What Happens to My Rights During a Declared Emergency?

This is the question that matters most to ordinary people when an emergency is declared. Section 233 of the Constitution answers it precisely.

Section 233(1) and (2) — the power

An emergency law may make provision for the peace, order and good government of the country to the extent reasonably required for achieving its purpose.

Two cumulative tests, both of which must be satisfied for every provision: reasonably necessary to deal with this emergency, and reasonably justifiable in a democratic society. The content of the second is supplied by section 39, including the wide range of material a court may consider under section 39(3).

Section 233(3)(a) — six rights that cannot be altered

No emergency, however grave, permits torture or inhuman treatment, the intentional taking of life outside section 35, compelled religious observance, the cancellation of the right to vote, or discrimination between citizens.

Section 233(3)(b) and (c) — liberty and protection of the law

• An emergency law may provide for internment only in accordance with Division X.5; and
• it may alter section 37 (protection of the law) or section 42 (liberty of the person) only to the extent allowed by paragraph (b).

So sections 37 and 42 can be affected only through the internment provisions, on their own terms — not by general emergency legislation.

Section 233(4) — extra limits on Emergency Regulations

Emergency Regulations are made by the Executive rather than by Parliament, so four further rights are placed beyond their reach. An Emergency Regulation may not alter:

• Section 46 — freedom of expression;
• Section 47 — freedom of assembly and association;
• Section 49 — right to privacy; and
• Section 51 — right to freedom of information.

An Emergency Act may reach these rights (subject to section 233(2)); an Emergency Regulation may not. That distinction is worth checking whenever a restriction on speech, assembly, privacy or information is imposed during an emergency: which instrument imposes it?

Section 40 — how emergency laws are read

Nothing in Part III invalidates an emergency law. But, so far as is consistent with their purposes and terms, all such laws shall be interpreted and applied so as not to affect or derogate a right or freedom more than is reasonably necessary to deal with the emergency and matters arising out of it — and only so far as is reasonably justifiable in a democratic society.

Section 40 is a rule of construction that applies to every emergency law, including at the moment it is applied to you.

Remedies during an emergency

• Section 41 — an act done under a valid emergency law is still unlawful if, in the particular case, it is harsh or oppressive, not warranted by or disproportionate to the requirements of the case, or otherwise not reasonably justifiable.
• Section 57 — the courts’ enforcement jurisdiction is not suspended.
• Section 58(2) — expressly contemplates damages for an infringement caused by a derogation of the restrictions specified in Part X.5 on the use of emergency powers in relation to internment.
• Parliamentary supervision — the 21-day expiry, the two-month extensions by absolute majority, the Prime Minister’s statement at every meeting, and the Emergency Committees from which Ministers are excluded.