On 16 March 2020, Victorian Premier Daniel Andrews declared a State of Emergency across Victoria due to the ongoing serious risk to public health from COVID-19.
A declaration of a State of Emergency allows the Chief Health Officer to authorise the use of Emergency Powers under the Public Health and Wellbeing Act 2008 (Vic) (”Public Health and Wellbeing Act”) to eliminate or reduce a serious risk to public health.
This declaration has been extended a number of times, most recently on 16 August 2020 and remains in force until 11:59 pm on 13 September 2020. The Public Health and Wellbeing Act limits the extension of a State of Emergency declaration to a period of no more than 6 months after it is initially declared.
Extension to the State of Emergency Declaration Powers
On 8 September 2020, the Victorian Governor assented to the Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Act 2020 i (“Extension Act”) which extends the total period for which a State of Emergency declaration may continue in Victoria.
The extension allows the Chief Health Officer to issue further health directives after 13 September 2020 and the Premier to declare additional extensions to the current State of Emergency in four-week periods up to an additional 6 months in total.
Additionally, the Extension Act amends the Public Health and Wellbeing Act to:
- alter the circumstances in which the Chief Health Officer may appoint Authorised Officers;
- clarify the power of the Chief Health Officer in respect of directions;
- clarify the application of the definition of serious risk to public health; and
- enhance reporting requirements when a State of Emergency declaration is extended beyond 6 months due to the COVID-19 pandemic.
What are Emergency Powers?
The Emergency Powers are broad powers to be exercised only by Authorised Officers appointed by the Chief Health Office for the purpose of eliminating or reducing a serious risk to public health across Victoria, including the power to:ii
- detain any person or group for as long as reasonably necessary;
- restrict the movement of any person within Victoria;
- prevent entry to Victoria; and
- give any other direction that the officer considers reasonably necessary to protect public health.
Authorised Officers may be assisted by Victoria Police when exercising Emergency Powers.
The ‘stay at home’ directives are made under Public Health risk powers to investigate, eliminate, reduce, or prevent a risk to public health in accordance with the declared State of Emergency. Under these powers, the Chief Health Officer can authorise the following directions:iii
- close any premises for a period of time;
- direct a person or group, not to enter, remain at, or leave, any particular premises;
- enter any premises without a warrant and search for and seize anything;
- require a person to provide information including their name and address;
- inspect any premises where the risk to public health may be spread;
- require the cleaning or disinfection of any premises;
- require the destruction or disposal of anything necessary;
- direct the owner or occupier of any premises to take any action necessary; and
- direct any other person to take any other action that the Authorised Officer considers is necessary.
It is important to note that before exercising these powers, the Authorised Officer must (unless not practicable to do so) briefly explain the reason why it is necessary to exercise the power and warn the person that a refusal or failure to comply without a reasonable excuse is an offence.iv
Under these powers, an Authorised Officer may only enter any premises without a warrant where that officer reasonably believes that there may be an immediate risk to public health and entry is necessary to enable the officer to investigate, eliminate or reduce the risk.v
Before requiring a person to provide information, an Authorised Officer must inform the person that they may refuse or fail to provide the information if providing the information would tend to incriminate them.vi
Where a person is being detained, the Authorised Officer must briefly explain the reason why it is necessary before doing so, unless not practicable, in which case they must then do so as soon as practicable.vii
i Victoria, Gazette: Special, No S 452, 8 September 2020.
ii Public Health and Wellbeing Act 2008 (Vic) s 200(1).
iii Public Health and Wellbeing Act 2008 (Vic) s 190(1).
iv Public Health and Wellbeing Act 2008 (Vic) ss 190 (2) to (3) and 200(4).
v Public Health and Wellbeing Act 2008 (Vic) s 190(7).
vi Public Health and Wellbeing Act 2008 (Vic) s 190(8).
vii Public Health and Wellbeing Act 2008 (Vic) ss 200(2) to (3).