A Barrister's Blog

My administrative lawyer’s “where’s the power for that come from” antennae were on high alert after the NSW Premier (on the advice of her chief health officer) declared a “national emergency” at one of the daily Covid press conferences last week.

The first problem is that there are no powers for the Commonwealth to declare a state of national emergency. In fact, there was an issues paper published by the National Natural Disasters Arrangements Royal Commission looking at the potential constitutional framework for a declaration of national emergency. Prior to the vaccine rollout, I might have thought national coordination in emergencies was a good idea. Now, I’m not so sure.

The other thing which struck me was about the use of the word “emergency”. I have previously blogged about the wide ranging powers under the Bio-Security Act (both State and Commonwealth). The State has very similar powers under the State Emergency and Rescue Management Act. For the purpose of that Act, emergency means: an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:

• endangers, or threatens to endanger, the safety or health of persons or animals in the State, or
• destroys or damages, or threatens to destroy or damage, property in the State, or
• causes a failure of, or a significant disruption to, an essential service or infrastructure,

being an emergency which requires a significant and co-ordinated response.

Those powers typically allow “emergency services officers” (i.e. firies, police or SES etc) to evacuate, enter premises and take other safety measures when a state of emergency is declared. Anyway, the short story is that there are no shortage of powers available, just declaring a national emergency is not one of them.

Creative commons acknowledgment for the photograph.