In my sixth and final year of law school, my ‘Statutory Interpretation’ lecturer, a prominent barrister, slammed a thick textbook on the table and turned to face the class.
“Look, I know this subject sounds dry”, she said, “but in my four decades of practising law, the skills I will teach you in this class have been, hands down,
[she paused here, for effect]
…in allowing me to effect justice”.
She was right, of course. It was dry.
But she was also right that it was important.
What I didn’t know then was that it was those lessons that would lead me here. To my view that, on a proper and comprehensive statutory interpretation of health legislation in Australia, the Minister for Health (who himself has a Masters in law) is misinterpreting, or perhaps misusing, the Public Health Act 2010 NSW (the PHA) to make ‘Public Health Orders’ which have no force at law, because they are inconsistent with the Biosecurity Act 2015 Cth (the BSA). So, blanket ‘Public Health Orders’ mandating vaccination, testing, or even mask wearing are, I believe, invalid.
This article explains my reasoning.
This article will be broken into four parts:
- The Biosecurity Act overrides the Public Health Act (the inconsistency argument);
- Other arguments for the Public Health Orders’ invalidity (and problems with their enforcement);
- Why challenges in Court have failed so far (the constitutional argument); and, lastly;
- In Closing.
1. The Biosecurity Act 2015 (Cth) overrides the Public Health Act 2010 (NSW)
The issuing of PHOs in NSW
Helpfully, the NSW Government has a page where you can easily view the ‘Public Health Orders’ (PHOs) currently active.
These PHOs are the directives which purport to stipulate and enforce the matrix of rules that we are currently living under. Recently, on 23 August, the ‘Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021‘ came into effect. I won’t bore you by telling you what’s inside – I’m sure you already know. For our purposes, it’s most important to simply view the first page. A quote:
“I, Brad Hazzard, the Minister for Health and Medical Research, make the following Order under the Public Health Act 2010, section 7”.
So, Mr Hazzard makes clear that the PHO is made under section 7 of the PHA. Here are the relevant parts of that section:
7 Power to deal with public health risks generally (cf 1991 Act, s 5)
(1) This section applies if the Minister considers on reasonable groundsthat 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.
On its face, this is an extraordinarily broad power, which seems to grant the Minister discretion to do whatever he personally “considers reasonable” to deal with risks to public health. This is certainly how Mr Hazzard is using it.
So how does the Biosecurity Act fit in?
“When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”.
So, to the extent of any inconsistency, the BSA trumps the PHA.
Importantly, the BSA itself also asserts its authority over the PHA. Section 8 of the BSA deals with “concurrent operation of State and Territory laws”. It says:
(1) 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 (except as referred to in subsection (2)).
(2) Subsection (1) is subject to the following provisions:
(a) section 172 (prohibited goods);
(b) section 265 (ballast water);
(c) subsections 445(4), 446(4), 477(5) and 478(4) (biosecurity emergencies and human biosecurity emergencies).
So, there are two things to note off the bat.
First, if the (state) PHA is incapable of operating concurrently with the (federal) BSA, then the (federal) BSA excludes or limits the operation of the (state) PHA.
Second, even if the PHA is capable of operating concurrently with the BSA, Subsection 2(c) notes that, in the case of ‘human biosecurity emergencies’, the BSA limits the operation of the PHA anyway.
The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020, made under s475 of the BSA, and currently in force (until September 17 2021), confirms that the Covid-19 pandemic has been declared a ‘Human Biosecurity Emergency”.
So, whether or not s7 of the PHA (the one that seems to give the NSW Minister sweeping powers) is capable of operating concurrently with the BSA, which I’ll discuss below, s7 of the PHA is limited by the BSA: it only allows the Minister to make such directions which are capable of operating concurrently with the BSA.
What does “operating concurrently” mean? Well, the term is not defined in the BSA, and as my old statutory interpretation lecturer would tell you, in that case, you go to the ordinary dictionary definition:
“to occur at the same time”.
So, are they capable of doing so?
The conflicting provisions
First, it is important to note the intention of the BSA, which comes clearly from Section 4, the “Objects” of the Act. That intention is “to provide for managing…biosecurity risks…the risk of contagion of a listed human disease or any other infectious human disease and human biosecurity emergencies”.
Second, lets look at how the BSA aims for such a situation to be managed.
Part 3 of the BSA deals with “managing risks to human health” through the mechanism of a “human biosecurity control order” (Control Order). This section is complex, as it must be, and very detailed. Critically, there are several checks and balances in place to mitigate the significant controls it potentiates for an individual. These checks and balances are a far cry from the sweeping, broad power the NSW Government is purporting to execute under s7 of the PHA.
Checks and Balances
Only three people can issue a Control Order under the BSA (Section 60):
- a chief human biosecurity officer;
- a human biosecurity officer; or
- a biosecurity officer.
Lets call them, “the Authorised Issuers“.
Note that this list doesn’t include police officers, nor, obviously, the NSW Minister for Health.
Next, the Control Order must be in writing (Section 62).
It’s also important to note that “a human biosecurity control order may be imposed on an individual only if the officer is satisfied that the individual has been exposed to a listed human disease, another individual who has one or more signs or symptoms of a listed human disease, or the individual has failed to comply with an entry requirement…in relation to a listed human disease” (Section 60(2)).
Section 61 also stipulates that a Control Order that is in force in relation to an individual must state the ground on which it is placed on that individual as well as what signs and symptoms of the illness that person is showing.
This is an important difference between Control Orders and the current Public Health Orders. Control Orders can only be placed on individuals who are either sick, or likely to be sick. So, under the BSA, individuals are healthy until proven sick, you could say. This is a very different approach to assuming that the entire population of a state is sick, and issuing blanket rules and restrictions as a result.
So, what can a Control Order actually do?
Under a Control Order, an individual may be required to:
- provide to a specified biosecurity officer or chief human biosecurity officer the prescribed contact information of an individual who they’ve been in close proximity to (Section 85);
- contact an Authorised Issuer during a specified period to advise them of their health (Section 86);
- go to, and remain at, their intended place of residence for a specified period (Section 87);
- wear specified clothing and/or equipment designed to prevent a disease from emerging, establishing itself or spreading (but it must specify the circumstances in which the individual is required to wear the clothing/equipment, the period or times during which they must, and instructions for wearing it) (Section 88);
- be decontaminated (Section 89);
- undergo a medical examination at a specified medical facility (such as a test) (Section 90);
- provide, if they’ve undergone a medical examination, specified bodily samples for the purpose of testing for the disease (Section 91);
- receive a specified vaccination or form of treatment in order to manage the disease (Section 92); and
- receive specified medication in order to manage the disease (but the order must specify how much medication is taken and how long it is to be taken for) (Section 93).
I also want to draw your attention to the two sections which immediately follow the sections about what a Control Order can do.
Section 94 says that, even if a Control Order is issued in relation to Section 90 (examination), Section 91 (body samples), Section 92 (vaccination or treatment) or Section 93 (medication), that Control Order must be carried out in a manner consistent with both “appropriate medical standards” and “appropriate other relevant professional standards”. It would be fair to say, for example, that an “appropriate medical standard” is the doctrine of informed consent, so arguably, a Control Order could not be carried out on an individual who did not offer this consent.
Secondly, Section 95 says that force “must not be used against an individual to require the individual to comply” with any of the measures listed above.
So, in sum, we have a very clear description of:
- Who can issue a Control Order;
- How that Control Order is to be issued and justified;
- What that Control Order might do;
- That Control Orders are still subject to appropriate medical standards, such as informed consent, for example; and
- That force must not be used against an individual to ensure compliance with a Control Order.
What does this mean for the NSW Public Health Orders?
As far as I know, nobody in NSW has been issued with a validly issued Control Order under the BSA. But, all of us have been allegedly subject to Public Health Orders made under the guise of Section 7 of the PHA. Among other things, those Public Health Orders have sought to:
- Restrict our movement;
- Mandate testing and vaccination for certain people; and
- Require us to provide evidence to police officers of permits, testing, vaccination and our identity and address.
But, the blanket directions to do the above in NSW are not consistent with the strict requirements associated with those restrictions or mandates in the BSA. In other words, the Public Health Orders themselves (which are directives made under the guise of s7 of the PHA), and s7 of the PHA in general, is not capable of operating concurrently with Part 3 of the BSA, because they are not capable of operating at the same time.
On the most basic level, the ability for the Minister for Health in NSW to make “such directions as the Minister considers necessary to deal with [a public health] risk and its possible consequences” bypasses the various conditions and requirements the BSA imposes.
And, the proof of the inconsistency is in the pudding, so lets take an example:
On 26 August 2021, the NSW Government released the ‘Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021‘, which establishes mandatory requirements for people working in health settings to be vaccinated with a COVID-19 vaccine.
Under the BSA, the only way that a vaccine could be mandated to an individual would be if:
- an Authorised Issuer gave an individual a Control Order, in writing;
- only if that person was sick, or likely to be sick, with Covid-19;
- with the ground for the order stated on it; and
- in compliance with appropriate medical standards.
So, a blanket requirement for a group of people to be vaccinated based either on where they live or what they do for work could not operate concurrently with s92 and 94 of the BSA (which deal with vaccination), and is either invalid in and of itself, or is confirmation that s7 of the PHA has been invalidly used (stretched beyond a limitation imposed by Section 8 of the BSA) in making that Order.
Indeed, many of the requirements imposed on individuals under the Public Health Orders can not operate concurrently with the stringent requirements of Part 3 of the BSA.
The counter argument here might be that the PHA and the BSA only need to be capable of operating concurrently. So, theoretically, the Minister could issue directions under Section 7 which do not subvert or conflict with Part 3 of the BSA, and even though he hasn’t, the fact that he could means Section 8(1) of the BSA doesn’t exclude or limit the operation of Section 7 of the PHA. But, this is not a good argument for two reasons:
1 – Where there is uncertainty about the effect of a Statutory provision, such as this theoretical uncertainty around Part 8 of the BSA, the intention of the Act is paramount. The intention of the BSA is clear: “to provide for managing…biosecurity risks…the risk of contagion of a listed human disease or any other infectious human disease and human biosecurity emergencies”, and, as is clear from the provisions of the Act, to do so comprehensively and carefully. The intention is not to make allowance for or to facilitate state legislation standing in its place.
2 – The nature of the Public Health Orders themselves, the product of the Minister’s use of Section 7, are so clearly beyond the scope of the equivalent provisions in the BSA, that Public Health Orders being issued in tandem with Control Orders would seem ridiculous. In one case, entire LGAs are being told to get vaccinated if they want to work in certain jobs or move around freely, whereas in the other, an individual, who must actually be sick, must be personally written to with grounds listed for the order, and must still ultimately provide their free consent.
Finally, and most importantly, even if Section 7 of the PHA and Part 3 of the BSA arecapable of operating concurrently, Section 8, Sub-Section 2 of the BSA notes that, in the case of “Human Biosecurity Emergencies”, which the Covid-19 pandemic has officially been declared, the BSA “excludes and limits the operation” of the PHA anyway. So, any direction purported to be made under the PHA, which goes beyond the scope of the BSA, is invalid.
So, on that basis, if someone has been told they must get vaccinated, or tested, or even to wear a mask, and they haven’t received a personal biosecurity control order, which itself is compliant with the various checks and balances in the Biosecurity Act, telling them to do so, then that mandate is not valid.
What about the Constitution?
Just in case there’s any doubt, we’ll briefly look at Section 109 of the Constitution:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
What is inconsistency?
The High Court has outlined several broad approaches, or tests, to determine whether there is inconsistency. I’ll focus on two:
1. If one law confers a right which the other purports to take away, they are inconsistent.
It is more than arguable, in my view, that the BSA confers several rights on the individual, by way of the various checks and balances it applies to the imposition of Control Orders for the protection of those individuals.
But, the directions under the PHA don’t take these checks and balances into account, and therefore take the individuals’ rights away.
2. If the federal law covers the field in question, the state law is inconsistent.
The intention of the BSA is “to provide for managing…biosecurity risks…the risk of contagion of a listed human disease or any other infectious human disease and human biosecurity emergencies”. Clearly, this Act can be said to have been intended to deal with the regulations and rules which can be placed on citizens in the context of a contagious virus. The comprehensive and specific mechanisms in place with regard to testing, vaccination and mask-wearing are clearly intended to “cover the field” in terms of how individuals should be directed, or restricted, in the case of such an emergency.
The declaration of a “Human Biosecurity Emergency” is further proof of this.
So, any directions given by the NSW Minister for Health, or the Minister of any other state, which intrude on the “field” that the BSA “covers”, which includes vaccination, testing, mask wearing and directions for movement, are therefore inconsistent.
The cases which have examined this Section have made clear that, where an inconsistency exists, the State law which is inconsistent with the Federal law ceases to have operative force. So, there is a very good argument to say that s7 of the Public Health Act, and any directions made under it, which intrude on the “field” which the BSA covers, do not have operative force, and are invalid.
2. Other arguments for the public health orders’ invalidity
There are other arguments which point to the misuse of power, and the invalidity of the Public Health Orders, by our Government:
- Australian Criminal and Family Lawyers have argued that the Health Minister does not have the power to create offences, but only orders and directions. This means that many of the current police powers which the Public Health Orders attempt to implement (such as police being able to ask for evidence of vaccination, for example), as well as the ways the Public Health Orders are actually being policed, may be unlawful. This has implications for anybody who has received a fine for breaching a Public Health Order in particular. Read more here in this very detailed article: https://www.acfl.com.au/police-lockdown-powers-unlawful/.
- Advocate Me has argued that NSW hasn’t actually declared a “State of Emergency” under the State Emergency and Rescue Management Act 1989, despite repeatedly referring to the pandemic as a “state of emergency” (in press conferences, for example). This is relevant to the way the PHA operates, because if they had declared a state of emergency, other parts of the PHA would govern and restrict their powers of management (some checks and balances, not too dissimilar to the BSA, would apply). Avoiding this declaration may be a cheeky attempt to bypass these checks and balances and instead rely exclusively on the very broad s7 of the PHA. You can read more here: https://www.advocateme.com.au/nsw-false-emergency
3. Why challenges in court have failed so far
Challenges in court so far have tried to focus primarily on the implied freedom of movement under the Constitution, and why the Public Health Orders breach that implied freedom.
This is what Clive Palmer tried when arguing that he should be allowed into Western Australia despite the border closure, for example, but the High Court found that the implied freedom of movement under the Constitution is only a corollary to the implied freedom of political communication, and that this was not a sufficient grounds for overturning public health orders brought in under the context of a pandemic.
I believe, instead, the argument needs to focus on the actual legislative framework the NSW Government is subject to, and the fact that the NSW Government and other states are issuing orders that go way beyond what the overall legislative framework allows.
4. In closing
When the Public Health Act was drafted, in 2010, it was an attempt to implement public health legislation that would allow the NSW Government to deal with potential future health threats, including pandemics. But, the Biosecurity Act didn’t exist then, and the drafters of the NSW Act did not have a superior Federal Act to ensure compliance and consistency with. In addition, it’s hard to say whether the drafters of the NSW Act envisioned that a future Health Minister would try to use s7 to make so many blanket Public Health Orders, with such incredible intrusiveness, and with such complexity, as what we now have.
I would argue that, even though it is limited by the BSA, section 7 of the PHA itself should nonetheless be subject to reform. Discretionary, blanket order making is an incredible amount of power to give to one citizen in any democracy. In contrast, the checks and balances within the BSA are intentional and sensible, especially now that we’ve had a chance to take a breath and realise that Covid-19 is not the killer of millions that we were originally told it would be.
It must also be asked, if I’m not wrong about all of this, has Mr Hazzard received this advice from somebody, at some point? Does he realise he is acting outside of his power, being himself trained in law? Does he realise the ‘orders’ he is subjecting an entire state of citizens to are unlawful? Will he take responsibility for their incredible, intergenerational impact these orders are having? Will he be forced to, in time?
And what about the citizens of NSW? Are they complying with these ‘Public Health Orders’ due to the illusion of legality, rather than legality itself? Can fines actually stand when there is no proper legislative basis for them? I don’t know one person who doesn’t feel that at least some of these rules, to at least some extent, are arbitrary and nonsensical, and that they are becoming increasingly so. What are the implications if they are also unlawful?
When the dust settles on all of this, maybe one of the lessons should be that there’s a reason why laws are made by parliament, and not by politicians. No one man should have all that power.
Peter Fam is a human rights lawyer in NSW.
(PS – as a final, tangential, but potentially important point, why hasn’t Mr Hazzard actually signed any of the Public Health Orders? The Public Health Orders are supposed to come into effect upon being signed, but not one of them has yet had the pleasure of Mr Hazzard’s signature. I find that odd, to say the least).