STATES OF EMERGENCY –An overview of the legal process

The process commences with the issue by the President of a proclamation that a state of emergency exists. This remains in effect for an initial period of 15 days.

Upon issue, the President has three days to deliver to the Speaker of the House of Representatives a statement setting out the basis for declaring the state of emergency. The House of Representatives must then debate the issue within the 15-day lifetime of the proclamation, and vote on whether the proclamation ought to be extended.

Only a simple majority of votes is needed to extend the life of the proclamation, which can be for a maximum of three months at a time. The maximum aggregate of extensions cannot exceed six months, and any extension of time beyond that must be supported by at least three fifths of the House of Representatives and the Senate.

The declaration of a state of emergency by proclamation permits the President to immediately issue regulations which restrict constitutional rights during the life of the proclamation. These regulations permit the President to authorise other persons to exercise emergency powers, and conventionally these regulations have authorised the Commissioner of Police to impose curfews. These curfews are declared by the Commissioner and published as curfew orders.

While regulations issued during states of emergency can suspend constitutional rights, they can be challenged in the High Court (even though they are validly passed by Parliament) on the basis that they are not reasonably justifiable for the purpose of dealing with the situation that exists during the emergency. Loosely speaking, this means that the regulations can be challenged on the basis that they are excessive.