Update: 31 August 2021

Since this article was published on 30 March 2020, all Australian jurisdictions have issued orders imposing compulsory quarantine requirements for people crossing into their borders


 

While the news is giving us rolling coverage of government-imposed restrictions and closures to prevent the spread of COVID-19, very few have discussed the legality of such orders.

This article identifies the sources and extraordinary extent of government power to issue the public health orders which have had such a major effect on our lives and businesses.

The National Cabinet

The National Cabinet of Australia is a forum established in response to the COVID-19 pandemic and comprised of the heads of the commonwealth, state and territory governments. The National Cabinet is designed to coordinate an intergovernmental approach to COVID-19 but does not itself have any legislative power in relation to public health. It takes advice from the Australia Health Protection Principal Committee, which is made up the Chief Health Officers from each state and territory, the Chief Medical Officer of Australia and representatives of key governmental departments.

The governments of Australia, the states and territories each have existing legislation giving very broad powers to make enforceable public health measures in their respective jurisdictions. Because health is generally a state or territory responsibility, the majority of COVID-19 orders have been enacted by the states and territories, with some significant variations between them.

 

Federal Powers

Under the Biosecurity Act 2015 (Cth) the federal government can make orders to manage the risk of contagion of infectious human disease, including the risk of such disease entering Australian borders and spreading within the country. Those orders include restricting a person’s movement to impose isolation at their home or in a medical facility.

The government can declare ‘human health response zones’, which could potentially be applied to fever clinics or other areas designed to assist and contain people recovering from COVID-19. The health minister may also order any requirement necessary to prevent the entry or spread of disease in declared ‘human biosecurity emergencies’.

To date, the Federal government has implemented restrictions and self-isolation requirements for travellers entering the Australian border, and a general ban on Australians travelling overseas under the Biosecurity Act 2015 (Cth) powers.

 

New South Wales

In New South Wales, the Public Health Act 2010 (NSW) (NSW Act) has been in force for almost 10 years and allows broad government powers to act to protect the health and safety of the public. In response to COVID-19, the NSW Act has given the Minister the power to issue enforceable orders for limitations on gatherings1, compulsory quarantine following arrival in NSW from overseas2 and compulsory self-isolation following a diagnosis of COVID-19.

The Minister’s powers to make those orders are derived from Part 2 of the NSW Act. The very broad scope of those powers is clear from Section 7 of the Act, which reads as follows:

Section 7:

  1. This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health.
  2. In those circumstances, the Minister—
    a.  may take such action, and
    b.  may by order give such directions,
    as the Minister considers necessary to deal with the risk and its possible consequences.
  3. Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary—
    a.  to reduce or remove any risk to public health in the area, and
    b.  to segregate or isolate inhabitants of the area, and
    c.  to prevent, or conditionally permit, access to the area.

The NSW Act prescribes serious penalties for breach of any order made under it, including fines and imprisonment.

There have already been cases brought and determined in respect of the public health orders and whether the powers given to the states and chief health officers.

The High Court of Australia and the Fair Work Commission have answered numerous questions already put to them.

 

What are the Public Health Orders and what can they do?

In NSW, Public Health Orders are made under the Public Health Act 2010 (NSW) to:

  1. promote, protect, and improve public health,
  2. control the risks to public health,
  3. promote the control of infectious diseases,
  4. prevent the spread of infectious diseases,
  5. recognise the role of local government in protecting public health.
  6. monitor diseases and conditions affecting public health.[1]

 

FAQs

This was considered in Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818.

The applicant (Ms Kimber) brought proceedings in the Fair Work Commission in which she sought an unfair dismissal remedy against after her former employer (Sapphire Coast Community Aged Care (‘Sapphire Coast’)), after she was dismissed for refusing to receive a mandatory flu vaccine on the basis of an alleged previous allergic reaction. The company dismissed Ms Kimber on the basis that persons that worked in aged care residences needed the vaccine to continue to work, and that an allergic reaction was not a valid reason for refusing the vaccine.

The Fair Work Commission found that as the requirement was in accordance with the Public Health Order, and as Ms Kimber could not complete her work requirements, she was validly terminated.

We have examined the implications of mandatory vaccinations in more detail in another article here: Can You Make Covid Vaccinations Mandatory for Employees?

This was considered by the High Court in Gerner v Victoria [2020] HCA 48 (10 December 2020).

There a restaurateur (Gerner) took the Victorian government to the High Court on the basis that there was a freedom of movement implied into the words of the Constitution, and that as a result of the implied terms, lockdowns were unconstitutional and unable to be enforced.

The High Court disagreed. Simply, the High Court found that freedom of movement was not implied into the Constitution, and was subject to the laws and rules of the land in any event.

 

This was considered in the case of Palmer v Western Australia. Mr Palmer, who owns a company in WA argued that it was a restraint of trade to close borders to citizens of other states.

He argued that (similar to the lockdown argument in Gerner) that the Constitution under s92 implied a freedom of trade without restrictions, and that namely, the WA government was in breach of that section by refusing access to the state from Australian citizens.

The High Court considered his case, however ultimately relied upon their position that the burden of the border closure was a proportionate response to the ongoing pandemic. This case may have a different outcome when circumstances do not justify the border closure.

 

Other States

All Australian states and territories have similar existing legislation giving them the power to make enforceable public health orders4.

The states and territories have used that power differently, depending on the assessed priorities in each jurisdiction. All Australian jurisdictions have each issued orders imposing compulsory quarantine requirements for people crossing into their borders.

The jurisdictions have also imposed varying penalties for breaching public health orders. All jurisdictions impose substantial fines, however, parties can also be subject to imprisonment if they breach an order.

 

The Exercise of Extraordinary Power

While supporting government action to stop the spread of infectious disease, the President of the Law Council of Australia has described the federal government’s powers under the Biosecurity Act 2015 as extraordinary and warned that they should be:

“approached with the utmost caution and … only used as a last resort”

The exceptional powers under the act do not have the types of safeguards and independent oversight protections afforded to our law enforcement and security agencies’ exercise of coercive powers.”

Public health powers are undoubtedly critical in preventing the spread of COVID-19. A cautious approach to the exercise of those powers is particularly important at a time of fear, uncertainty and potentially panic on the part of those of us enforcing orders and those of us subject to them.

 

See our other COVID-19 Articles here:

  • Can You Make Covid Vaccinations Mandatory for Employees? Here
  • Are you entitled to redundancy pay if your employer loses a service contract? Here
  • COVID-19 employment issues: standing down employees under the Fair Work Act. Here
  • Coronavirus disruption: delays to construction projects & how to respond. Here

 


[1] gazette.legislation.nsw.gov.au/so/download.w3p?id=Gazette_2020_2020-59.pdf
[2] gazette.legislation.nsw.gov.au/so/download.w3p?id=Gazette_2020_2020-49.pdf
[4] Public Health Act 2005 (QLD); Public Health and Wellbeing Act 2008 (VIC); Public Health Act 1997 (ACT); Emergency Management Act 2005 (WA); Notifiable Diseases Act 1981 (NT); Public Health Act 2011 (SA); Public Health Act 1997 (TAS).
[5] lawcouncil.asn.au/media/media-releases/law-council-of-australia-president-pauline-wright–statement-regarding-biosecurity-control-orders

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