A state of emergency has been in place in Western Australia (WA) since March 15, 2020. This has given its government extraordinary powers to impose draconian rules and restrictions with the stroke of a pen. These measures are currently renewed every two weeks by the simple signature of the emergency services minister, Stephen Dawson.
The government has used these powers to restrict people and their movement, including vulnerable Indigenous communities, over the last two years through closing borders, requiring passes to enter the state, and mandating masks.
But now, after more than two years of state of emergency, the WA government is quickly passing legislation that is even more draconian than the existing one. The new scheme is worse than a rebranded state of emergency because it removes any requirement for the emergency services minister to declare such an emergency.
Instead, the sole responsibility for making a declaration will be left entirely at the discretion of the police commissioner, removing the need for any parliamentary oversight as to when a state of emergency can actually be declared. In other words, the almost the totality of draconian measures used during the alleged pandemic will be freely available to the police commissioner.
On Sept. 21, the WA Labor government passed in the state Parliament’s lower house the Emergency Amendment (Temporary COVID-19 Provisions) Bill 2022 (WA). The opposition was given less than 48 hours of notice that the bill would be introduced on that day.
In an interview to ABC Radio Perth on Sept. 20, Premier Mark McGowan declared: “We need to pass it through the Parliament quickly so that when the existing state of emergency expires, these new measures can take effect.”
Speaking to local reporters, McGowan explained how the emergency powers would remain: “This will allow us to enforce mask wearing in health facilities, in disability and aged care [facilities], stay-at-home rules for people who are COVID positive as required.”
Similar Thing Repackaged
The new scheme creates a longer time limit of two years for the exercise of emergency powers, which allows the police commissioner to give himself full powers to police officers and “authorised officers” after seeking advice from the chief health officer.
According to Mia Davies, the state’s opposition leader, the new scheme basically amounts to “a state of emergency with a different name [and] more draconian powers.”
“When you’ve got the police commissioner in charge of a response to a health issue, we would ultimately still be in a state of emergency,” she said.
Karl O’Callaghan, a former WA police commissioner himself, comments that this “neatly removes accountability and controversy from the government over the exercise of emergency powers” and also removes executive government accountability to the public.
While an emergency declaration is in force, persons will be authorised to have the power, inter alia, to do all or any of the following:
- Direct or, by direction, prohibit the movement of persons and vehicles within, into, out of or around the declaration area or any part of the declaration area;
- Direct the evacuation and removal of persons from the declaration area or any part of the declaration area;
- Close any road, access route or area of water in or leading to the declaration area;
- Take control of or make use of any place, vehicle or other things
- Enter, or if necessary, break into and enter, any place or vehicle.
These are only a few examples of what authorised officers will do, as the above list is certainly not exhaustive. But is certainly demonstrates that the changes could be regarded as instigating the institutionalisation of a police state in Western Australia.
Emergency Powers Can Be Used as a Cover to Infringe on People’s Liberties
We may now better understand why a police commissioner and former “Vaccine Commander” was appointed to serve as the governor of Western Australia.
And we may be also repeating history as the desire to extend a state of emergency appears to confirm the worst fears of the Austrian-British economist and philosopher Friedrich Hayek.
In Law, Legislation and Liberty (1981), this Nobel Prize laureate offered this reflection:
“‘Emergencies’ have always been the pretext on which the safeguards of individual liberty have been eroded—and once they are suspended, it is not difficult for anyone who has assumed such emergency powers to see to it that the emergency will persist.”
Benjamin Franklin, a leading figure in early American history, once commented: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”
Germany in the 1930s provides an example. In those days, the Germans were quite willing to renounce their freedoms and be protected by the state. Under Article 48 of the Weimar Constitution (1919-45), the president of the German Republic was authorised to issue orders during times of emergency. These powers could remain in effect for four years, after which they could be renewed if the “emergency” was still in place.
The leading German jurist in those days, Carl Schmitt (1888-1985), who was the Dean of Law at the University of Berlin, contended that such use of emergency powers authorised the state to “temporarily” suspend all constitutional rights on the grounds of protecting the community. According to Schmitt: “Once this emergency power has been declared, it is clear that the constituted authority of the state continues to exist … and the law is placed in abeyance. The decision exempts the public authority from every normative restraint and renders it absolute in the true sense of the word. In a state of emergency, the constituted authority suspends the law on the basis of the right to protect its own existence.”
Western Australia, the Experiment
Obviously, it would be completely preposterous to conclude that Western Australia is facing similar challenges. However, the use of emergency powers results in a use of power that inevitably facilitates the violation of fundamental human rights.
Furthermore, a state of emergency can always become a more permanent measure in time, and this may explain why, presently, WA authorities are effectively seeking to enact legislation that rebrands the use of emergency powers rather than winding them back.
But I guess at least our premier was honest enough to confess, as he did in late March, that: “Western Australia is an experiment. We have very high vaccination levels, and we have a very compliant population.”
As a legal academic who has taught constitutional law for more than two decades, I certainly would agree with him. Thanks to the actions of its state Labor government, some basic constitutional principles inherited from our common-law tradition are now seriously undermined in Western Australia.