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Bennett, Belinda; Carney, Terry; Bailey, Richard --- "Emergency Powers & Pandemics: Federalism and the Management of Public Health Emergencies in Australia" [2012] UTasLawRw 2; (2012) 31(1) University of Tasmania Law Review 37

Emergency Powers & Pandemics: Federalism and the Management of Public Health Emergencies in Australia



Under the International Health Regulations 2005 Australia is obliged to develop a domestic framework designed to equip it to respond to public health emergencies. The legislative arrangements for the declaration of a public health emergency in Australia are complex, vary across state jurisdictions and intersect with other emergency powers. The task of harmonising laws and other arrangements within a federal system poses both challenges and opportunities for flexibility and choice. This article argues that Australia’s current multi-strand and multi-level response provides a coordinated framework which also accommodates desirable levels of flexibility and choice.


On October 23, 2009, President Obama declared a national emergency in response to the 2009 influenza A(H1N1) pandemic. The president’s declaration followed the United States Department of Health and Human Services’ (‘HHS’) prior declaration of a public health emergency in April 2009. Together, these declarations changed the legal landscape for influenza A(H1N1) response efforts domestically. HHS Secretary Kathleen Sebelius, for example, was authorized to waive or conditionally set aside or modify certain federal program requirements and disable federal law requiring hospitals to screen patients seeking emergency services on site. These federal responses and several state-based emergency declarations are intended to help clinicians handle surges of patients with flu symptoms and other conditions.[1]

Emergency powers serve many legal and social purposes apart from easing the obligations and standard of care required of clinicians at hospital emergency departments. In a federation such as Australia or the United States, the relationship between national and state powers is important,[2] so too is the degree of compliance with human rights norms[3] and the differing styles of emergency response, such as the divergent organisational cultures of public health and emergency management.[4]

The legislative arrangements for the declaration of a public health emergency in Australia are complex and vary across state jurisdictions. Most jurisdictions have provision for a public health emergency declaration in both public health and emergency management legislation. Within the different legislative frameworks there are differences in the definition of an emergency, what type of emergency declarations are available, who makes emergency declarations and according to what criteria, and the duration of a declared emergency and provisions for extension. There are also provisions for actions that might be considered to be emergency type actions, such as compulsory medical examination and quarantine, which do not require a formal declaration of emergency.

This complexity presents both strengths and weaknesses. As we have discussed elsewhere,[5] the 2009 H1N1 pandemic revealed the importance of flexibility in public health emergency response arrangements; choice of avenues for action proved helpful in that regard. Flexibility allowed for timely revision of response plans to accommodate a virus that was widespread but mild. It also permitted state-based tailored responses to reflect the specific local situation. However, the 2009 H1N1 pandemic also exposed the danger associated with complex and potentially confusing messages. It is critical that the correct balance is struck to ensure Australia is adequately prepared for the advent of a more severe virus.

In 2006, La Trobe University’s Centre for Public Health Law produced a report on jurisdictional issues in relation to communicable disease outbreaks. The report recommends that greater harmonisation across Australian jurisdictions should be a goal in public health law reform.[6] The report suggests a range of options for achieving this, ranging from the development of a checklist for emergency legal preparedness all the way up to State referral of public health powers to the Commonwealth.

The Centre for Public Health Law report also points out the importance of balancing emergency provisions with individual rights. Public health emergency powers usually include actions such as compulsory medical examination or quarantine, which are highly invasive of privacy and civil rights. Public health emergency provisions need to strike a difficult balance between ensuring that public health is adequately protected without impinging unnecessarily on privacy or permitting violations of human rights.[7]

This article focuses on the legislative arrangements for declaring a public health emergency across the various Australian jurisdictions with a view to assessing how federalism impacts on the balance struck between goals such as public confidence, harmonisation and flexibility. Such a review of the current legislation is timely for two reasons. First, the National Health Security Act 2007 (Cth) aims to provide a domestic framework designed to equip Australia to respond to public health emergencies within Australian territory in accordance with national obligations under the International Health Regulations 2005 (IHR (2005)). Accordingly, it is appropriate to review existing emergency powers relating to public health in order to assess the degree to which they support these obligations. Second, the 2009 H1N1 influenza pandemic, although much milder in terms of mortality than originally feared, provided an opportunity to reflect upon all aspects of public health preparedness in order to derive the lessons learnt for future pandemics.[8]

This article will also examine the US Model State Emergency Health Powers Act (MSEHPA) and analyse the role of model laws as a basis for legislative review and harmonisation within a federal system. The MSEHPA was developed in the US to provide a degree of legislative harmonisation without threatening the legislative autonomy of each state.[9] State legislatures were invited to adopt the model act with amendments tailored to specific local needs. To date provisions from the MSEHPA have been adopted by a number of states in their public health laws.[10] Model legislation like this is one of the options suggested by the Centre for Public Health Law. Emergency laws and public health laws are not the only laws relevant during a pandemic or other public health emergency of course. As James Hodge and Evan Anderson point out, routine non-emergency laws continue to operate during an emergency, unless automatically suspended by a declaration of a state of emergency[11] under either health-specific or general emergency legislation.[12] This interaction between non-emergency and emergency laws is important, particularly in terms of human rights.

This article argues that Australia is well on the way to delivering an appropriately multi-strand and multi-level response to the challenge of harmonising laws within a federation; a response more akin to the concordance of voices in the barbershop quartet than the unity of the solo performer. The next Part sets the scene by outlining the international expectations, the challenges of meeting them within a federation, and Australia’s main legislative provisions and administrative structures. Part III reviews issues related to holding public confidence during the exercise of emergency powers, including the duration of orders and the rights and protections for citizens. Part IV turns to some of the substantive content of public health and public emergency legislation, and their relationship to each other, before drawing the argument together in a short conclusion.


Realisation of international obligations such as those with respect to management of a health emergency, is more complicated in federal systems of government.

Public health emergency responsiveness has been likened to firefighting with identification of the ‘blaze’ by health professionals, the ‘firefighting’ response of public health officials, and the need for an incident commander to assess whether further resources are needed.[13] As a Canadian report on SARS noted:

We expect that firefighters and fire engines from different jurisdictions will come together seamlessly to contain an emergency. In the public health field, this seamlessness can only come about from effective preparedness and coordination by public health authorities at the local, provincial, federal and territorial levels. As with firefighting, there must be knowledge of common operating procedures, compatible training and equipment and, most importantly, prior agreements for mutual assistance in emergencies requiring a sudden surge capacity.[14]

This section opens by outlining Australia’s obligations under the International Health Regulations (‘IHR’), details some examples of problems encountered by federal systems in managing recent emergencies, and concludes by outlining Australia’s legislative and administrative framework for coordination of responses to a health pandemic.

A The IHRs and Issues of Federalism

In 2005 the World Health Assembly adopted the new International Health Regulations. The ‘purpose and scope’ of the IHR (2005) are

to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.[15]

The IHR (2005) adopted a new approach to the notification of infectious diseases.[16] Moving away from a list of specified diseases, the IHR (2005) instead requires countries to notify WHO of events within their territory that may constitute a ‘public health emergency of international concern.’[17] This is defined in the IHR (2005) as:

an extraordinary event, which is determined, as provided in these Regulations:

(i) to constitute a public health risk to other States through the international spread of disease and

(ii) to potentially require a coordinated international response.[18]

Although the requirement to notify WHO focuses on a public health event being of international significance, the IHR (2005) also require that countries develop certain national capacities. Each country is required to designate or establish a National IHR Focal Point and the responsible authorities within the country to liaise with the WHO.[19] Within 5 years of the IHR (2005) coming into force for that country, each country must develop ‘the capacity to detect, assess, notify and report events in accordance with’ the IHR.[20] Each country is also required to ‘develop, strengthen and maintain...the capacity to respond promptly and effectively to public health risks and public health emergencies of international concern.’[21]

The development of the core national capacities required by the IHR (2005) presupposes that countries have a unitary or at least highly co-ordinated system of government. The requirement in the IHR (2005) for a national focal point therefore requires countries in federal legal systems to ensure that they have appropriate mechanisms in place in order to be able to meet their IHR obligations. While a number of different strategies may be possible, including the introduction of legislation, use of funding arrangements by national governments to strengthen capacity at the local level in exchange for transfer of information to the national level, intergovernmental agreements between different levels of government, or the use of national guidelines, the ‘ultimate success [of such strategies] will depend crucially on the development of appropriate public health capacity at all levels of government, as well as effective working relationships between the various stakeholders.’[22]

Yet the development of national responses to the requirements of the IHR (2005) can be challenging, even for wealthy countries. In Canada, the lack of federal jurisdiction relating to epidemic diseases and a failure of cooperation between different levels of government have been cited as reasons for Canada’s poor handling of the 2003 SARS crisis.[23] Of course, cooperation or divergence between constituent members of a federation is not only relevant in pandemic preparedness. It is also potentially relevant to emergency responses generally, as debate within the US over the uncoordinated response to Hurricane Katrina has shown.[24] Likewise, the US response to H1N1, where although a state public health emergency was declared for the entire country in April of 2009,[25] only 10 states subsequently declared a state public health emergency.[26]

This pattern mirrors what occurred in Australia with the federal government taking the lead in response actions and declarations. During the 2009 H1N1 pandemic most key decisions came from the federal Department of Health and Ageing, the most important being formal declarations of changes in Australian Health Management Plan for Pandemic Influenza (AHMPPI) response phases. In Victoria, where cases were initially concentrated, a special response phase (a modified sustain phase), based on the AHMPPI, was developed in consultation with federal health officials.[27]

B The Australian Position

In Australia the federal government does not have specific public health powers except in relation to quarantine.[28] Australia’s federal legal system therefore has the potential to complicate responses to emergency situations. In 2004 Genevieve Howse argued that

it is time to look at the efficiency of the emergency powers laws of Australia as a whole: to map the laws in each jurisdiction and the Commonwealth quarantine laws and to consider their effectiveness in the face of the outbreak of a fast moving, easily spread infectious disease.[29]

Adding another layer of federal complications, the Quarantine Act 1918 (Cth) authorises coordination of response powers (s 3), and the powers to give directions and exercise executive powers under any declaration of an epidemic (s 2B) and indeed to override ‘any or all measures of quarantine’ under state or territory laws (s 2A). While the latter is fairly squarely based in the head of power over quarantine under s 51(ix) of the Australian Constitution, meaning that federal law trumps under s 109 of the Constitution, the remit of executive powers is much more fraught, and the current legislation may not have fully engaged the s 51(xxix) ‘external affairs’ power to attract the additional authority to implement the terms (or broad objectives) of any international treaties and obligations to which Australia is a state party. While beyond the scope of the present article, these are serious doubts,[30] adding to the fuzziness of the relationship between federal and state/territory powers to manage health emergencies, even though the federal government currently limits its declaration to SARS and avian flu.[31]

However, the obligations that arise under the IHR (2005) in relation to development of capacities for surveillance of infectious diseases has provided an impetus to legal and policy development in this area. Part 2 of the National Health Security Act 2007 (Cth) focuses on public health surveillance. This Part of the Act is designed to ensure that Australia has coordinated public health surveillance measures that will allow Australia’s obligations under the IHR (2005) to be met. The objects of Part 2 of the Act are set out in section 6 as follows:

(a) to provide a national system of public health surveillance to enhance the capacity of the Commonwealth and the States and Territories to identify, and respond to, public health events of national significance which include:

(i) the occurrence of certain communicable diseases; or

(ii) certain releases of chemical, biological or radiological agents; or

(iii) the occurrence of public health risks; or

(iv) the occurrence of overseas mass casualties; and

(b) to provide for the sharing of information with:

(i) the World Health Organization; and

(ii) countries affected by an event relating to public health or an overseas mass casualty; and

(c) to support the Commonwealth and the States and Territories in giving effect to the International Health Regulations (other than as mentioned in paragraphs (a) and (b)).

The Act also designates the National Focal Point for the purposes of the IHR (2005),[32] sets out the measures to be taken in relation to information sharing between the National Focal Point and Commonwealth, State and Territory bodies on ‘public health events of national significance’[33] and sets out the notification responsibilities of Commonwealth, State and Territory bodies and the National Focal Point for incoming travellers who are under public health observation.[34]

The National Health Security Act 2007 (Cth) includes definitions of ‘public health risk,’ ‘public health event of national significance,’ and ‘urgent event.’ A ‘public health risk’ is defined in section 3(1) of the Act as:

public health risk means an event:

(a) that might adversely affect the health of human populations; and

(b) that satisfies any one or more of the following conditions:

(i) the health effects of the event might spread within Australia;

(ii) the health effects of the event might spread between Australia and another country;

(iii) the health effects of the event might spread between 2 other countries;

(iv) the event might present a serious and direct danger.

A ‘public health event of national significance’ is defined in section 3 as:

any of the following events:

(a) one or more cases of a disease listed on the National Notifiable Disease List;

(c) an urgent event;

(d) an overseas mass casualty;

(d) a public health risk (other than an event covered by paragraph (a), (b) or (c)).

An ‘urgent event’ is defined in section 3 as

an event:

(a) that causes, or creates the potential for, levels of disease, injury or death above the levels that would otherwise be expected for the time and place where the event occurs; and

(b) in respect of which any of the following applies:

(i) the event has or might have a serious impact on public health;

(ii) in the case of a disease--the event is unusual or unexpected, and has a high potential to spread (whether within Australia or between Australia and another country);

(iii) otherwise--the event is unusual or unexpected, and the health effects of the event have a high potential to spread (whether within Australia or between Australia and another country).

In combination, these definitions include provision for future harm as in the MSEHPA, recognise the need to avoid the spread of disease, and distinguish between normal and unusual levels of infection and harm. They also importantly provide for the occurrence of a disease that is listed on the national notifiable diseases list as a trigger for emergency actions. The listing of a disease is only one possible trigger for an emergency as the Centre for Public Health Law advises and, reflecting the approach now taken in the IHR (2005), an event which is unusual or unexpected is included.

Australia’s administrative framework for responding to public health emergencies is part of an integrated whole-of-government approach to emergency management generally. The Commonwealth government has entered into a National Health Security Agreement with the States and Territories with the objectives of strengthening:

Australia’s public health surveillance and reporting system in order to better equip the Commonwealth, State and Territory health sectors to prevent, protect against, control and respond to a Public Health Event of National Significance or Public Health Emergency of International Concern and to respond to Overseas Mass Casualty events.[35]

The Agreement sets out the responsibilities at national, state and territory level for surveillance of communicable diseases and the framework for a national coordinated approach to reporting of public health events of national significance to the national focal point, established within the Commonwealth Department of Health and Ageing consistent with Australia’s obligations under the IHR (2005).

In 2008 the Council of Australian Governments (COAG) adopted Model Arrangements for Leadership During Emergencies of National Consequence to facilitate a coordinated approach to emergency management.[36] The Australian Health Protection Committee (‘AHPC’) was established by the Australian Health Ministers’ Advisory Council in 2006, representing each of the states and territories.[37] The responsibilities of AHPC include: to review and make recommendations for improvements to Australia’s surveillance system for communicable diseases; review and refine the framework for coordination of the health sector in responding to public health events of national significance; and ‘[a]dvising the Commonwealth on potential Public Health Emergencies of International Concern, consistent with the IHR, that should be notified to the WHO’.[38] In addition, a National Incident Room has been established ‘to ensure a nationally consistent and coordinated response to a national health emergency’[39] and national capability audits have been undertaken to identify strengths and gaps in Australia’s ability to manage and respond to health disasters.[40]

The public are powerful partners in emergency responsiveness, an issue we explore in the next Part, with regard to public participation, civil rights of affected citizens and the duration of exercise of special powers.


As Canada’s SARS Commission noted,

Legal powers are false hopes during a public crisis. No law will work during a disaster without the public cooperation and individual sacrifice shown during SARS.[41]

In Australia the need to include the public in emergency preparedness has been recognised with the development of a National Strategy for Disaster Resilience. As the Strategy states: ‘communities need to be empowered to take shared responsibility for coping with disasters.’[42]

One of the most obvious ways of retaining community confidence during an emergency is for the law to recognise the importance of public participation and regard for the civil rights of citizens (as set down in the IHRs). The recently enacted South Australian Public Health Act 2011 (SA) for example sets down a number of principles to guide administration of emergency powers, including obligations to have regard to principles of participation (s 11) and partnership (s 12), along with that of ‘equity’ (s 13).[43] While counterbalanced by citizen obligations and duties (s 14(3)-(4)) and other public health considerations the yet to be proclaimed s 14 lays down additional principles to govern management of ‘controlled notifiable conditions’ and ‘significant emergencies’ (s 85), including respect for dignity, privacy and religious or cultural values of people, their rights to participation in and consent to treatment decisions, to proportionate and least restrictive interventions, and to rights of communication, among others (s 14(5)-(9)).

As a further protection against arbitrary or excessive use of emergency powers, South Australian provisions yet to come into force will hedge specific powers such as those to require clinical examinations or tests, undergo counselling or obey directions, with requirements such as to have ‘reasonable grounds’, for decisions to be made by the Chief Health Officer, obligations regarding service of formal orders, opportunities for affected citizens to first participate voluntarily (ss 73-75), and access to review by the District court (s 76). More onerous powers such as detention are similarly hedged around with civil rights protections, and carry rights of appeal to the Supreme Court (ss 77 and 78). Case management advisory panels will be able to be constituted to guide the exercise of powers of direction and so forth of particular groups of people subject to infectious diseases orders or directions, once the provision is proclaimed (s 82).

States such as Queensland also provide protections such as a Magistrate’s authority to issue certain orders and directions, or extend the duration of four day detention orders issued by authorised medical officers (see generally Public Health Act 2005 (Qld) Chap 8, Pts 6-7), but they are slim by comparison, and more likely to cultivate any public impressions of overly sweeping emergency powers. Likewise in the Northern Territory, where pending review powers of Magistrates (eg, Public and Environmental Health Act 2011 (NT) s 107) do not stay ongoing exercise of emergency powers (ss 57 and 109).

Another issue of potential significance in holding public confidence is the duration of declarations of emergency powers. Generally provision is made for the declaration to specify an end date (Western Australia and Queensland are the exceptions), however the outer limit on the period for which such declarations may remain in force, and the provisions for extending the original period currently vary across Australia. New South Wales adopts the 30 day period (renewable) laid down in its State Emergency and Rescue Management Act 1989 (NSW);[44] mirroring the US Model Act.[45] Victoria differs only by selecting four week periods (28 days).[46] South Australia, once the provision is proclaimed, will halve that maximum duration of an initial declaration to 14 days, but then permit extensions for any nominated period.[47] Queensland and Western Australia set a standard period of seven days for initial declarations (without provision for setting an earlier date, leaving it to the relevant Minister to terminate it earlier),[48] but provide strict time limits on extensions.[49] By contrast, the two Territories provide for a maximum initial period of five days, enable an earlier end date to be fixed by the declaration, and insist on extensions being short (up to two days in the ACT; five days at a time in the Northern Territory).[50]

As can be seen, the period for which a declaration remains in force before requiring extension ranges from five days in the ACT to four weeks in Victoria and New South Wales. Provisions for extension also vary even more widely, with the ACT permitting only two-day extensions, whereas South Australia permits indefinite extensions with the permission of the Governor. The Centre for Public Health Law report queried the impact of variance in durations of an emergency declaration in limiting the capacity to respond to infectious disease events, but concluded that this would ‘depend on the efficacy of their respective administrative arrangements.’[51] The Centre report concluded that some limitation was necessary and suggested seven to fourteen days with scope for extension. The US MSEHPA however provides for periods of 30 days with renewals for a further 30 days following the process for an initial declaration.

Again using the 2009 H1N1 pandemic as a guide, even a period of 14 days seems inadequate. An influenza outbreak that necessitated emergency action would do so throughout the influenza season and possibly beyond, at least a period of several months. However, a public health emergency can also result from shorter events, such as a chemical spill or release. The US MSEHPA duration of 30 days appears to occupy a middle ground. In the US, there was a considerable controversy surrounding the MSEHPA and its impact on individual rights and freedoms. As a result, its authors carefully weighed the balance between providing adequate protection of public health while not unduly threatening civil liberties.[52]

The next Part turns attention to the types of legal tools to be found in the relevant toolkits, their relationship to each other, their differing extent or grade of power and the ease or otherwise of mobilisation.


At the state and territory level, both public health laws and emergency management laws may be relevant in the event of a major public health emergency such as a pandemic. While emergency management legislation provides a framework for responding to disasters, including natural disasters such as floods and bushfires, emergency laws may also provide a framework for broad co-ordination of a range of services and resources that may be in required to respond to a pandemic.

Each jurisdiction across Australia has both a public health act[53] and an emergency or disaster management act.[54] The emergency management acts provide for planning and response activities for a wide range of emergency situations. Except those in Tasmania and the Northern Territory, all list either epidemic or pandemic as an example in defining emergency.[55] The definition of emergency in Tasmania and the Northern Territory as an occurrence that causes or threatens to cause loss of life, injury or distress would also include a pandemic situation.[56] Conversely, all jurisdictions (except for a different form of drafting in NSW)[57] effectively contain provisions for the declaration of an emergency under public health legislation independent of emergency management legislation,[58] and NSW essentially achieves the same practical result without declaration of a health emergency per se.

This raises the question of whether public health or emergency powers legislation should form the basis for the response to a public health emergency situation and under what circumstances; a question recently shown by a sophisticated simulation exercise to have both legal and practical public policy and human rights dimensions.[59] The Centre for Public Health Law report suggests the emergency management legislation provides ‘additional’ powers to those in public health legislation.[60] It seems likely that emergency management legislation would be invoked in a public health crisis if the magnitude of the threat, in terms or severity or spread, was deemed to have passed beyond the scope of public health legislation, requiring a coordinated response across multiple government agencies. For example, s 4 of the State Emergency and Rescue Management Act 1989 (NSW) defines emergency for its purposes as requiring ‘a significant and co-ordinated response.’ Emergency management legislation in the ACT[61] and Western Australia[62] similarly defines an emergency as an event that necessitates a ‘significant and coordinated response’. In Western Australia, the State Emergency Management Plan for Human Epidemic, the response plan prepared under the Emergency Management Act 2005, states that it will be activated when a public health emergency requires ‘resources that exceed the capacity of existing health services.’[63] In South Australia, guidelines for emergency declarations made under the Emergency Management Act 2004 contained in the State Emergency Management Plan suggest consideration of whether ‘extended recovery operations’ or ‘further resources’ are required; whether the incident applies to a specific area or is widespread throughout the state; whether a declaration is necessary to signify the seriousness of the incident and whether coordinated public information is required.[64] In Victoria and Queensland, emergency management legislation provides for the declaration of a ‘disaster’ situation,[65] while public health legislation provides for a declaration of ‘emergency’,[66] indicating a hierarchy of incident and response framework.

This additional powers interpretation is further supported by the 2005 Victorian Department of Human Services review of the Health Act 1958 which resulted in the enactment of a new Public Health and Wellbeing Act 2008. The review noted that the Emergency Management Act 1986 provided for emergency planning and response involving ‘all relevant government and non-government agencies,’ including provision for facilitating cross-agency cooperation during a declared disaster situation resulting from a widespread emergency.[67] The review report recommended that the new public health act also contain provisions for an emergency declaration in relation to a geographic ‘specified area’.[68] The final wording of the Public Health and Wellbeing Act did not contain the phrase ‘specified area’, but does include a requirement that the Minister consult with emergency management officials before making an emergency declaration.[69]

The Centre for Public Health Law concluded that general emergency management legislation ‘tends to anticipate discrete emergency events rather than infectious or communicable disease emergencies,’ and ‘[t]heir provisions are poorly adapted to the latter purpose and may not support all of the necessary public health responses.’[70] This is one reason why health-specific emergency powers are required in addition. As mentioned above,[71] in the United States model legislation has been developed to address the issue of the specific needs in relation to public health emergencies. Clause 104(m) of the MSEHPA contains a comprehensive definition of a public health emergency, including provisions relating to the cause of the emergency and scope for an emergency to arise from the potential for future harm as well as from an immediate threat:

A “public health emergency” is an occurrence or imminent threat of an illness or health condition that:

(1) is believed to be caused by any of the following:

(i) bioterrorism;

(ii) the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin;

(iii) [a natural disaster;]

(iv) [a chemical attack or accidental release; or]

(v) [a nuclear attack or accident]; and

(2) poses a high probability of any of the following harms:

(i) a large number of deaths in the affected population;

(ii) a large number of serious or long-term disabilities in the affected population; or

(iii) widespread exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a large number of people in the affected population.

As Hodge and Anderson have noted, ‘[o]nce a state of emergency, disaster, or public health emergency is declared under MSEHPA, the governor, public health authorities, and emergency management agencies are granted additional powers and duties. By design, these declarations seek to change, modify, or suspend existing laws and regulations that may interfere with or curtail emergency responses.’[72] As Hodge and Anderson also observe, an unintended consequence of the enactment of public health emergency legislation by states, following MSEHPA, has been the potential for duplicate emergency declarations:

Duplicate state-emergency declarations add redundancy, complexity, and confusion to already muddied channels of communication, control, and accountability. Different state or local agencies may be legislatively or administratively responsible for coordinating simultaneous responses depending on the type of emergency declared. Thus, these statutory enactments can lead to confusion because they may vest similar authorities in divergent governmental agents, fail to set priorities for action when more than one governmental entity is authorized to respond, or grant conflicting powers.[73]

While the potential for duplicate emergency declarations could be seen as adding unnecessary confusion to emergency management, in the Australian context it seems clear that general emergency provisions play a supportive role to public health provisions, allowing for the utilisation of resources from a broader base if required according to the scale of an emergency. Having both health-specific and general emergency laws also provides all-important flexibility in managing operational and public relations aspects of any health emergency.

As Hodge et al report from their simulation study, decision makers grappling with real life situations deployed ‘multifarious legal, political, and epidemiological bases for key decisions’ such as closing schools or declaring emergencies.[74] So having a variety of different legal tools in the toolbox may prove advantageous, provided this does not lead to confusion in lines of authority. In Australia, such clear lines of authority appear to have been developed as part of the disaster and public health planning that has occurred at the state and territory level and through the terms of the National Health Security Agreement.[75]

This mechanism of moving from public health legislation to emergency management legislation according to the scale of an incident seems appropriate. A major public health event of regional or national significance, such as a pandemic with a moderate to high mortality rate, would require a whole-of-government approach with significant co-ordination and utilisation of resources on a regional or cross-jurisdictional basis. Furthermore, the qualitatively different nature of extreme events, when compared to routine events needs to be taken into account for emergency planning. As Leonard and Howitt have argued, ‘Extreme events are not simply overgrown routine events; they are different in kind, and they require a materially different approach.’[76] It has been noted that:

Two defining features of a catastrophic disaster are that it will:

1. Not be possible to immediately meet the needs of those requiring assistance within the existing capability of an individual state or territory, or nationally; and

2. Take a considerable time from which to recover.[77]

The nature of a catastrophic disaster is such that flexibility and the ability to adapt to the needs of the circumstances are key elements in effective responsiveness. Indeed, as Leonard and Howitt argue:

By contrast, extreme events, are characterized by important elements of novelty – whether because such an event is a completely new phenomenon to the organisation and individuals experiencing it; or, though familiar, because its scale substantially exceeds what they are ready for; or because two or more serious threats unexpectedly occur simultaneously. By definition, extreme events exceed ordinary capabilities and routines – that is what makes them ‘extreme’. The defining operational demand characteristic of extreme events is the necessity for improvisation. Effective leadership in such situations requires creative, improvised actions to cope as well as is reasonably possible with an event for which there is no full precedent, and for which there is therefore no fully developed action script.[78]

In this context, where flexibility and improvisation are critical elements of effective responses to extreme situations, Leonard and Howitt argue that a decentralised organisational system utilizing an incident management approach is preferable to a centralised structure, as decentralisation allows for more effective distribution of resources and shorter lines of communication.[79]

As we have argued elsewhere, Australia’s provision of such varied legal avenues and choice of magnitude of powers able to be invoked in the management of pandemics, enabled a flexible, responsive and adaptive approach to be adopted with some success in managing the recent H1N1 pandemic.[80]


While we have argued above for some refinement of Australia’s emergency laws relating to public health, we recognise that of course, emergency laws are only part of any response to a public health crisis and harmonisation is not the only policy objective. Ideally, public health laws should provide clear, flexible, workable and widely accepted frameworks for supporting the various measures that may be necessary in a public health emergency.

It is because laws are part of the scaffolding for public health that their content and architecture is so important. In a federation it is important that laws harmonise sufficiently so that those affected understand what powers are available, how they are invoked and what the lines of authority are. Jurisdictional overlap, uncertain lines of authority, and the absence of clear powers (including clarity around the limits of such powers) can only serve to hamper emergency responses. To coin a phrase, everyone needs to sing from the same songsheet; and discordant harmonies are unacceptable. But this does not necessarily exclude other concordant policy objectives. Operational flexibility in a health emergency is arguably enhanced by capacious drafting which leaves room for ‘tailored’ deployment of powers, provided the powers are subject to strict legal safeguards such as short durations of emergency declarations and other protections of the kind such as those now found in the South Australian Public Health Act 2011 (SA) described above.

Public acceptance and stakeholder confidence in the use of emergency powers may be promoted by being able to choose between general emergency and health emergency provisions, despite the apparent duplication. To extend the musical metaphor, just as a well trained barbershop quartet relies on building its harmony from the concordance of the varied contributions of the performers of its four parts, so also when designing optimally effective sets of powers to deal with health emergencies within a federation. The aim is to coordinate and balance several objectives and various levels and branches of law; it is a different task from that of designing laws for a country with a unitary system of law.

While it remains a work in progress, the analysis in this article suggests that Australia has made good progress in realising that aspiration.

[*] Bennett and Carney: Professors of Law, Sydney Law School, University of Sydney; Bailey: doctoral candidate, Sydney Law School, University of Sydney. Research for this paper was supported by an Australian Research Council Discovery Grant (DP0987239). Referee comments are gratefully acknowledged.

[1] James G Hodge and Brooke Courtney, ‘Assessing the Legal Standard of Care in Public Health Emergencies’ (2010) 303(4) Journal of the American Medical Association 361, 361.

[2] Evan D Anderson and James G Hodge, ‘Emergency Legal Preparedness Among Select US Local Governments’ (2009) 3(Supplement 2) Disaster Medicine and Public Health Preparedness S176.

[3] David L Richards and Chad Clay, ‘States of Emergency and Respect for Peremptory Norms’ (Research Paper No 7, University of Connecticut; Digital Commons: Research Papers, 2010) <> .

[4] Anda Botoseneanu et al, ‘Achieving Public Health Legal Preparedness: How Dissonant Views on Public Health Law Threaten Emergency Preparedness and Response’ (2011) 33(3) Journal of Public Health 361.

[5] Terry Carney, Richard Bailey and Belinda Bennett, ‘Pandemic Planning as Risk Management: How Fared the Australian Federation?’ (2012) 19 Journal of Law and Medicine 550.

[6] Centre for Public Health Law, ‘Emergency Powers and Cross-Jurisdictional Issues Regarding Outbreaks of Communicable Diseases’ (Report, National Public Health Partnership, May 2006) <> .

[7] Ibid Pt 2.

[8] Carney, Bailey and Bennett, above n 5.

[9] For the text of the MSEHPA, see <> see also Lawrence O Gostin et al, ‘The Model State Emergency Health Powers Act: Planning for and Response to Bioterrorism and Naturally Occurring Infectious Diseases’ (2002) 288(5) Journal of the American Medical Association 622.

[10] According to the MSEHPA website, as of 15 July 2006, ‘the Act has been introduced in whole or in part through 171 bills or resolutions in forty-four (44) states, the District of Columbia, and the Northern Mariannas Islands. Thirty-eight (38) states [...] and DC have passed a total of 66 bills or resolutions that include provisions from or closely related to the Act.’ <> .

[11] James G Hodge and Evan D Anderson, ‘Principles and Practice of Legal Triage during Public Health Emergencies’ (2008) 64 New York University Annual Survey of American Law 249, 253.

[12] See also, James G Hodge et al, ‘Building Evidence for Legal Decision Making in Real Time: Legal Triage in Public Health Emergencies’ (2011) 5(S2) Disaster Medicine and Public Health Preparedness S242.

[13] Health Canada, ‘Learning from SARS: Renewal of Public Health in Canada (Report, National Advisory Committee on SARS and Public Health, October 2003), 98.

[14] Ibid 98; Belinda Bennett and Terry Carney, ‘Law, Ethics and Pandemic Preparedness: The Importance of Cross-jurisdictional And Cross-cultural Perspectives’ (2010) 34(2) Australian and New Zealand Journal of Public Health 106, 108.

[15] World Health Organisation, ‘International Health Regulations (2005)’ (World Health Organisation, 2nd ed, 2008), Art 2.

[16] See also, Belinda Bennett and Terry Carney, ‘Trade, Travel and Disease: The Role of Law in Pandemic Preparedness’ (2010) 5(2) Asian Journal of WTO and International Health Law and Policy 301, 311-313.

[17] International Health Regulations (2005), above n 15, Art 6.

[18] International Health Regulations (2005), Art 1. For further discussion of the International Health Regulations (2005) (‘IHR’) see David P Fidler, ‘From International Sanitary Conventions to Global Health Security: The New International Health Regulations’ (2005) 4(2) Chinese Journal of International Law 325; David P Fidler and Larry O Gostin, ‘The New International Health Regulations: An Historic Development for International Law and Public Health’ (2006) 34(1) Journal of Law, Medicine and Ethics 85; Centre for Public Health Law, above n 6, Pt 4.

[19] International Health Regulations (2005), above n 15, Art 4.

[20] Ibid Art 5.

[21] Ibid Art 13.

[22] Kumanan Wilson et al, ‘Strategies for Implementing the New International Health Regulations in Federal Countries’ (2008) 86(3) Bulletin of the World Health Organization 215, 217-18. See also, Kumanan Wilson et al, ‘The New International Health Regulations and the Federalism Dilemma’ (2006) 3(1) PLoS Medicine e1.

[23] Amir Attaran and Kumanan Wilson, ‘A Legal and Epidemiological Justification for Federal Authority in Public Health Emergencies’ (2007) 52 McGill Law Journal 381, 412-13. See also, Amir Attaran and Elvina Chow, ‘Why Canada is Very Dangerously Unprepared for Epidemic Diseases: A Legal and Constitutional Diagnosis’ (2011) 5(2) Journal of Parliamentary and Political Law 287.

[24] Thomas Birkland and Sarah Waterman, ‘Is Federalism the Reason for Policy Failure in Hurricane Katrina?’ (2008) 38(4) Publius: The Journal of Federalism 692; Carmine Scavo, Richard C Kearney and Richard J Kilroy Jr, ‘Challenges to Federalism: Homeland Security and Disaster Response’ (2008) 38(1) Publius: The Journal of Federalism 81; Donald C Menzel, ‘The Katrina Aftermath: A Failure of Federalism or Leadership?’ (2006) 66(6) Public Administration Review 808, PAGE.

[25] Centers for Disease Control and Prevention, ‘The 2009 H1N1 Pandemic: Summary Highlights, April 2009 - April 2010’ (2010) <> .

[26] Centers for Law and the Public’s Health, 2009 H1N1 (Swine Flu) Legal Preparedness and Response (27 January 2010) Centres for Law and the Public’s Health <> .

[27] Victorian Minister for Health, Media Release 3 June 2009: Victoria moves to modified sustain phase of flu plan (2009) <> . For further discussion see Carney, Bailey and Bennett, above n 5.

[28] Christopher Reynolds, ‘Quarantine in Times of Emergency: The Scope of s 51(ix) of the Constitution(2004) 12(2) Journal of Law and Medicine 166, 176; Centre for Public Health Law, above n 6, 28.

[29] Genevieve Howse, ‘Managing Emerging Infectious Diseases: Is a Federal System an Impediment to Effective Laws?’ (2004) 1 Australian and New Zealand Health Policy 1, 3.

[30] See also, Reynolds, above n 28, 171-174, 176; Scott Guy and Barbara Hocking, ‘Times of Pestilence: Would a Bill of Rights Assist Australian Citizens who are Quarantined in the Event of an Avian Influenza (Bird Flu) Pandemic?’ (2006) 17(3) Current Issues in Criminal Justice 451, 455-458.

[31] The currently quarantinable diseases include: Highly pathogenic avian influenza in humans (‘HPAIH’) and severe acute respiratory syndrome (‘SARS’): National Notifiable Diseases Surveillance (NNDSS) ‘Australian National Notifiable Diseases by Disease Type’ <> .

[32] National Health Security Act 2007 (Cth) ss 9-10.

[33] Ibid ss 13-15.

[34] Ibid ss 16-17.

[35] Department of Health (Cth), National Health Security Agreement (2008), cl 1 <> .

[36] Attorney-General’s Department, Australian Emergency Management Arrangements (2009) Attorney-General’s Department <> , Annex A.

[37] See Department of Health and Ageing, Health Emergency Preparedness and Response <> Australian Health Ministers’ Advisory Council, Principal Committees <> .

[38] National Health Security Agreement 2008 cl 38.

[39] See Department of Health and Ageing, ‘Health Emergency Preparedness and Response: National Incident Room’ <> . See also, Emergency Management Australia, ‘Multi-Agency Incident Management’ (Manual 17, 1998).

[40] Australian Health Protection Committee, 'National Health Disaster Management Capability Audit 2008' (Health Emergency Management Branch, Office of Health Protection, 2010).

[41] SARS Commission, Second Interim Report, quoted in Archie Campbell, ‘Spring of Fear: Final Report: Volume 2’ (SARS Report, Ministry of Health and Long-Term Care, 2006), 33 <> .

[42] Council of Australian Governments, ‘National Strategy for Disaster Resilience: Building the Resilience of Our Nation to Disasters’ (2011), 1.

[43] Other principles applied by s 5 of the South Australian Public Health Act 2011 (SA) include the ‘precautionary principle’ (s 6), proportionate regulation (s 7), sustainability (s 8), a principle of prevention (s 9) and that of a ‘population focus’ (s 10).

[44] Public Health Act 2010 (NSW) ss 7-8 [not yet in force, replicating ss 4-5 of the 1991 Act]; State Emergency and Rescue Management Act 1989 (NSW) s 35.

[45] US Model State Emergency Health Powers Act cl 405.

[46] Public Health and Wellbeing Act 2008 (Vic) s 198(7)(b)-(c).

[47] South Australian Public Health Act 2011 (SA) s 87(2)(b).

[48] Public Health Act 2005 (Qld) s 322; Draft Public Health Bill 2008 (WA) s 107-108.

[49] See, eg, Public Health Act 2005 (Qld) s 323: Extensions, to be made by way of regulation, expire 14 days after the original emergency declaration unless revoked sooner or further extensions of not more than seven days are made. The draft WA Bill sets 28 days as the limit on extensions.

[50] Public Health Act 2007 (ACT) s 119(3)-(4); Public and Environmental Health Act 2011 (NT) s 50.

[51] Centre for Public Health Law, above n 6, 142.

[52] For discussion of the MSEHPA see Gostin, above n 9. See also Julie Bruce, ‘Bioterrorism Meets Privacy: An Analysis of the Model State Emergency Health Powers Act and the HIPAA Privacy Rule’ (2003) 12 Annals of Health Law 75; Thomas A Gionis, Cyril Wecht and Lewis W Marshall, ‘Public Health Law and Disaster Medicine: Understanding the Legal Environment’ (2007) 2(2) American Journal of Disaster Medicine 64; Wendy K Mariner, George J Annas and Wendy Parmet, ‘Pandemic Preparedness: A Return to the Rule of Law’ (2009) 1(2) Drexel Law Review 341.

[53] Public Health Act 2005 (Qld); Public Health Act 2010 (NSW); Public Health and Wellbeing Act 2008 (Vic); Public Health Act 1997 (Tas); Public and Environmental Health Act 1987 (SA); Draft Public Health Bill 2008 (WA); Public Health Act 1997 (ACT); Public and Environmental Health Act 2011 (NT). Note that for the purposes of discussion, this paper is considering the Western Australian Draft Public Health Bill 2008.

[54] Disaster Management Act 2003 (Qld); State Emergency and Rescue Management Act 1989 (NSW); Emergency Management Act 1986 (Vic); Emergency Management Act 2006 (Tas); Emergency Management Act 2004 (SA); Emergency Management Act 2005 (WA); Disasters Act 1982 (NT); Emergencies Act 2004 (ACT).

[55] Disaster Management Act 2003 (Qld) s 16 (definition of ‘event’ includes ‘an infestation, plague or epidemic’); State Emergency and Rescue Management Act 1989 (NSW) s 4 (‘epidemic’); Emergency Management Act 1986 (Vic) s 4 (‘a plague or an epidemic’); Emergency Management Act 2004 (SA) s 3 (‘emergency’ includes ‘(a) the death of, or injury or other damage to the health of, any person’); Emergency Management Act 2005 (WA) s 3 (‘hazard’ means ‘(d) a plague or an epidemic’); Emergencies Act 2004 (ACT) s 4, Dictionary (definition of ‘emergency’ incorporates four (non-exhaustive) ‘examples’, including ‘epidemic or animal disease’). See also Centre for Public Health Law, above n 6, 136-37.

[56] Emergency Management Act 2006 (Tas) s 3; Disasters Act (NT) s 4.

[57] Section 8 of the Public Health Act 2010 (NSW) will maintain the practice of recognising any emergency declared under the State Emergency and Rescue Management Act 1989 (NSW), which covers situations where ‘the Minister considers on reasonable grounds that the emergency is, or is likely to be, a risk to public health’ (cf s 4 of the 1991 Act). In addition, s 7 of the Public Health Act 2010 (NSW) empowers the Minister to take action and give directions that the Minister considers necessary to respond to a risk to public health (s 5 of the 1991 Act).

[58] Queensland, Victoria, Western Australia and the Northern Territory public health acts define ‘emergency’ broadly as an event (or series of events in Queensland) presenting a ‘serious’ risk to public health: Public Health Act 2005 (Qld), s 315; Public Health and Wellbeing Act 2008 (Vic), s 198(1); Draft Public Health Bill 2008 (WA), s.4; Public and Environmental Health Act 2011 (NT), s 48. Tasmania and the ACT allow a declaration to be made where ‘the situation requires it’ (Public Health Act 1997 (Tas) s 14) or the Minister is satisfied that it ‘is justified in the circumstances’ (Public Health Act 2007 (ACT) s 119). Section 3 of the South Australian Public Health Act 2011 (SA) adopts the definition in s 3 of the Emergency Management Act 2004 (SA) (‘an event that threatens or causes the death of, or injury or other damage to the health of, any person’).

[59] One of the findings of a US simulation exercise was that ‘what may be legally authorized is not always what is, or should be, decided [in response to a public health emergency]’. Experienced public health participants ‘overwhelmingly’ opted to declare public health emergencies rather than a general state of emergency for reasons such as avoidance of a perception of state overreach: Hodge et al, above n 12, S249.

[60] Centre for Public Health Law, above n 6, 125.

[61] Emergencies Act 2004 (ACT) s 4.

[62] Emergency Management Act 2005 (WA) s.4.

[63] WA Department of Health, State Emergency Management Plan for Human Epidemic (Government of Western Australia, 2008), 17.

[64] Government of South Australia, State Emergency Management Plan (2005), 61.

[65] Disaster Management Act 2003 (Qld) s 69; Emergency Management Act 1986 (Vic) s 23.

[66] Public Health Act 2005 (Qld) s 319; Public Health and Wellbeing Act 2008 (Vic) s 198.

[67] Department of Human Services, ‘Review of the Health Act 1958 (Draft Policy Paper - for Consultation, 2005), 67.

[68] Ibid 70, Recommendation 123.

[69] Public Health and Wellbeing Act 2008 (Vic) s 198.

[70] Centre for Public Health Law, above n 6, 125.

[71] See above nn 9, 10 and accompanying text.

[72] Hodge and Anderson, above n 11, 267.

[73] Ibid 269.

[74] Hodge et al, above n 12, S250.

[75] National Health Security Agreement 2008, above n 35. Harmonisation and coordination of responses to emergencies is promoted in various ways, including under the national ‘Emergency Management’ initiative managed by the federal Attorney General’s Department: see <> and the approaches outlined at <> .

[76] Herman B Leonard and Arnold M Howitt, ‘Organising Response to Extreme Emergencies: The Victorian Bushfires of 2009’ (2010) 69(4) Australian Journal of Public Administration 372, 376.

[77] Attorney-General’s Department, Australian Emergency Management Arrangements (2009) Attorney-General's Department, 17 <> .

[78] Leonard and Howitt, above n 76, 376.

[79] Ibid 377.

[80] Carney, Bailey and Bennett, above n 5.

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