What is WA's Emergency Management Act and why have the pandemic powers been extended again?

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In a matter of hours late yesterday, the WA government rushed legislation through the state's lower house in a bid to hang onto broad-ranging pandemic powers for a further six months.

Key points:

  • The Emergency Management Act holds additional powers
  • The powers are only available during a state of emergency
  • COVID restrictions rely on part of the act to be extended

The bill still has to pass the upper house, but that's a mere formality as WA Premier Mark McGowan has complete control over both houses of parliament.

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It will be the fourth time the powers have been extended since the pandemic began, but it's a little more controversial this time.

So what's happening, and why does it matter?

Let's start at the beginning. What is the state of emergency?

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Ordinarily, the state government can only do so much without going through parliament to pass legislation.

The Emergency Management Act 2005 (WA) provides a framework for the government to exercise additional powers during emergencies, like natural disasters and pandemics, so they can be dealt with quickly and effectively.

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To access those powers, the Emergency Services Minister has to declare a state of emergency – which the government has done every fortnight since March 15, 2020.

What is wa's emergency management act and why have the pandemic powers been extended again?

WA's Emergency Services Minister, Stephen Dawson, renews the state of emergency every two weeks.(ABC News: Keane Bourke)

They can only do that on the advice of the State Emergency Coordinator, which is currently Police Commissioner Chris Dawson.

We'll likely never know what exactly that advice looks like, because the current Minister, Stephen Dawson, revealed in Parliament yesterday it's given verbally at fortnightly meetings.

So does this new legislation extend the state of emergency?

No. The state of emergency can be renewed an unlimited number of times, but generally for no longer than a fortnight at once.

The bill that passed the Legislative Assembly last night extends a specific part of the Emergency Management Act — section 72A.

That part was added to the Act in 2020, at the start of the pandemic, and was meant to expire after a year.

But, because some of the legal directions that underpin WA's pandemic response only have any legal effect because of section 72A, the government has extended it a number of times.

At the moment, it's due to expire on July 4, but once the bill that passed last night also passes the upper house, those powers will be available until January 4, 2023.

What is the government using that power for?

There are a range of ways the government has enforced restrictions over the last two years, and section 72A is just one of them.

At the moment it's being used to:

  • require seven days' isolation for positive cases
  • enforce mask mandates for close contacts, and in certain settings like in hospitals, aged care facilities and on public transport
  • impose strict protocols on cruise ships
  • restrict movements in and out of vulnerable Aboriginal communities.

But the power is written in really broad terms, including allowing authorised people to take any action or direct another person or group of people to take any action, that is “reasonably necessary to prevent, control or abate risks associated with the emergency”.

So the government can use those powers for the next six months?

Not necessarily. 

The powers are only available for as long as a state of emergency is in effect.

“They will drop away as soon as the state of emergency is over,” Premier McGowan said yesterday.

“We won't keep the state of emergency in place for any longer than we need to, but if we get rid of them we'll have adverse health outcomes and I don't want to see that.”

Mr McGowan says they remain necessary for now, because the remaining “baseline” restrictions are helping keep COVID-19 hospitalisations low. 

But even without section 72A, there are other ways the government could continue to impose restrictions, with or without a state of emergency.

For example, workplace vaccine mandates are given effect under the separate Public Health Act.

What's the issue then?

The key concern is that the powers exercised under section 72A aren't really subject to scrutiny in the same way that legislation normally is — despite the fact the directions function in a very similar way to laws passed by parliament.

Ordinarily, legislation is debated in parliament, the opposition and other members have the chance to scrutinise it, and the government has to justify why it's passing that law.

But that all gets skipped with the Emergency Management Act.

Liberal leader David Honey yesterday questioned why other avenues weren't being used to achieve the same results.

What is wa's emergency management act and why have the pandemic powers been extended again?

Liberal leader David Honey doesn't believe the extension is necessary.(ABC News: Keane Bourke)

“The Public Health Act, as we understand it, gives ample power for the government to make many decisions,” he said.

“If the Public Health Act is deficient, the government have had two years to amend it.

“We are greatly concerned that the government have avoided a lot of scrutiny on the decisions, and this is just a way to avoid public scrutiny.”

What are other states doing?

South Australia's recently elected Premier Peter Malinauskas yesterday introduced legislation to amend its Public Health Act and allow for the state to end its emergency management direction (which is similar to WA's state of emergency declaration). 

Those amendments will allow isolation requirements, vaccination and mask mandates in certain places and other rules to continue unaffected.

But lockdowns, broad mask mandates and hospitality restrictions would require another state of emergency to be declared to return.

What is wa's emergency management act and why have the pandemic powers been extended again?

Mr McGowan says WA won't go down the same path as Victoria.(ABC News: Keane Bourke)

Victoria's pandemic laws, which have been supported by many experts, go even further with a pandemic oversight committee.

The state's parliament can also disallow measures it doesn't agree with.

Mr McGowan has all but ruled out taking a similar path previously, saying the existing legislation, including section 72A, is adequate for WA's needs.

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What is wa's emergency management act and why have the pandemic powers been extended again?

Dr Norman Swan discusses the future trajectory of the virus

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