I wrote the post ‘What is a ‘national emergency’? (December 25, 2019) in response to the summer bushfire crisis. It was my view then, and remains my view, that those fires did not constitute a ‘national emergency’. In response to the current COVID-19 pandemic a correspondent has written, in response to that post:
I guess this issue will be raised again now that we have a pandemic. Having separate States coming up with their own response, but the public and media looking to the PM to solve it, results in a circular blame game. Is their capacity in times like this for the federal government to direct state departments?
Based on work I did for my PhD and published work (‘Responding to catastrophic natural disasters and the need for Commonwealth legislation’ (2011) 10(3) Canberra Law Review 81-102; Michael Eburn, Cameron Moore and Andrew Gissing, The Potential Role of the Commonwealth in Responding to Catastrophic Disasters (Bushfire and Natural Hazards CRC, 2019) I argue there are three situations that would meet the definition of a true national disaster. They are:
- A disaster is having impact on areas allocated to the Commonwealth by the Australian Constitution;
- The disaster is so large that it overwhelms the ability of state governments to function
- The disaster is truly national in character or impact so that it is ‘peculiarly within the capacity and resources of the Commonwealth Government’ to manage the response.
The sort of situation that is covered by (2) above is demonstrated by the impact of Cyclone Tracey on Darwin in 1974 that destroyed local administration. This event is not of that nature. But the current crisis would, in my view, fit scenarios (1) and (3).
The Commonwealth, under s 51 of the Australian Constitution has the power to make laws with respect to:
- trade and commerce with other countries, and among the States;
- taxation; but so as not to discriminate between States or parts of States;
- borrowing money on the public credit of the Commonwealth;
- the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
- foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
- the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;
- immigration and emigration;
- external affairs;
- the relations of the Commonwealth with the islands of the Pacific;
All of those powers (and perhaps others that have been omitted from the list, above) are relevant here. Quarantine, determining who can enter or leave the country, meeting our obligations to other nations to be part of the national response all make it clear that this event is very much a matter of direct interest to and an emergency for the Commonwealth.
Secondly the size of the event, the fact that it is not restricted to state boundaries, the need to use the military and other commonwealth assets and the impact on the national economy (see Pape v Commissioner of Taxation  HCA 23) mean this is indeed a national emergency.
Unlike natural disasters (eg bushfires) the Commonwealth does have relevant legislation. The Commonwealth legislation is the Biosecurity Act 2015 (Cth). That Act provides for the declaration of a Human Biosecurity Emergency (Chapter 8, Part 2) which gives extensive powers to the Health Minister.
There is capacity for the Commonwealth to direct the states where that is provided for in the Act and where that can be implied as part of the Commonwealth’s executive power to manage the disaster. Section 109 says that where there is an inconsistent law the Commonwealth will prevail.
But power and how you make decisions are different matters. We have the ‘national cabinet’ which we are told is the PM and state and territory Premiers and Chief Ministers. The states still exist and employ the doctors and nurses, run the hospitals and have their own public health laws. Believing that you could manage this event ‘by direction’ would I suggest be unwise. Working with the states and communities is the only effective way to proceed.
This is a national disaster and the response is being led by the national government. The relevant disaster declaration has been made. The states still exist, so I don’t think the Commonwealth could order the state premiers not to appear on TV nor do I think the Commonwealth can manage this event on its own. The Commonwealth does have the power to direct the states in the areas of its constitutional responsibility.
I have just read through the section 51 sub, 9 on quarantine and it’s inclusion.
Because it is under trade it specifies plants and animals only in note 172.
Therefore this part of the argument may be floored, even though the scope gives Webster international dictionary definition of quarantine it is not impressed upon in the section of trade.
Regards P. Burke
The Australian Constitution says that the Commonwealth can make laws with respect to quarantine (Australian Constitution s 51(ix)). It is not ‘under trade’. The Commonwealth can make laws with respect to ‘trade and commerce with other countries, and among the States’ (s 51(i)) but all the other heads of power (s 51(ii) to s 51(xxxix)) are not ‘subheadings’ below trade and commerce. They are each seperate powers. You can read the Constitution here – https://www.aph.gov.au/about_parliament/senate/powers_practice_n_procedures/constitution. I have no idea what you are referring to when you say ‘it is under trade it specifies plants and animals only in note 172’.
Thankyou for your reply I stand corrected. It is under the section powers of the parliament. ..
It seems a limitation, note 172 annotated, “it will be able to provide for the isolation, segregation, remedial and preventive treatment of animals and plants and their diseases wherever found within the commonwealth.
It is not expressly granted to mention people.
Paul, I think you are reading from Commentaries on the Constitution of the Commonwealth of Australia by Sir Robert Garran (1867-1957) digitised by the University of Sydney (http://adc.library.usyd.edu.au/data-2/fed0014.pdf). That annotation (which is not part of the Constitution) also says that quarantine ‘is now comprehensive enough to cover any forced stoppage of travel, or of transit, or of communication, as well as compulsion to remain at a distance, or in a given place, without intercourse, on account of any malignant, contagious, or dangerous disease on land as well as by sea.’ It also says ‘The Federal Parliament may deal with quarantine without reference to the interests of trade and commerce, but as an independent question having regard to the sanitary condition and welfare of the Commonwealth as a whole. ‘ It does then give animal and plant examples but they do not define what the term means in the Constitution.
Remember too that most of the current restraints are being imposed by state public health law. The Commonwealth is the authority making quarantine for those that arrive in Australia compulsory; but it is states that are prohibiting gatherings of more than 2 etc. See https://www.maddocks.com.au/blog/understanding-the-legal-framework-behind-the-governments-public-health-response-to-covid-19/ for more discussion on those issues. See also
I would not be relying on Garran’s commentary (notwithstanding his position as one of the authors of the Constitution) to say that the quarantine power is limited to plant and animal disease because there is nothing in s 51 to say that. And, as noted, most of the current restrictions are being imposed under state not Commonwealth law so the argument is not relevant (and no doubt intentionally so).
See also https://www.russellkennedy.com.au/insights-events/insights/the-legal-framework-helping-to-control-and-prevent-the-spread-of-covid-19-in-australia
I note also that you say the quarantine power is ‘not expressly granted to mention people’ and equally it is not expressly limited to animals and plants. It is a power with respect to quarantine and there is no reason, in the Constitution, to read that down to animals and plants only. The word means what it means.
Human beings are animals.
True. Not expressly given but as the annotated says, note 33 under “and all laws” “whatever is not granted to the government it is denied. “ so it would follow the path. Undeniably.
Two Lords ,framers wrote the annotated Constitution therefore it’s form is more a wider constitution I thought. Sir Robert Garran and Sir John Quick. As a kings bench is respected.
Of the descriptions To give the wide form would not be true, as it is taken from Webster’s international dictionary as a description not an implication of the description itself. But the section of commentary I have suggested speaks directly by implication of the said government. The federal Australian government.
Therefore “subject to this constitution” applys. To my thinking.
Section 5 this act and all laws…. notwithstanding anything in laws of any state;…..
How then as with the finding of the high court that there is no express powers Of emergency found to the federal government, that the states have taken these communistic extreme measures of control with fear tactics of fines lauding in this way?
Chapter 5 : note 33 “and all laws” A law in excess of the authority conferred by the Constitution is no law; it is wholly void and inoperative; it confers no rights, it imposes no duties, ; it affords no protection.
Note 34, “ shall be binding on the courts, judges and people.”
Therefore by this clause, coupled with sections 106 to 109, all the laws of a State, constitutional as well as ordinary, will be in effect repealed so far as they are repugnant to the supreme law.
Why is there not a noble man protecting the rights of the people against this Tyranny?
Surely an asking government as with the prime minister, asking, I freely may submit and have the merit of a gentleman.
I wish you good health.
I’m afraid that this comment is a bit of a ramble, and this conversation is getting a bit pointless because my commentator is not going to be persuaded, and even if he’s right and this is all unconstitutional, it’s in place unless and until someone takes it to the High Court. Recognising that this is therefore all a bit moot this is my response:
I agree, and have said on this blog before, that as a rule of thumb an individual can do whatever they like unless there’s a law that says they can’t; and governments cannot do anything unless there’s a law that says they can. Here the Constitution says that the Commonwealth can make laws with respect to quarantine – an express power (as Garran notes in his commentary). To read that as ‘quarantine with respect to animal and plant diseases’ is to put words in the Constitution that aren’t there. Second the executive government has laws to allow them to impose the restrictions they are, the Biosecurity Act 2015 (Cth) and the public health legislation in each state and territory.
The commentary by Garran, or Quick and Garran, is a commentary it is not a ‘wider’ constitution.
The states can make laws on any subject they like; where those laws are inconsistent with a valid law of the Commonwealth, the Commonwealth law prevails (s 109). It follows that even if quarantine in s 51 is restricted as suggested, that has no impact upon the powers of the states to make laws with respect to public health. And the Commonwealth and states are working together so I cannot see any suggestion of inconsistency – they are regulating different aspects of our behaviour.
The fact that the Commonwealth cannot suspend law or the Constitution even in an emergency is irrelevant. No-one’s trying to suspend the Constitution. The Commonwealth and states are acting in accordance with current law.
“Why is there not a noble man protecting the rights of the people against this Tyranny?” During the Global Financial Crisis my friend and colleague Bryan Pape took the Rudd government and their stimulus package to the High Court arguing that it was beyond power. My commentator is free to do the same.
For interest see ‘Coronavirus, emergency laws and civil liberties: Are our rights and freedoms at risk?’ ABC (Online) (3 April 2020) (https://www.abc.net.au/news/2020-04-03/coronavirus-emergency-laws-and-civil-liberties/12114042). That article does raise similar concerns about the impact of these laws on our rights and freedoms. But just because these concerns exist does not mean the Constitution is going to protect us – the Australian Constitution does not have a Bill of Rights. In Al-Kateb v Godwin  HCA 37 the High Court confirmed that the executive government can order a person’s indefinite detention – without trial and without allegation of criminal conduct. Whatever rights we enjoy are based on unstable ground. That this crisis demonstrates that does not somehow make the Constitution say something it does not.
Great article Mr Eburn. Thank you
Interesting points raised here. Thanks.
The new ruling re wearing face coverings in Metro Melbourne and the Mitchell Shire appears to conflict with the Australian Constitution. See Article 51 Section XXiiiA
“….but not so as to authorize any form of civil conscription.”
There is no chance the ruling on face masks is a breach of s 51(xxiiiA). First you have quoted the section out of context. It does not say there can be no ‘civil conscription’. It says
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:… (xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;
The laws about face masks in Melbourne is not a law of the Commonwealth. It is an order made under a state law. Whatever limitations s xxiiiA imposes on the power of the Commonwealth to make laws, it does not apply those same limitation on the states.
Second the orders about face masks are not laws about ‘the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services’ so the limitation ‘but not so as to authorize any form of civil conscription’ is not raised.
Third the concept of civil conscription in s xxiiiA is related to the provision of ‘medical and dental’ services rather than the whole list of matters listed in the section. In the material promoting the ‘yes’ vote in the referendum that amended the Constitution by inserting s xxiiiA it was said ‘This means that doctors and dentists cannot be forced to become professional officers of the Commonwealth under a scheme of medical and dental services” (Wong v Commonwealth of Australia; Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309  HCA 3, ). Even if it applied to all the matters listed in s xxiiiA the gist of civil conscription is ‘the compulsory provision of service or doing of work for the Commonwealth, or for a third party as directed by the Commonwealth’ (Wong, ). The obligation to wear a mask is not an obligation to do work for the Commonwealth any more than the obligation to wear a seat belt when driving a car or PPE when doing dangerous work. (For a more detailed discussion of Wong’s case and the meaning of civil conscription, see https://emergencylaw.wordpress.com/2020/04/20/mandatory-vaccination-for-qas-paramedics/#comment-41473).
The new ruling re wearing face coverings in Metro Melbourne and the Mitchell Shire does not conflict with the Australian Constitution s 51(xxiiiA).
So would it be in your reply that you have reversed the limitations of the parliament to be: whatsoever is not granted in this constitution is automatically accepted as granted. ?
As opposed to what it does say, “whatever is not granted in this constitution is denied to the parliament (government).”
The states must follow the commonwealth in most matters. But I see a trending push for the likes of yourself and many of the ptb to link our system as a republic with many states and no common law, like America.
But we have a common law for the High Court has appellate jurisdiction in EVERY COURT IN EVERY DECISION IN THE LAND, Have we not? That is being, How do they bind the people of the commonwealth to restrict their breathing in the open air? Or say they own the public area and make these un lawful, acts to bind people? What sort of a man does not see the torturous inhumane impositioning of such an act and who knows the conflict not say where it is and be a statesman and declare it? If the cap fits Michael.
The Commonwealth parliament is a limited parliament. It can only make laws on the subject matters listed in the Constitution. That same limitation does not apply to the States. The states can make laws on any subject other than those that are the exclusive powers of the Commonwealth.
The States don’t have to follow the Commonwealth ‘in most matters’. The Commonwealth is a jurisdiction that has its areas of responsibilities. The states have theirs. Where they overlap s 109 says an inconsistent state law is invalid to the extent of the inconsistency. Where they don’t overlap, that is where a matter is a matter only for the States, then they are not subject to Commonwealth direction. State governments do not stand below the Commonwealth in the way local government is subject to direction from State government.
Yes the High Court is the ultimate court of appeal for each jurisdiction, state, territory and Commonwealth. But how is that relevant to an order to wear masks? The High Court rules on law – does the state have the power to make the law in question? The question is can a state, under a public health law require the wearing of face masks? The answer is ‘yes they can’ just as they require people to wear motorcycle helmets and people in dusty environments to wear respirators.
I have no idea what ‘cap’ you are talking about. If you mean that I must ‘see the torturous inhumane impositioning of such an act’ (ie requiring the wearing of face masks) and must know that this is a conflict with some principle but I should ‘be a statesman and declare it’ then I disagree. I cannot see that wearing a face mask is either torture or inhumane. I cannot see that the orders are in breach of any limitation express or implied by the Australian Constitution. The common law is subservient to statute law so even if there was a relevant common law principle it cannot make a statutory rule ultra vires.
None of that has anything to do with s 51(xxiiiA) which is the subject of the comment to which you were replying.
Michael, I’m interested in your opinion on this provision, in relation to those challenging the no jab/no pay policies regarding cuts to Family Tax Benefit and Childcare Subsidy. I have often seen this contention posted in various places online, and I disagreed from the start. To my understanding it is inconsistent with the interpretation of the subsection in both Federal Council of the British Medical Association in Australia v Commonwealth (1949) 79 CLR 201 and General Practitioners Society in Australia v Commonwealth (1980) 145 CLR 532. I have yet to look at the Wong v Commonwealth  HCA 3; 236 CLR 573 case to see if that interpretation has been overturned, but I assume the ratio remains the same. There is even some law firms with fundraising accounts to challenge the policies, which appears to me, if my assumptions are correct, to be contrary to codes of conduct.
Thanks in advance – Rob Sudy
I haven’t seen a discussion of ‘those challenging the no jab/no pay policies regarding cuts to Family Tax Benefit and Childcare Subsidy’ but I infer from what you’ve written that they are arguing this is some form of civil conscription. If that is the argument it is of course rubbish, the limitation in s 51(xxiiiA) is ‘… , medical and dental services (but not so as to authorize any form of civil conscription), …’ so it’s payments for medical and dental services (ie Medicare) and the civil conscription that is not authorised is the conscription of medical and dental practitioners – we cannot have a UK National Health Service. Family Tax Benefit and Childcare Subsidy are not payments for medical and dental services (even if they are linked to having a medical procedure) nor is it civil conscription. I discuss Wong’s case in the comment above (https://emergencylaw.wordpress.com/2020/03/25/what-is-a-national-emergency-answer-covid-19/#comment-42893) and also at https://emergencylaw.wordpress.com/2020/04/20/mandatory-vaccination-for-qas-paramedics/#comment-41473. I think that really deals with the issue but the law can be tested so law firms can look for potential plaintiff’s to try and test a proposition. Whether that is contrary to any rules of practice would depend on their arguments and the facts they hope to prove to test their theory so I wouldn’t be prepared to say that action (which I haven’t seen) is ‘contrary to [professional] codes of conduct’.
Thank you very much for your responses and links Michael, they are very helpful.
I must also comment on the remarkable service you are providing to the wider community with your blog. It is very much appreciated and desperately needed at this time. Especially the time and patience you put into answering all these questions for everyone so succinctly and accurately, it is truly an amazing effort.
Best regards – Rob
Thank you and at the risk of running a mutual appreciation society let me thank you for your blog which is a phenomenal tool for understanding and responding to, the ‘sovereign citizen’ claims. The research you have done and the resources you have found is amazing given that I don’t think you are a lawyer. Well done.
Cheers for your compliments. No I didn’t even graduate primary school, let alone gain a formal legal qualification. I was once a sovereign citizen myself, and I failed in the courts, so instead of remaining ignorant I made the search for a correct understanding a personal quest. Ironically, the same magistrate now refers my work to his associates, and recommends it to his students as a practice professor. It’s been one big learning curve for me. I’m going to be co-authoring a paper with Donald Netolitzy my Canadian equivalent at some point. Thanks again.
Leaving the Constitution behind, and just focussing on the Biosecurity Emergency enacted by the GG on a National level.
Firstly you mention above:
There is capacity for the Commonwealth to direct the states where that is provided for in the Act and where that can be implied as part of the Commonwealth’s executive power to manage the disaster. Section 109 says that where there is an inconsistent law the Commonwealth will prevail.
My question is regarding face masks and vaccinations etc.
Under the Biosecurity Act, Section 477 (6) and Section 478 (6), both state that the Chief Med Officer cannot impose any restrictions contained in a Biosecurity measure upon an individual unless that individual actually has a disease or suspected of having said disease Division 2, Section 60 (2).
A Biosecurity measure is listed under Division 3, Subdivision A, Section 82-95 as a Biosecurity Control Order on an individual … which then includes masking, testing, vaccines, managing contacts, and an emphasis on Section 95 of the “no use of force allowed”.
In the Vic Public Wellbeing Act it is repeated (Section 117) that any measures taken against an individual, such as a Public Health Order, again requires ascertaining that the individual actually has or is risk of contracting or passing on the disease.
So my question is, can Victoria make their own laws if it contravenes the Biosecurity Act requirements of the Biosecurity Control Orders.
If so, then it seems to be, the protections offered to healthy people under the Biosecurity Act is totally useless and should be removed.
Your thoughts please, if you have the time.
I don’t see that ss 477(6) or 478(6) say what you say they say. Section 477 and 478 provide that the Health Minister may exercise various powers but the Minister ‘must not require an individual to be subject to a biosecurity measure of a kind set out in Subdivision B of Division 3 of Part 3 of Chapter 2’ (ss 477(6) and 478(6)). So who can ‘require an individual to be subject to a biosecurity measure of a kind set out in Subdivision B of Division 3 of Part 3 of Chapter 2’? The answer is in s 82 which says:
As noted s 60(2) says:
The list of biosecurity measures that may be included in a human biosecurity control order are:
85 Managing contacts
86 Contacting officer with health status
87 Restricting behaviour
88 Risk minimisation interventions (which includes wearing specified clothing or equipment so presumably that would include a mask)
90 Undergoing an examination
91 Requiring body samples for diagnosis
92 Receiving a vaccination or treatment
93 Receiving medication
94 Appropriate medical or other standards to be applied
95 No use of force to require compliance with certain biosecurity measures
96 Traveller movement measure
97 Isolation measure
If the requirement that a restriction can only be imposed on a person who has one or more signs or symptoms of a listed human disease or has been exposed to the disease applied in Victoria, the obligation to require everyone to wear masks would not be permissible.
So the question is ‘do those provisions apply to the action in Victoria?’
The Public Health and Wellbeing Act, s 117 refers to making public health orders directed to individuals. The Chief Health Officer has to believe (s 117(1)(a)) that ‘a person has an infectious disease or has been exposed to an infectious disease in circumstances where a person is likely to contract the disease’. In the absence of that belief, the Chief Health Officer cannot direct a named individual to wear a mask.
But that is not what is happening. The masking orders are being made under Part 10 Division 3 Emergency Powers – see for example the Stay at Home Directions (Restricted Areas) (No 10) (8 August 2020) which is made under s 200, not s 117, of the Public Health and Wellbeing Act. The powers under s 200 may be directed to a group, not named individuals.
So the first conclusion is that the requirements in s 117(1)(a) do not restrict the power of the Chief Health Officer under s 200. Does the Commonwealth law restrict the Chief Health Officer? If the Victorian law is inconsistent with the Commonwealth law, the Commonwealth law prevails (Australian Constitution, s 109).
In an earlier post, Responding onto defence areas (June 1, 2014) I said:
In another post Is an incorporated bush fire brigade a ‘bush fire brigade’ for the purposes of the Bush Fires Act 1954 (WA)? (May 5, 2017) I said:
The Biosecurity Act 2015 (Cth) is not intended to cover the field that is unlike the Marriage Act it is not intended that the Biosecurity Act will be the only law in the area. The Act contemplates that state laws will operate in this area. Section 8(1) is headed ‘Concurrent operation of State and Territory laws’ and says ‘This Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act…’
Is it possible to comply with both Acts. In my view it is. The Biosecurity Act imposes limits on decisions by Commonwealth officers – the Minister and Commonwealth Chief Health Officer but not on state officials. The Commonwealth Act also allows general directions to be given by the Minister but limits directions to named individuals, as does the state Act. The state Act may apply in areas that are outside the Commonwealth’s ambit. There is a state and Commonwealth legislation to ensure that there are no gaps but they are not that different.
Orders can be made to a ‘group’ or cover an area (eg Public Health and Wellbeing Act s 200; Biosecurity Act s 477) or to named individuals (Public Health and Wellbeing Act s 117; Biosecurity Act s 82). In Victoria they are not naming every member of the Victorian population and directing them by name to wear a mask so the restrictions in either Act don’t apply.
The answer then is that the States can make laws to work with the Biosecurity Act but not that are inconsistent with that Act; but I cannot see that the Public Health and Wellbeing Act is inconsistent with the Commonwealth Act. The Commonwealth Act does not purport to cover the field (s 8) and a state official making orders under s 200 is not contradicting either s 117 of the Victorian Act or s 60 of the Commonwealth Act.
In regards to the commonwealth of Australia act section 51 subject 9 Quarantine.
Isn’t the federal government in charge of quarantine not state and if so why are the state governments controlling the quarantine process? The state government can’t make anyone quarantine per the constitution. Is this right? If so then they have no authority to make anyone quarantine once arriving and if so they are committing a crime through force.
No that’s not right. The Constitution says “The Parliament shall, subject to this Constitution, have power12 to make laws for the peace, order, and good government of the Commonwealth with respect to: … quarantine”. So the Commonwealth CAN makes laws about quarantine but the list of matters in s 51 is not necessarily exclusive, that is the States can ALSO makes laws about quarantine. If there’s a conflict that is the state laws and commonwealth laws cannot both be complied with, then the Commonwealth laws prevail. The states AND the Commonwealth can impose quarantine laws.
Doesn’t Section 69 remove the states ability to do quarantine ?
“On a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth:
posts, telegraphs, and telephones;
naval and military defence;
lighthouses, lightships, beacons, and buoys;
But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment.
My apologies if this has been covered
No that doesn’t remove the state’s ability to impose quarantine, it must means that those public sector units were moved to the Commonwealth. It doesn’t mean they cannot create different administrative arrangements later. See https://www.interstatequarantine.org.au/