Spanish Court decision

By a slim majority of six to five, Spain’s highest court has ruled that last year’s COVID-19 lockdown was unconstitutional. The court found that the lockdown rules were equivalent to a suppression of fundamental rights.

In March 2020, the Spanish government declared a state of emergency in efforts to defeat the first wave of COVID-19 infections. The lockdown measures were put in place due to the rising number of cases and deaths, and the hospitals that were becoming overwhelmed. Strict stay at home orders were issued and individuals were only permitted to leave for essential reasons. All but essential business were closed. The laws were in place until June 2020, and subsequently reinstated when Spain faced a second wave of the disease.

Article 116 of the Spanish Constitution provides for three types of emergency situations: state of emergency, state of exception, and the highest level, state of siege. The Constitution establishes conditions in which they should be declared, however the specific circumstances that allow for their declaration are not defined and are to be developed in an organic law.

A state of emergency – known as a ‘state of alarm’ in Spanish – can be declared by the government and implemented before it is debated in parliament.  This allows the government to put new rules into force quickly. A state of exception, however, is not directly agreed by the government. Instead, the proposal needs to be taken to parliament first, which then has to declare the emergency.

The court held that the limitations on movement violated citizen’s basic rights and that a state of emergency was a constitutionally insufficient mechanism to do that. The six magistrates said that a state of exception, which does allow the government to suspend basic rights, would have been necessary.

Australia in comparison

New South Wales has powers under the Public Health Act 2010 (NSW) (‘Act’) to deal with health risks generally. Under section 7 of the Act, the Minister for Health may consider, on reasonable grounds, that a situation has arisen that is, or is likely to be, a risk to public health. In those circumstances, the Minister may take such action and give directions as the Minister considers necessary to deal with the risk and its possible consequences. Section 7(3) confers the Minister power to declare any part of the State to be a public health risk area and make orders ‘to reduce or remove any risk to public health in the area, to segregate or isolate inhabitants of the area, and to prevent, or conditionally permit, access to the area’. However, under section 7(6), ‘action may not be taken, and an order has no effect, in relation to any part of the State for which a state of emergency exists under the State Emergency and Rescue Management Act 1989’.

Moreover, under section 8 of the Public Health Act 2010 (NSW), if the Minister considers on reasonable grounds that the emergency is or is likely to be, a risk to public health, the Minister may take action and give orders as necessary to deal with the risk and its possible consequences. Further, section 8(3) states that ‘without limiting subsection (2), an order may direct all persons in a specified group, or all persons residing in a specified area, to submit themselves for medical examination in accordance with the order’.

In Australia, all states and territories have statutory frameworks in place that allow them to declare a state of emergency or state of disaster in certain situations. While the definition of what constitutes an ‘emergency’ or ‘disaster’ differs in each state and territory, an ‘emergency’ is generally defined as an actual or imminent event that requires a significant and coordinated response. It represents a threat to life, persons, animals, property or the functioning of an essential service, and tends to include events such as natural disasters, pandemics or terrorist acts.

Each state and territory takes a slightly different approach to how a state of emergency or disaster declaration is made. In New South Wales, there is a single category of emergency declaration, and this is known as a ‘state of emergency’. Section 33 of the State Emergency and Rescue Management Act 1989 (NSW)  states that ‘if the Premier is satisfied that an emergency constitutes a significant and widespread danger to life or property in New South Wales, the Premier may, by order in writing, declare that a state of emergency exists in the whole, or in any specified part or parts, of New South Wales in relation to that emergency’.

Importantly, the Commonwealth lacks an express constitutional power to declare a state of national emergency. It may, however, have the power to do so either through the executive power in section 61 of the Constitution as part of its ‘nationhood power’, or its suite of legislative powers. The non-statutory executive power includes such power that is derived from the character and status of the Commonwealth as a national government. This aspect of the executive power encompasses powers necessary for ‘the protection of the body politic or nation of Australia’.[1] Nevertheless, there are limitations. A limitation being that it may not support coercive action affecting the rights of individuals.[2] Even if the Commonwealth’s non-statutory, non-prerogative executive powers did authorise certain coercive actions in limited circumstances, the High Court may approach questions of this nature conservatively.[3]

Furthermore, the Commonwealth Government does not have express power under the Constitution to make laws with respect to a declaration of a state of emergency. However, such a law could be valid if it can be characterised as being with respect to one or more of the Commonwealth’s legislative powers, even though a declaration of a state of national emergency is not, of itself, expressly stated as being the subject matter of one of the legislative powers. The Commonwealth’s legislative powers which may be exercised to support laws that provide for a declaration of a state of national emergency include:

• The external affairs power in s 51(xxix) of the Constitution;
• The power to make grants to the states in s 96 of the Constitution;
• The Territories power in s 122 of the Constitution;
• The Corporations power in s 51(xx) of the Constitution;
• The interstate or overseas trade and commerce power in s 51(i) of the Constitution;
• The communications power in s 51(v) of the Constitution;
• The power to make laws with respect to Commonwealth places in s 52 of the Constitution;
• Referral of powers in s 51(xxxvii) of the Constitution; and,
• The incidental power in s 51(xxxix) of the Constitution.

Whether the legislative powers of the Commonwealth would support a law that deals with a declaration of a state of national emergency depends upon exactly what the law provides for, and in particular, on what the effects of making the declaration are intended to be. On the current state of the law, the existence and scope of any power to take action affecting private rights in Australia, even in a time of crisis or emergency, appears uncertain.

 INFORMATION PROVIDED BY THE CONSTITUTIONAL FRAMEWORK FOR THE DECLARATION OF A STATE OF NATIONAL EMERGENCY PAPER PUBLISHED BY THE ROYAL COMMISSION INTO NATIONAL NATURAL DISASTER ARRANGEMENTS ON 8 MAY 2020.

[1] Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at [215] per Gummow, Crennan and Bell JJ.

[2] See Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 98 per Gageler J.

[3] Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at [10] per French CJ.

[4] Public Health Act 2010 (NSW)