The spread of the novel coronavirus disease (COVID-19) to Australia is seeing unprecedented restrictions being put in place across Australia to attempt to prevent and control the spread of the virus. This article explains the legal framework under which these restrictions are being implemented.
Australia’s federal system of government
To understand the legal framework being used to control and prevent the spread of COVID-19 in Australia, it is first necessary to understand Australia’s federal system of government.
Australia operates under a federal system of government created by the Commonwealth Constitution.
Australia has three levels of government, being the Commonwealth Government, the State and Territory Governments and local councils. Among these levels of government, there is a division of powers.
The Commonwealth Government’s powers to make laws are limited to the powers that are set out in the Commonwealth Constitution.
The States have much broader powers to make laws than the Commonwealth, having the power to make laws on any matter relating to the State, subject to any inconsistency with Commonwealth laws.
The Territory governments have the powers of self-government granted to them by the Commonwealth.
Local councils have the powers granted to them under State and Territory legislation.
State and Territory public health laws
Under the division of powers that operates under Australia’s federal system of government, the power to make laws relating to the protection and promotion of public health is primarily a power of the States and Territories.
Each State and Territory has public health legislation which contains provisions which relate to managing risks to public health, such as the risks posed by communicable diseases like COVID-19. These laws are set out in the table below:
The laws in each State and Territory differ in their application, but each law contains provisions which relate to public health emergencies arising out of situations that cause serious risks to public health such as the current COVID-19 pandemic. The laws set out various powers that can be exercised in public health emergencies.
Each State and Territory also has emergency management legislation which contains powers that can be exercised in a broad range of emergency situations, ranging from bushfires, to floods to public health emergencies. In response to the COVID-19 pandemic, powers in emergency management legislation may also be exercised in conjunction with or alongside powers in public health legislation.
The State and Territory public health Acts are administered and enforced by powers granted to Ministers, government departments and local councils. The Acts set out the powers and functions of the State and Territory Chief Health/Medical Officers as well as the powers of officers authorised to administer and enforce the legislation. These officers are employed by State/Territory health departments and as environmental health officers working in local councils.
Authorised officers and environmental health officers carry out functions under the public health legislation such as contact tracing and enforcing compliance with the laws.
State and Territory police can assist in the enforcement of the public health and emergency management laws when called upon to assist.
Commonwealth Government laws relating to public health
In the Commonwealth Constitution, the only specific power which directly relates to public health is the Commonwealth’s power to make laws in relation to quarantine. The Commonwealth Government’s powers nevertheless also include powers to make laws in relation various other matters such as external affairs and immigration and emigration, under which laws can be made which achieve public health purposes.
The Commonwealth Government has enacted the Biosecurity Act 2015, which contains powers in relation to:
- declaring a human biosecurity emergency, which gives the Commonwealth Health Minister broad powers to impose requirements and give directions;
- the management of biosecurity risks at Australia’s borders;
- human biosecurity control orders that can be imposed on individuals for the purpose of managing risks to human health, such as requiring people to be quarantined, to wear protective equipment, to undergo examination by health professionals and to give samples; and
- determining what is referred to as ‘human health response zones’ that can apply to a specified area within a State or Territory for the purpose of preventing or reducing the risk of a human disease emerging, establishing itself or spreading, by imposing requirements such as restricting people from the entering and exiting the zones.
Communicable diseases such as COVID-19 pose biosecurity risks, meaning the powers in the Biosecurity Act 2015 are capable of being exercised by Commonwealth Government officials in response to the COVID-19 pandemic, if necessary.
The exercise of public health powers in response to the COVID-19 pandemic
The response to the COVID-19 pandemic in Australia is a national issue, but because public health legislation is primarily a power of the States and Territories, powers in the respective State and Territory public health Acts are primarily being exercised to respond to the pandemic.
A national cabinet made up of the Prime Minister, the State Premiers and the Territory Chief Ministers has been set up to consider the response to the pandemic at a national level. The national cabinet is receiving advice from government health officials such as the Commonwealth Chief Medical Officer and the State/Territory Chief Health/Medical Officers.
The national cabinet is not a formal arrangement under Australia’s legal and constitutional framework, but is a practical measure that has been put in place to manage the response to the pandemic.
Outcomes determined from the national cabinet are being used to guide decisions that are then made at the State/Territory level in relation to the exercise of powers available under the State and Territory public health Acts. These decisions include the exercise of emergency powers in the public health Acts that allow the imposition of the restrictions that are being put in place to control and prevent the spread of the virus.
By way of example to illustrate how the public health powers are being exercised at the State level, in Victoria, on 16 March 2020, the Minister for Health, Jenny Mikakos MP exercised her power in the Public Health and Wellbeing Act 2008 to declare a state of emergency in Victoria in relation to the COVID-19 pandemic. The effect of the state of emergency being declared is that it allows emergency powers in the Public Health and Wellbeing Act 2008 to be exercised by authorised officers. These emergency powers include the mandatory directions that have been made which have forced the closure of premises and the implementation of the numerous social distancing measures that have been determined at the national cabinet level.
Whilst the current approach of the national cabinet is to generally have consistent measures implemented across Australia, a potential benefit of the public health legislation operating at an individual State/Territory level is that if necessary, different measures can be imposed in different States/Territories. For example, if one State/Territory becomes more severely affected by the pandemic, that State/Territory can, in the exercise of their legislation, impose restrictions that relate only to that particular State/Territory.
At the Commonwealth Government level, on 18 March 2020, in the exercise of a power in the Biosecurity Act 2015, the Governor-General, acting on the advice of the Commonwealth Health Minister, Greg Hunt MP declared that a human biosecurity emergency exists in Australia in relation to COVID-19. In accordance with the Act, the human biosecurity emergency declaration is in force for a period of three months, but the Act allows the declaration to be extended for further periods of three months, if necessary.
- prevent or control the entry of COVID-19 into Australia; or
- prevent or control the emergence, establishment or spread of COVID-19 in Australia or any part of Australia; or
- prevent or control the spread of COVID-19 to another country; or
- give effect to any recommendations made by the World Health Organisation.
In the exercise of these powers, the Commonwealth Health Minister has, to date:
- imposed requirements in relation to international cruise ships entering Australian ports before 15 April 2020; and
- imposed requirements banning Australian citizens and permanent residents from leaving Australia after 12 pm on 25 March 2020.
Further requirements or directions may be made by the Health Minister, if required.
The emergency powers that are being exercised across Australia are having significant economic impacts and by their nature have impacts on the liberty of individuals. These impacts are being weighed up against the very serious risks to public health from inaction in accordance with guiding principles in the legislation such as the proportionality principle, which requires decisions made to be proportionate to the level of risk to public health.
All State and Territory public health Acts and the Commonwealth Biosecurity Act 2015 have criminal offence provisions in respect of people who fail to comply with requirements imposed on them by the laws. The enforcement powers in each Act vary, but enforcement powers are generally granted to authorised officers, environmental health officers and in some instances police officers can be called in to assist. The enactment of emergency management powers in State/Territory legislation can see a greater role played by police in enforcing restrictions.
Given the very serious risks posed by COVID-19, the public can expect that these laws will be rigorously enforced through infringement notices being issued (where the laws permit infringement notices to be issued) or through prosecution.
Who can help
Marcus Heath is a Special Counsel in our Government, Planning and Environment team, and is a sessional lecturer in Public and Environmental Health Law at Swinburne University of Technology.
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