Extraordinary times call for extraordinary powers. The federal Parliament had this in mind when it enacted the national Biosecurity Act in 2015. In a welcome act of foresight, it introduced special powers and measures should Australia experience a pandemic. The Biosecurity Act is a mammoth 700-page piece of legislation. It provides a formidable and truly remarkable set of powers for the national government to navigate this crisis. Government officials can impose a human biosecurity control order on any person displaying one or more symptoms of COVID-19 as well as any other person they have been in contact with. These orders permit the government to bypass the need for personal consent. Anyone subject to such an order can have their liberty and freedom restricted in numerous ways. A person can be forced to reveal their contacts and to remain at their residence or in isolation at a government facility. They can also be subject to medical examination and compelled to provide body samples and submit to treatment. Anyone who fails to follow such directions can be detained by the police and jailed for up to 5 years. The biosecurity powers of the federal government also extend to areas. The government can determine who comes to Australia and can establish human health response zones to restrict who enters or leaves a location within Australia. Areas with an outbreak, including towns, suburbs or streets, can be closed and made subject to quarantine. This might involve roadblocks and other means of preventing free movement. Powers like this are complemented by the capacity of the states to impose their own stringent restrictions and controls. NSW for example has used powers under its Public Health Act to ban outdoor gatherings of 500 or more people and indoor gatherings of 100 or more people. This can be applied anywhere, including beaches, parks and other places where people gather. Victoria has declared a state of emergency which activates additional powers, including to detain people or restrict their movement. Tasmania has begun a push to close state borders. It has imposed mandatory 14 days of self-isolation for everyone arriving on the island. Western Australia and South Australia have announced they will follow suit. This runs counter to the guarantee in section 92 of the Constitution that Australians are guaranteed free movement throughout the Federation. It is though subject to exception, including reasonable measures to deal with a public health emergency. Even extraordinary powers like this are only the tip of the iceberg when it comes to how our governments can restrict our liberty to keep the community safe from COVID-19. The most remarkable power lies in the federal Biosecurity Act. It permits the Governor General to declare a human biosecurity emergency to limit the spread of a disease that is posing a severe and immediate threat to human health on a national scale. Once the emergency has been declared, the federal Health Minister is vested with unfettered personal power of a kind normally only found in a dictatorship. The Minister may determine 'any requirement' and make 'any direction' needed to prevent or control the disease. These cannot be disallowed by Parliament and can override any other law. A failure to comply is liable to 5 years imprisonment. This is a 'whatever it takes' clause. It establishes the Health Minister as the most powerful figure in the nation with the discretion to do whatever he or she thinks necessary to protect the community from the spread of a disease. This authoritarian power does away with niceties such as checks and balances, and even the idea of personal liberty. It amounts to the community putting complete faith and trust in the Health Minister to use their powers wisely. It says a lot about this crisis that we have already passed this point. Last Wednesday the Governor General declared in accordance with the Biosecurity Act that 'a human biosecurity emergency exists'. This had the immediate effect of vesting federal health Minister Greg Hunt with the most significant powers that can be conferred upon an individual in Australia. These powers will last at least for the next three months. Federal and state laws grant our leaders the most coercive and intrusive powers possible to respond to the current pandemic. When the crisis began, the powers were exercised with caution and restraint. Our leaders recognised how these laws, in the words of Attorney General Christian Porter, are 'strange and foreign to many Australians'. Porter also made it clear that these powers would only be used as a 'last resort'. Events have moved so quickly, and the danger so readily apparent, that 'last resort' options now need to be deployed. It makes sense to rely upon trust and goodwill in the community to secure voluntary compliance. This though has its limits, and a more heavy-handed response has been invoked through the forced closure of beaches and borders. Much more of this is to come. Governments will use the very large sticks at their disposal to remove the last vestiges of complacency from the community and to ensure compliance with biosecurity measures in the interest of all Australians. George Williams is Dean of Law at the University of New South Wales.
This article was originally published in The Australian.