In Challenging COVID restrictions – part 1 (23 April 2020) I discussed the difficulty of challenging the COVID restrictions on the basis of some alleged breach of human rights. Even if that is not possible, there are ways to challenge the orders. For this exercise I will use NSW and ACT as my exemplars.
The various orders in NSW are set out at https://www.health.nsw.gov.au/Infectious/diseases/Pages/covid-19-phos.aspx. Let us take, for example, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (30 March 2020). That order is said to be made under s 7 of the Public Health Act 2010 (NSW). That section says;
(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.
That is a very broad power. There are no limitations on what the Minister may consider or may ‘direct’. The Minister’s decisions may be subject to ‘administrative review’ (s 7(7)) but again that takes time. Further given the width of the power unless you could show ‘bad faith’ (ie he did not hold the belief required by s 7(1)) or that the decision was Wednesbury unreasonable ie ‘so unreasonable that no reasonable authority could have decided that way’ (named after the decision in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223).
In Part 1, I quoted from Addisons lawyers’ blog post What is the scope of government powers in response to COVID-19? (6 April 2020) which set out the sort of powers state governments can exercise. Whilst one could go through each order, paragraph by paragraph, to ask whether the Act allows such a restriction, there is no serious question (that I can see) that the states do have the power to make the sort of orders they are making. Further the power is given to them by law, it is not the executive government simply ruling by decree, rather the need for these powers has been identified and they have put in place to be used in exactly the circumstances now confronting Australia and the world.
Again an individual may think the orders ‘go too far’ but that is not grounds to set them aside if the Minister held the necessary belief and the orders are such that it is not unreasonable to think they are necessary even if it could also be reasonable to think they are not. It is the Minister’s state of mind that is relevant and the fact that some people would have made a different decision does not mean that the Minister’s decision does not stand.
Finally there is the question of enforcing the orders. As we have seen this has been largely left to police. The orders have been written quickly and have drafting errors. Some have pointed out that in NSW it says ‘a person must not, without reasonable excuse, leave the person’s place of residence.’ It does not say that once you have done what was ‘reasonable’ you have to go home so if you leave with the reasonable excuse of undertaking exercise, there is no breach if you chose not to go home after you have finished your exercise (see The Wigs, Episode 9 – Are the NSW social distancing laws fatally flawed (and other aspects of the public health law response to Covid-19) (4 April 2020).
The NSW order says ‘For the purposes of subclause (I), a reasonable excuse includes doing an activity specified by Schedule I’. Schedule 1 contains a list of activities but others have noted that the use of the word ‘includes’ in [5(2)] means that the list is not exhaustive (Australian Criminal and Family Lawyers, The Stage 3 Coronavirus Lockdown Laws Explained (undated)). There may be other things that constitute a ‘reasonable excuse’ even if we don’t know what they are.
In the ACT we are allowed to have two people visit at a time provided that ‘social distancing of 1 person per 4 square metres can be observed’ (Public Health (Non-Essential Gatherings) Emergency Direction 2020 (ACT) (31 March 2020)). Note that it provides that it must be the case that the social distancing ‘can’ be observed, not that it ‘is’ observed. Arguably there is no offence even if everyone is cuddled together provided the floor space is such that the distance ‘can’ be observed.
What happens if the police issue an infringement notice? That does not set a precedent. If a police officer issues a ticket to someone sitting on a bench eating a burger, that does not mean that the person’s conduct was unreasonable. It means in the mind of that police officer it was unreasonable. An infringement notice is just an allegation. People are entitled to deny the allegation and the police then have to prove the case, beyond reasonable doubt, before a court. The burden is on the plice to prove that there was no ‘reasonable excuse’ or whatever is alleged to be a breach of the relevant order.
If you allege you left your NSW home to go to work and the allegation is that you did not, that you are lying, that is a question of fact. If a magistrate found against you that would be the end of the matter. If on the other hand if you argued that you were going to visit your mother and the Magistrate did not think that was a reasonable excuse that would be a question of law and something that could be taken to the Supreme and ultimately the High Court of Australia. Their determination would be a precedent for future reference.
Anyone who receives an infringement notice retains the right to challenge it. For a much more detailed explanation of what the police can and cannot do and how to challenge their allegations, see again (Australian Criminal and Family Lawyers, The Stage 3 Coronavirus Lockdown Laws Explained (undated).
Conclusion Part 1 and 2
If you believe that being directed to shave, or to have a flu vaccination to continue to work, or being told to stay at home is a step too far you can do something about it. What you cannot do is simply point to a rule or a document such as the International Declaration of Human Rights or the Human Rights Act 2004 (ACT) and say ‘but I have a right’. Equally writing to your local member or the Attorney-General pointing out that there are rights involved won’t help. The governments of the world have lots of lawyers who are aware of human rights obligations. Acts like the Biosecurity Act 2015 (Cth) and the state and territory public health Acts were written by people who understand law and were subject to parliamentary scrutiny. You won’t be telling them anything they don’t know.
The only place that can give a definitive ruling on law is a court so you would need to bring a legal action arguing that the various orders are beyond the powers granted under legislation or are so unreasonable that no Minister or Health Officer, having regard to the matters they are required to consider, would make such an order. Good luck to anyone who wants to bring those actions.
There will no doubt be challenges to individual infringements where people will challenge allegations that their conduct was in breach of the various orders. Those challenges may also call into question the validity of the orders but will face all the problems discussed above.
A plea
What follows is that there is no point writing long treatises to me trying to convince me that these orders are unreasonable or beyond power. Whether I agree with you or not won’t make the slightest difference. The legal principles are set out above. What is left are questions about facts – what is the evidence that the governments of the world are relying on and what is the advice they are receiving and is their response reasonable in those circumstances.
Australian Emergency Law 
Thanks again for your reasoned explanation. It makes sense to me as a Registered Nurse and non-lawyer and gives me the facts to argue for the continued imposition of the current restrictions. Much appreciated. R
you argue for the restrictions and use of disposable masks that do not stop microscopic viruses and induce hypoxia or against?
I don’t argue for or against, I describe and explain the law.
Thankyou for this.
I am really tired of seeing and hearing fools say they have rights.
I too have a right. That is for me to go shopping or to the Chemist without having people deliberately spreading any virus droplets.
I have been prompted by recent coverage of the seemingly random outcomes for citizens and residents seeking approval to leave Australia to look for the authority to restrict freedom of movement. It doesn’t appear in either the Migration Act or the Biosecurity Act or their legislative instruments- there are very broad provisions but none restricting in a general way capacity for outbound travel. The Home Affairs web page says nothing about the legal basis. Requiring approval to travel without cause is after all a serious restriction of common law rights normally requiring specific legislation and limited to serious cause. Many things would be very reasonable- tests, isolation, quarantine etc – but simply saying you may not travel except for a reason of which we approve is something else altogether. The same can be said for restricting the ability of a citizen to enter Australia, although the Biosecurity Act provides strong powers- I don’t happen to like the current application of them, but the recent difficulties in managing quarantine make them more reasonable.
I agree; I’m sure I did find the legal basis for these restrictions but like you I cannot find them now. The Border Force website says this ban is in place but gives no advice or link to a document to confirm the legal basis for it and that is problematic.
I have found the legal basis for the travel ban! It is the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020. It is a determination made by the Minister for Health acting under s 477(1) of the Biosecurity Act 2015 (Cth). It can be accessed via the Federal Register of Legislation.
Thanks. It’s telling that the determination says nothing about which specific provision is being used. It’s what you might call protective drafting. You can’t exactly question an unstated reason.
have you spoken with someone from the medical side of things regarding the validity of testing, what the tests are “looking” for, what they are “finding” and whether masks and limiting groups is in any way a valid logical attack on this “virus”?
No
Thank’s for the information and opinions on your blog site. I came across your efforts while researching the legalities surrounding this COVID situation. Your last paragraph almost answers the question I had in mind when I began reading some of your posts yesterday. However I still would like to spell it out in more detail to be sure.
I’m not a professional in law, just a small businessman. What knowledge I have has been gleaned through my experience directly with a bit of research more recently. I am part of a class action lawsuit headed for the High Court hopefully and about which you may be aware. AdvocateMe being the organisation as such initiating it. If you have, it would be very interesting to know your option and comments about it. I also reconise your time is limited and no doubt you are a busy man so if not I won’t presume to ask you to.
I personally don’t have any doubt that on procedural grounds the governments, state and federal will have all their ducks in a row. Most politicians are lawyers and they’ve got the budget for the best as well. It is not the laws as such or their reach which I would be inclined to challenge. As you’ve pointed out we have fewer rights chance than most countries, lacking as we do a Bill of Rights. To my understanding we have Common Law as our highest law but that’s a difficult arena and I don’t see any solution there anyway, in the event of a public health emergency. My challenge would take the form of a challenge of the facts and legalities of the emergency which declaration sets the stage for the loss of rights which would otherwise seem obviously to be overreach.
These questions will be brief and lacking in detail because to go into any of that would make this post into a short story length if not a novel.
Q: What difference if any would some or all of the following have on the situation if they were part or all of the submission to the court?
If I/we can prove that: The statistics of the ‘pandemic’ as they are officially asserted and recorded do not meet the standards of a pandemic by Australian law? The death rate is actually within the range of a typical flu season and the mortality rate of those who even become ill with this ‘virus’ is also similar to the seasonal flu. Furthermore if we could prove that most deaths attributed to COVID are wrongly attributed, that the method of recording cause of death has been manipulated to ensure maximum number of attributions.
The so-called case load is the deciding factor governments use to inform their responses. This is established using a PCR test mostly. If we can prove that the PCR test being used to test for this thing is unsuitable for the task? This was already established in Portugal in a court case regarding two German tourists who were quarantined on the basis of the test for the record and I believe this could inform the court here if not act as a precedent. The inventor of the test categorically stated that the test was not suitable for testing for active infection. That the test has a procedure called the cycle rate which effectively allows the sensitivity to be dialed up or down. High enough cycle rate would show everyone tested to be positive and low enough would show nobody so. That absent this cycle threshold information the results are utterly worthless. That this cycle threshold is being run so high that experts assert it is beyond useless. That this explains why the majority of so-called cases are asymptomatic. The people simply do not have an infection from this virus.
The only scientific backing for the use of this test in this “pandemic” was a single paper presented by some scientists with vested interests and which was shredded by 20 of the world’s top virologists and subsequently withdrawn. There is now no scientific backing for its use. The expert opinion is unanimous in decrying its use at all for the purpose assigned.
That masks and lock-downs have been shown to be ineffective and actually harmful to community health. Not even the WHO supports them anymore.
The biggest one to me though is this. What if we can prove that a cheap, effective and established cure for ALL corona-viruses has been suppressed since the beginning and denied to be of any use, asserted falsely to be dangerous and doctors have been threatened for even administering it? The obvious conclusion for this suppression was to keep the field open for approval of vaccines because they’d not get approval if a cure was already approved. However there is a secondary purpose which may or may not be relevant but if raised it certainly puts a different complexion on things. Since the 1970s all biological weapons research has involved corona-viruses. The cure which is very safe, very cheap and very effective is a cure for ALL corona-viruses. The implication of this is that it makes redundant hundreds of billions of dollars of bio-weapons research and stockpiles. On top of blocking trillions of dollars worth of vaccine profits.
If any or all of these could be proved, would this not render all emergency declarations invalid?
I am quite sure these can all be proved. The information was initially gleaned from the internet but this is just an information source. The information and facts exist on the ground to correspond with it. The excuse of it being on the internet is nonsense. The net is a record of thins true or false but the fact it is on the net isn’t in itself a handicap. Indeed scientific studies are publish first on the internet these days.
Sorry this is longer than I’d have wished and I do hope you have time to consider this. It doesn’t seem possible that governments or health departments would be able to arbitrarily declare an emergency and bring all this power into being, but that they would have to be able to justify it and meet necessary benchmarks. These must surely be open to challenge?
There are two ways to challenge an administrative decision. One is that the law does not allow the decision maker to act. On that point I note that the common law is not the highest law. The common law is subservient to legislation.
The other is to challenge the factual basis for a decision. If a decision maker took into account matters that they should not have, or failed to take into accounts matters that they should have then the decision may be ultra vires. Further where you have decisions that impact upon liberties and freedoms the restrictions have to be proportionate. It follows that if you could prove the matters you’ve suggested then indeed that may change the legal outcome. As I said in an earlier post (https://emergencylaw.wordpress.com/2020/08/22/wheres-my-comment/):
“I accept that there are such things as viruses; there is a virus called Severe acute respiratory syndrome coronavirus 2 or SARS-CoV-2; this virus causes a disease called COVID-19 and that COVID-19 is more than the ‘flu. I accept that the governments are acting on informed health advice and the Prime Minister, Premiers and Chief Health Officers believe in the need for the various control measures that are being imposed. If those assumptions are wrong, then of course the legal consequences will be different …”
Thank you. That confirms my common sense presumption, which as said your post did imply in the last paragraph. Do you happen to know about the class action I mentioned?
I’m aware that AdvocateME say they are planning a class action but so far I can’t see that they have actually commenced any proceedings. My understanding is that they think all the state actions are inconsistent with the Commonwealth’s Biosecurity Act. I don’t think that’s correct but if they put it before a judge, well all find out.
I apologise for the short story that ended up being and also for the typos above. I am in a battle with my keyboard after spilling coffee on it last night.