Politics

How new laws to remove WA’s COVID-induced state of emergency will work

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After more than two years of Western Australia being in a COVID-induced state of emergency, the government is trying to quickly pass legislation to replace it with a new scheme.

Premier Mark McGowan on Tuesday described the new laws as a “lesser level of alert” – but the opposition says they are “more draconian” than the existing arrangement and amount to a state of emergency by a different name.

So what’s going on, and why does it matter?

What is a state of emergency?

WA has been in a state of emergency for 920 days, since March 15, 2020.

That’s enacted every two weeks by the Emergency Services Minister signing a declaration, having considered the advice of the police commissioner – who is also the state emergency coordinator.

When that declaration is signed, the police commissioner is given extraordinary powers, to direct any person, or group of people to do anything they believe “reasonably necessary to prevent, control or abate risks associated with the emergency”.

The government has used that power a lot over the last two years to do things like close borders, require G2G passes to enter the state, mandate masks and restrict movements in and out of vulnerable Aboriginal communities.

So what’s changing?

The government wants to bring the state of emergency to an end and replace it with new legal structures to manage what’s left of the pandemic.

“There’s been a lot of pushback on [the state of emergency] because of the title, and it also allows for the government to close borders and so forth, so we’re coming up with a new arrangement,” Premier Mark McGowan said.

The big change with that new structure is that the Emergency Services Minister will no longer have a role to play.

The police commissioner will instead be able to give themselves emergency powers if they are satisfied that:

  • COVID is, or imminently will be, “of such a nature or magnitude that it requires a coordinated response”, and
  • “There is a need to exercise powers … to prevent or minimise loss of life, prejudice to the safety, or harm to the health, of persons.”

They will also need to consider advice from the Chief Health Officer and publish that advice – but they are not required to follow it.

That has the opposition’s emergency services spokesperson, Martin Aldridge, concerned.

“There will no longer be any ministerial oversight, and there’s certainly no provisions for parliamentary oversight,” he said.

Martin Aldridge MLC
Martin Aldridge is worried by the lack of oversight in the new legislation. (ABC Perth: Anthony Stewart )

“By comparison, Victoria has many safeguards in place that not only involve the parliament but involve executive government in scrutinising and in providing information to the public on decisions they make,” he said.

Deputy police commissioner Kylie Whitely this morning said the police commissioner would always act with the public’s best interest in mind.

“Without the community, those measures won’t work so we’ll make sure whatever comes out of the Parliament, we still continue to focus on what’s best for the community and work with the community,” she told ABC Radio Perth.

The legislation will also require that a COVID-19 declaration has to be revoked by the police commissioner as soon as they are satisfied it is no longer necessary.

The government has said the new powers will only be used for low-level controls, like isolation for positive cases and mask wearing in certain places.

Are the powers of the police commissioner changing?

A little bit, but not much.

They won’t be able to close interstate borders anymore, or require something like a G2G pass to enter the state.

But everything else remains effectively the same – people authorised by the commissioner can take, or direct others to take, any action “reasonably necessary to prevent, control or abate risks associated with COVID-19”.

Police Commissioner Col Blanch
Police Commissioner Col Blanch’s powers will be limited under the new legislation, but not by much. (ABC News: Greg Pollock)

That could include requiring people to give information like their name, recent travel and who they’ve been in close contact with.

Before using those powers, the police commissioner may – but is not required to – consider public health, social and economic impacts.

The commissioner, and others they authorise, can also, if they choose, consult with the Chief Health Officer, the head of the Health Department, and other people as they see fit – but again, don’t have to.

How far do the powers go?

Similar to the state of emergency, the COVID-19 rules would give authorised officers wide-ranging powers, including to “take control or make use of any place, vehicle or thing”.

It further specifies that an officer may do that “without a warrant or the consent of the owner or occupier, or the person apparently in charge, of the place, vehicle or other thing”.

Officers would also have the power to manage the movement of people and vehicles, including directing the evacuation of people.

Those are extreme powers and it’s unlikely they’d be used in that way, as Deputy Premier Roger Cook explained in Parliament.

A man in a black suit and tie speaks at a press conference.
Roger Cook says the powers could be used to take over public infrastructure, such as stadiums, for use as command centres. (ABC News: James Carmody)

“For example, it would allow the WA Police to quickly set up accommodation and establish an operations centre, such as the successful Operation Tide, which was initially based at [Perth] Stadium,” he said.

Operation Tide was the police response to COVID-19 in WA and included management of the state’s borders and enforcing other pandemic rules.

“The powers concerning movement and evacuation exist under the state of emergency, however under the COVID-19 declaration, it gives the ability to impose restrictions on access to remote communities to protect more vulnerable people,” Mr Cook said.

It’s being pushed through quickly – why is that?

The government is planning to pass the bill, in its entirety, through parliament’s lower house on Wednesday.

“It is an absolute contemptuous and arrogant government that brings legislation of such significant to Parliament and expects it can be dealt with in a day,” opposition leader Mia Davies said yesterday.

Mia Davies wears spectacles and a bright red jacket with her hair tied back
Mia Davies was scathing in her assessment of the legislation’s tight time frame. (ABC News: James Carmody)

Mr McGowan said there was a good reason to pass it quickly.

“It’s been tricky to draft which is why it’s taken some time, but we need to pass it through the Parliament quickly so that when the existing state of emergency expires, these new measures can take effect,” he told ABC Radio Perth yesterday.

The current state of emergency declaration ends on Friday.

But the legislation will still have to go through parliament’s upper house – which doesn’t sit for another three weeks – before it becomes law.

What does the opposition think?

The opposition was already irked by the government not giving them much notice of the bill – they were first told about it on Monday night and were only briefed and given a copy late yesterday.

Now that they’ve seen the detail, they think it’s a state of emergency by a different name.

“All this does is extend the powers of the state of emergency without the oversight of the government or the Parliament,” Ms Davies said on Wednesday.

“The legislation is simply a continuation of the state of emergency that we as the opposition continue to call to be ended.”

“This government needs to consider what we’ve been calling for, which is a public health response to a public health issue.”

Ms Davies said the opposition would like to see the Public Health Act – which gives power to the Chief Health Officer – used instead.

What does the government say?

In Parliament on Wednesday, leader of the lower house David Templeman said the legislation would replace the state of emergency with a “temporary, fit for purpose,” framework.

“The bill will draw on the arrangements that contributed to our success in managing the pandemic to date,” he said.

Fellow cabinet member Rita Saffioti criticised the opposition for repeatedly calling for the state of emergency to come to an end, and then being unhappy when this legislation was being brought through as a priority.

A tight head and shoulders shot of WA Transport Minister Rita Saffioti speaking at a media conference.
Rita Saffioti says the new legislation delivers exactly what the opposition wanted and was bemused as to why they were arguing against it. (ABC News: Grace Burmas)

“This is delivering exactly what the opposition has been calling for, the opposition has been calling for a new way of managing COVID rules in relation to what is happening out in the community,” she said.

“Don’t argue for something and then when we introduce it, argue against it.”

Mr McGowan wasn’t in Parliament on Wednesday because he was in Canberra ahead of Thursday’s National Memorial Service for Queen Elizabeth II.

But yesterday he said the new legislation is about moving to a “lower level of controls and measures across the community”.

“It’s a much more modest set of controls and measures available to the state.”

Posted , updated 

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