An extension may only occur where the Federal Health Minister is satisfied that COVID-19 continues to pose a severe and immediate threat, or cause harm on a national scale, and the extension is necessary to prevent or control the entry, emergence, establishment or spread of COVID-19 in Australia.

Victoria (VIC)

In Victoria, a State of Emergency can be declared under the Public Health and Wellbeing Act 2008 when any circumstances causing a serious risk to public health arise.

A State of Emergency allows the Chief Health Officer to authorise the exercise of certain emergency powers, such as:

  • detaining any person or group of people within a government-declared emergency area for the period reasonably necessary to eliminate or reduce a serious risk to public health;
  • restricting the movement of a person or group of people within the emergency area; and
  • preventing a person or group of people from entering an emergency area.

A State of Emergency may be extended by four weeks, for a maximum period, in the case of the COVID-19 emergency declaration, of 21 months.

New South Wales (NSW)

In NSW, the NSW Government has the power to deal with public health risks under the Public Health Act 2010 (NSW). A State of Emergency does not need to be declared to use these powers.

The NSW Health Minister has broad powers to take action and give directions necessary to deal with the risk and consequences of COVID-19 (Public Health Orders).

These Public Health Orders allow the Health Minister to make any direction necessary to:

  • reduce or remove the risk of COVID-19 in the area;
  • segregate or isolate people within NSW; and
  • prevent, or give on a conditional basis, access to any part of NSW.

Orders made under the Public Health Powers expire after 90 days, unless they are withdrawn or made to expire sooner.

Queensland (QLD)

In QLD, a declared Public Health Emergency under the Public Health Act 2005 (QLD) (the Act) gives the Queensland Chief Health Officer broad powers to assist in containing or responding to the spread of COVID-19 in the community by:

  • restricting people’s movement;
  • preventing people from entering certain premises;
  • requiring people to stay at certain premises;
  • requiring certain premises to open, close or limit access;
  • restricting contact between people; and
  • providing any other directions the Queensland Chief Health Officer thinks are necessary to protect public health.

The declared public health emergency allows the Queensland Government to use new powers added to the Act to combat the COVID-19 outbreak. Further public health emergencies may be declared for further periods of 90 days if the public health risk continues.

Western Australia (WA)

In WA, a State of Emergency can be declared under the Emergency Management Act 2005 (WA). A Public Health State of Emergency can also be declared under the Public Health Act 2016 (WA).

These declarations allow for the exercise of certain emergency powers, such as:

  • order persons undergo medical observations or
    procedures;
  • directing or prohibiting the movement of persons;
  • entering, searching or taking control of any place;
  • closing any road, access route or area;
  • issuing directions to public authorities; and
  • directing owners/occupiers of places of business
    to close to the public.

The Minister for Health must extend the Declaration every 14 days.

South Australia (SA)

In SA, a Major Emergency declaration can be made under the Emergency Management Act 2004 (SA) and gives the State Co-ordinator (and Authorised Officers) broad powers to manage and co-ordinate the response to, and recovery from, the outbreak of COVID-19 within South Australia. A Public Health Emergency can also be declared under the South Australian Public Health Act 2011 (SA).

During a Major Emergency, Authorised Officers have broad powers to do whatever is necessary to address the outbreak of COVID-19 within South Australia (Emergency Powers), such as:

  • enter and, if necessary, break into any land, building, structure or vehicle (using such force as is necessary);
  • take possession of, protect or assume control over any land, body of water, building, structure, vehicle or other thing;
  • direct or prohibit the movement of people, animals or vehicles;
  • direct a person to remain isolated or segregated from other people or to take other measures to prevent the transmission of a disease or condition to people;
  • direct a person to undergo medical observation, examination or treatment;
  • require any person to give information;
  • direct any person to assist in exercising any power related to the Major Emergency; and
  • do anything else necessary to address the outbreak of COVID-19 within South Australia.

The Governor can extend the Emergency Declaration for a period of 28 days.

Northern Territory (NT)

In the NT, an Emergency Declaration can be declared under the Public and Environmental Health Act 2011 (NT).

The Emergency Declaration gives powers to the Chief Health Officer to take action and give directions necessary to alleviate the public health risk posed to the community by COVID-19.

While the Emergency Declaration is ongoing the Chief Health Officer can, among other things:

  • issue warnings;
  • isolate people from an area or particular place;
  • prevent people from entering an area of particular place;
  • require people to remain in a state area either immediately or within a particular period.

The Health Minister may extend the Emergency Declaration for 90-day periods.

Tasmania (TAS)

In TAS, two types of Emergency Declarations can be made under the Public Health Act 1997 (Tas) and the Emergency Act 2006 (Tas).

While a Public Health Emergency is ongoing the Tasmanian Director of Public Health can, among other things:

  • quarantine or isolate people in any area;
  • evacuate people from any area;
  • prevent access to any area; or
  • control the movement of vehicles.

A State of Emergency declaration allows the State Controller to exercise special powers in the Emergency Management Act.

A Public Health Emergency can be extended indefinitely, while the threat to public health continues. A State of Emergency can be extended for further 12-week periods.

Australian Capital Territory (ACT)

In the ACT, an Emergency Declaration can be made under the Public Health Act 1997 (ACT).

While the Emergency Declaration is ongoing the Chief Health Officer can, among other things:

  • segregate or isolate people in an area;
  • prevent or permit access to an area;
  • control the movement of a vehicle; or
  • make a person remain in or move away from a specific area while the emergency remains in force.

The Health Minister can extend the Emergency Declaration for further 90-day periods.

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This resource was published 24 November 2021. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation.

 

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