I’ve written about emergency powers a few times before. At their core, they’re trying to balance two extremely important principles: our ability as a society to survive an emergency and our ability as a democracy to control the powers of the Executive.
My research on the public understanding of national security warrants engages this balance regularly. A lot of people are really comfortable in handing over a lot of power to the Executive, which is a problem because, functionally, the other branches of government are not really well adapted to constrain the Executive and rely on the power of the ballot box as a safety net. The lack of public understanding — even the public’s misunderstanding — means that one of our bedrock checks on the power of the Executive might not be working as effectively as it should be.
Victoria has just used its emergency powers to declare a number of ‘detention locations’. If you are a resident of one of these ‘detention locations’, you are not permitted to leave the location unless you’re going to receive medical care, it is reasonably necessary for your physical or mental health, there are compassionate grounds, or there is an emergency.
Oh, and it just so happens — total coincidence — that each of the detention locations is public housing.
What is public housing? Public housing is a form of residential tenancy where the State is the landlord. With only a few exceptions, they have the same rights that a private tenant has in regard to their landlord.
When we talk about public housing, we need to be really clear the grounds upon which we think that a public tenant should have fewer rights than an ordinary tenant. If your landlord rocked up and told you that you were unable to leave your home for 14 days, and coerced you into having a medical test done, you would sue. You wouldn’t pass ‘Go’. You wouldn’t collect $200. You would immediately call a lawyer and say: ‘This can’t possibly be legal.’
And you’d be correct. It can’t possibly be legal.
What has everybody confused here is the dual role that the State is playing here. Not only is it the landlord of the public tenants (acting in a semi-private capacity), it is also the State. And through the Public Health and Wellbeing Act 2008, we have conferred upon it some emergency powers.
Here is the most important part of Emergency Law: at no point does any Act simply say, ‘Let ‘er rip.’ There are rules. There is a framework. The Constitution still continues to operate (no joke, I had somebody seriously arguing in my Twitter feed that the Directions under the PHWA override the Constitution).
The only powers that the Directions can exercise are those which have been conferred by the Act. Section 200 of the PHWA is broad, it even includes ‘detain any person or group of persons in the emergency area for the period reasonably necessary to eliminate or reduce a serious risk to public health’ and ‘restrict the movement of any person or group of persons within the emergency area’.
You might think that’s game over for public tenants. You’re wrong.
There are a number of non-obvious qualifications on these powers. Further down the section:
An authorised officer must at least once every 24 hours during the period that a person is subject to detention under subsection (1)(a) review whether the continued detention of the person is reasonably necessary to eliminate or reduce a serious risk to public health.
Not ‘the group’: the person. Each individual. You can’t use this power to detain an entire group of people unless the detention of each individual person is reasonable.
The response to that is that the public housing tenants aren’t detained (under subsection (1)(a)). Instead, their movement is restricted under (1)(b). I would be arguing that prohibiting a person from leaving their home is not mere restriction of movement, but detention. It’s just being cute with language to say that (1)(a) is not being used.
Next, at no point in the Act does it state that a Direction can override any other existing piece of legislation. I was told repeatedly by randoms and weirdoes on Twitter that a Declaration could do literally anything, but it’s not true. All it can authorise is what’s in section 200.
Two piece of legislation are relevant. First, the Residential Tenancies Act (which I’m foreshadowing the ‘tada’ moment at the end of this piece). Second, the Charter of Human Rights and Responsibilies Act 2006. There are also some legal norms about the use of the police and the requirement for a positive legal authority in order to interfere with an individual’s liberty and privacy which I think are engaged here but are too complex for a blog post. In essence, if you were in a private apartment block and the police were stationed on each floor to prevent people from leaving, you’d think that maybe there are some legal rules about this, and you’d be correct.
The Charter has a protection of the home in s 13. The Charter imposes an obligation on public authorities to act in a way that is compatible with human rights: it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right (s 38). That includes the Chief Health Officer when making a Direction under s 200 of the PHWA. The question is whether this provision was breached.
Human rights can be limited (s 7), only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. Section 7 drones on a bit, but one of the tests is whether there is a less restrictive way to achieve the policy purpose. Locking everybody down in their homes is a highly oppressive way to achieve a policy outcome and, given the number of cases we know about and the number of people in those apartments, it’s not clear that this approach is narrowly targeted to the policy outcome.
Importantly, every person has the right to enjoy his or her human rights without discrimination (s 8), and the fact that the only people under lockdown by having a police presence on each floor of the apartment for public housing tenants really, really smells like discrimination. Why only 130 Racecourse Road and not the other nearby buildings? Why haven’t private buildings been locked down?
And this gets us to the wonderful ‘tada’ moment: public housing tenants have property rights in their tenancy, just like every other private tenant. These are property rights that the State cannot trample either in its capacity as the State when dealing with ordinary citizens or in its capacity as a landlord when dealing with public housing tenants. Like any other private person, public housing tenants have the right to tell their landlord to stop interfering with their ability to enter and leave the property.
This doesn’t give public housing tenants a special level of protection from being regulated by the State due to the pandemic. What it does is restore public tenants to the same dignities and entitlements that every other citizen of Victoria enjoys.
There are clearly less restrictive ways to achieve the outcome here, especially given the numbers involved. The legal framework is not a suicide pact — the State should be able to do whatever is necessary to achieve good policy outcomes. But going very quickly to the most oppressive option available is appalling, and we have legal protections in place that should stop that from happening.