Thresholds, Powers, and Accountability in the Emergencies Act

Abstract

It can be difficult for a legislature to clearly define an emergency or precisely describe different kinds of emergencies. In the context of emergency legislation some degree of vagueness and ambiguity is therefore to be expected. As a consequence, there will be some unavoidable uncertainty about the scope of the executive’s authority when it exercises its emergency powers. Legislatures can, however, avoid unnecessary ambiguity and vagueness in statutes, and thereby reduce uncertainty about the scope of emergency powers. Legislatures can also set out consultation mechanisms and impose reason-giving obligations that render the executive politically accountable to those affected by exercises of emergency powers. This paper proposes amendments that aim to eliminate avoidable uncertainty that arises from how the Emergencies Act currently defines a national emergency and a public order emergency. Further, the paper proposes amendments to the Act that aim to increase the executive’s accountability to those affected by declarations of public order emergencies.