Administrative Law: A Report on Biosecurity Act and Judicial Review

This report delves into the intricacies of Australian Administrative Law, particularly concerning the Biosecurity Act 2015 and its implications during the COVID-19 pandemic. It analyzes a case involving Professor Duns Scotus, who faces restrictions imposed by the government to prevent the spread of the virus. The report examines the legal framework, including the Biosecurity Act, judicial review processes, and the powers of administrative authorities. It explores the issue of entry restrictions, the declaration of Human Health Response Zones, and biosecurity orders, highlighting the Professor's challenges to these decisions. The report also covers the rules and regulations of administrative law in Australia, the role of judicial review in ensuring accountability, and the specific provisions of the Biosecurity Act related to managing biosecurity threats. It discusses civil liberty concerns arising from the implementation of the Act and the right to review decisions made under its authority. The report concludes by summarizing the case, the challenges faced by Professor Scotus, and the relevant legal principles governing the situation.

ADMINISTRATIVE LAW

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................1
REPORT..........................................................................................................................................1
Issue.............................................................................................................................................1
Rules and Regulations..................................................................................................................2
CASE...........................................................................................................................................4
CONCLUSION ...............................................................................................................................8
REFERENCES..............................................................................................................................10

INTRODUCTION
Administrate law is branch of the public law which is concerned with rules, procedures
and the regulations of number of the government agencies. The administrative law deals
specifically with the decision making capabilities of the administrative agencies as they have to
carry out the laws which are passed through federal and state legislatures. Example of the
administrative laws is regulation and the operation of Social Security Administration and
administration of the benefits to people. It is defined as body dealing with establishment, rules,
duties and the powers of the governmental administrative agencies. Access for reviewing
different government decisions is the key component to access for justice1. Th present report
discuss the case of Prof Scotus who has been facing the restriction of state and federal
government to prevent the spread of virus. Report will discuss about the laws and restrictions
imposed in the country over people for their protection. Prof Scotus wants to challenge the
decisions made by administrative authorities with the use of judicial review.
REPORT
Issue
In the wake of COVID-19 and the increasing cases Prime Minister Scott Morrison has
imposed strict restrictions in consultation with the Health Minister preventing entry and exit
from Australia for other than purposes stated by Authorities. These Restrictions were imposed
under the Biosecurity Act, 2015. The case revolves around Professor Duns Scotus who is
Australian citizen was on visit to University of York. Prof applied for return to Australia but the
application was rejected on the ground of inability to provide evidence on risk of death of any
person. As the number of cases were increasing on daily basis Health minister imposed further
restrictions for staying at home with certain exceptions. Professor took flight to Indonesia and
from there illegally visited Australia. Eventually prof was caught in Victoria and fine was
imposed of $7500 and quarantined for 21 days. After the release flight to Sydney was booked but
due to the increase in daily number of cases FHM imposed border controls in Victoria to prevent
the spread of virus to other states. Victoria was declared as Human Health Response Zone by the
and issue was made that no one could exit or enter the Victoria. It again prohibited the professor
to go home. It made Prof agitated as he was not able to go home. Due to this Prof Scotus made
1 Durant, S. and Faunce, T.A., 2018. Analysis of Australia's New Biosecurity Legislation. Durant S
and Faunce TA Analysis of Australia’s New Biosecurity Legislation (2018). 25(3). pp.647-654.
1

Facebook group with 300 protestors to show objections for the lockdown. FHM seeing it as
threat asked Biosecurity officer to issue strict orders against Prof and restricted freedom of
association and movement. Second notice was also imposed on the profe to comply with the
order. Since from August to November the Victoria is still under Human Health Response Zone.
There is also leak from federal government that modelling of determination of Human Health
Response Zone. Leak was credible and Director of Human Biosecurity admitted that leak is true
and the law has left it up to the Director whether to declare or not to declare the response zone.
Prof Scotus wants to challenge:
 Decisions of Entry restrictions to avoid fine and biosecurity order
 Declaration of Victoria as HHRZ so Prof could return home
 Biosecurity orders imposed against Prof Scotus.
Rules and Regulations
Administrative Law
In Australia it is branch of law which is nebulous as deals with agencies created for
administering large array of the governmental programs. Administrative system governs the
commissions, agencies and boards. Interaction of the public with administrative laws occurs
most often in connection with the some kind of public benefits that is terminated or denied.
Administrative law regulates the government decision-makings. It refers to accountability
mechanism which applies to the decisions of government about the individual matter, instead of
broad policy decisions2. Federal administrative system is based over structural separation
between roles of legislature, executive and judiciary in Constitution. The law ensures that
government and people are bound by the laws and underpin observance of rule of the Australian
laws. Elements of administrative law system consists of primary decisions making, merit review
of the primary decisions, judicial review, commonwealth Ombudsman and office of Australian
Information Commissioner, administrative reviews council, merit protections commissioner and
the parliamentary committees.
Administrative cases of law are tried in the administrative court, where individual appear
before the administrative law judges, council or tribunal of the people with the expertise in field3.
2 Dominiak, B.C. and Mapson, R., 2017. Revised distribution of Bactrocera tryoni in eastern
Australia and effect on possible incursions of Mediterranean fruit fly: development of Australia’s
eastern trading block. Journal of Economic Entomology. 110(6). pp.2459-2465.
3 BIOSECURITY LAW IN AUSTRALIA. 2020. [Online] Available through:
<http://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2020/03/04-Carter.pdf>
2

Rules and the regulations of the administrative courts are different from regular criminal and
civil courts and authority is also limited over making of administrative decisions like whether to
deny or approve the benefits or to overturn or confirm the penalty.
Judicial Review
Judicial review have an important role to play in the Australian system of the government
as means to ensure accountability of the public officials for legality of the actions taken by them.
Judicial review at the federal level are available under constitution since inception of
Commonwealth. Increase in the judicial review litigations during period has led to the major
development in legal principles that are associated with the judicial review. It is available in the
relation to the administrative decisions that are generally under Administrative Decisions Act
1977 or s 39B of Judiciary Act 1903. The judicial review is there in High Court in s 75 of
Constitution. Many statutes provide for the review of questions of the law by courts. Example
AAT decision could be reviewed under sec 44 of Administrative Appeals Tribunal Act 1975 on
the 'question of law'4. There are 2 essential principles for the judicial review. First is issue of the
prerogative writ is never given as right rather applicant has to demonstrate why writ needs to be
granted. Second that remedies under the review are often discretionary means that remedy would
not be granted if for instance delay is on part of applicant or applicant is also guilty of the
misconduct for any act. Role of courts in the judicial review as in case of Minister for Civil
Service vs Council for the Civil service union is to:
 Oversee application of law ensuring that only the relevant matters are accounted for
making decisions.
 Ensure that the fair procedures have been followed
 Ensure that decisions made are reasonable and rational in all circumstances.
Biosecurity Act 2015
The act explains how to manage the biosecurity threats to the animal plants and human
health in the Australia and external territories. Biosecurity is managed for ensuring very lower
level of risks. It draws balance between the protection of Australia from the diseases and pests
and to maintain the trade internationally5. The Act is designed for responsive and flexible
4 Durant, S. and Faunce, T., 2018. Medical Law Reporter: Analysis of Australia's New Biosecurity
Legislation.
5 Campbell, J., and et.al., 2019. Biosecurity, Investor-State Dispute Settlement and Corporatogenic
Climate Change: A Challenge for Australian Public Health Regulation and Human Rights.
3

changes in the technology and also the biosecurity challenges. It emphasises over adapting
quickly is very essential as the international passengers trade and travel are evolving and
growing every year. It has shared responsibility as biosecurity management function are also
administered by Australian Government, and State & Territory government, community and
industries also have to play their role. It aims at working together to ensure Australia has
sustainable and efficient biosecurity system into future.
The act specifically provides flexible legislative frameworks to minimise risks of
emergence, entry, spread or establishment of the exotic disease or pests which have potential of
causing significant harm to the animals, people, plants and environment. Act provides range of
different powers for protection of the human health, which includes exit and entry screening,
management of the ill travellers, monitoring and controlling vector and preventative powers and
flexible emergency6. Act implements obligations under International Health Regulations relating
to entry points, ship sanitation, public health emergency of the international concern and the
vaccination for yellow fever.
CASE
As per the changes which are made in the Biosecurity Act 2015, government authorities
who are designated by chief medical officer has the power of making 'human biosecurity control
orders that requires individuals either to do or do not for certain things. It includes providing
contact details, regularly updating the officers about the health status, restriction of movement of
people from one place to other for period as may be specified, to undergo decontamination,
providing body samples to diagnose, undertaking treatment or vaccination and such other actions
as it may deem fit for the social security.
Biosecurity Emergency
In addition with control orders, Health minister has power enlivened by the emergencies
that involve harm or threat to the human health on significant scale nationally known as
biosecurity emergencies. Powers allow ministers to frame such requirements and directions as
considered necessary for preventing spread or entry of the disease7. These are subject to the
safeguards that requirements must be effective and also appropriate as well as adapted for the
6 Champion, P.D., 2018. Knowledge to action on aquatic invasive species: Island biosecurity–the
New Zealand and South Pacific story. Management of Biological Invasions. 9(4). p.383.
7 Protecting Australia's Health. 2020. [Online] Available through:
<https://www1.health.gov.au/internet/main/publishing.nsf/Content/ohp-biosec-protect-
aus-health.htm>
4

purpose and are no more intrusive and restrictive than required in circumstances. The acts
violating the directions and requirements are punishable with 300 penalty units or imprisonment
for 5 years and same are applicable to failure for compliance with control orders.
Civil liberty concerns
The measures by the health minister are taken for keeping Australians safe and secure
and powers under Act have to be used only as last resort and with utmost caution. Exceptional
powers do not have the safeguards or independent oversight for the protection for the
enforcement of law and the security agencies for the exercise of different coercive powers.
Control orders in the case of a infectious disease could be justified and there are no requirements
for person to be actually infected or the officers to reasonably believe or even suspect that person
may be or is infected with disease before the control order has been made. The orders could
impact the liberty of person like restriction of movement. Use of the powers necessary for
limiting spread of the potentially infectious dangerous disease, threshold to determine and then to
impose control orders have to be considered carefully ensuring that it achieves purpose based
over reasonable grounds.
Right of the Review
Person directed under the para 72(5) of Biosecurity Act complies with isolation measures
or traveller movement measures under control orders have right to apply to Administrative
Appeal Tribunal for the merits review of decisions. Direction is reviewed under Administrative
Decisions ( Judicial Review ) provided application is made in 7 days from day decision has been
made. Some provisions of AAT are modified by operation of Biosecurity Act. In section 28 and
sub section 37 of AAT act are not applicable8. Director of the Human Biosecurity has to lodge
relevant documents with AAT and person in 2 days. It ensures that person not consenting with
biosecurity measures is provided speedy access to the review.
Decision to set out requirements of Entry restrictions to avoid fine and biosecurity control
orders.
The Biosecurity acts provides that authorities can pass orders and requires people to
follow control order as has been specified and complying with the requirements. Health minister
and chief medical officer has the power to impose such restrictions as they may deem fit. The
government imposed the entry restriction to Australia for preventing the spread of virus. They
8 Carnegie, A.J. and Nahrung, H.F., 2019. Post-border forest biosecurity in Australia: Response to
recent exotic detections, current surveillance and ongoing needs. Forests. 10(4). p.336.
5

also mentioned the exceptional conditions for the entry. The order passed by the government has
to be followed by every individual that is coming or going out. It has complete powers to restrict
the entry of people even they are residents of Australia to enter country for social security
reasons. Prof has not complied with the order and entered Australia illegally through sea routes.
This is considered as contravention of the Biosecurity orders imposed by the government and
health minister.
The act provide the power to authorities like director of the human biosecurity to make
people compel to follow such orders. Prof entered illegally and there may be threat of having the
virus spread from other country9. Also the route of entering through illegal channels is violation
of the national security laws and non compliance with control order.
Under the Biosecurity act Governor general as per section 475 could impose emergency
declaration. They could also decide the time for which they will be valid and could also extend
the period analysing the situations. It provides broad powers to the Health minister to declare the
control measures and directions and such requirements necessary to control or prevent entry of
diseases such as Covid. Such measures could include bans over the overseas travel and
restrictions of entry into Australia of flights and ships. As per the law individual who
intentionally engage in the conduct which contravenes directions or the requirements made under
Declaration will be criminal offence and attract such penalty as may be defined by the authority.
The authority has the power to detain people who are not complying with the control orders
implemented by the government10. The police force could also be applied to prevent the
movement of people and if they refuse to comply with the requirements. These are generally
considered as last option considering the seriousness of situation. Also if the judicial review
would not provide the revoke the orders passed by the Health minister as they are laid for the
protection of all the Australians.
Therefore, as per the above provisions of Biosecurity Act the imposition of fine and
compliance with biosecurity orders could not be challenged. Prof Dons has to pay the full fine of
$6500 and also comply with the control orders.
Declaration of the Victoria as Human Health Response Zone
9 Carnegie, A.J. and Nahrung, H.F., 2019. Post-border forest biosecurity in Australia: Response to
recent exotic detections, current surveillance and ongoing needs. Forests. 10(4). p.336.
10 Judicial Review. 2017. [Online] Available through:
<http://classic.austlii.edu.au/au/journals/AIAdminLawF/2017/10.pdf>
6

Along with powers and restrictions imposed over the individuals to control them there are
also powers for Human Health Response Zone for setting exit or entry requirements for everyone
in the particular area. Such powers are implemented where there is situation like covid that
involves spread of disease to others. The actions are taken to prevent the movement of people
from such zone to other areas so that the spread could be prevented and controlled. The power of
declaring a area as HHRZ is also delegated to the Director and health minister for such period as
they may think fit. These places included fever clinics and other help services that are established
for helping people to recover from acute fever which comes with the disease11. People who are
residing, entering or leaving such zones are subject to the requirements of such conditions
compulsorily. This could be imposed over specific areas or even whole city after consultation
between Chief officer health of state and director of the biosecurity. These are imposed
mandatory over every individual in that particular zone. They could provide certain exceptions
to the restrictions imposed.
In the present case Victoria has been declared HHRZ for preventing the spread of virus to
other states. It has been provided in declaration that movement can be made only for the
emergency services and transportation of food. The restriction would apply from 9th July and this
further prevented the Prof Dons from going back to home. However as per the act such
restrictions could be imposed over the people and non compliance could attract pecuniary
penalties with fine and imprisonment. On the basis of above grounds Dons could not challenge
the declaration of Victoria as Human Health Response Zone. Also if the matter is considered
under the judicial review on the ground that declaration of Victoria as HHRZ would not be
considered as the order has been issued along with proper requirement and there are no valid
reasons with Prof that could be considered against the imposition of laws12. Perhaps the legal
unreasonableness that applies across the wide range of the statutory powers but indicators of the
legal unreasonableness should be found in the laws passed by the statutory body.
Biodiversity order against the Prof Scotus
Director of the human biosecurity in the consultation with different chief health officers
of states and the territories and could determine them as listed disease. It has been provided in
11 Carter, D.J., 2020. The use of coercive public health and human biosecurity law in Australia: An
empirical analysis. UNSWLJ. 43. p.117.
12 Fargher, B., 2019. The new Qld Biosecurity Act 2014–what have we learned? What needs to
change?.
7

the act that if people are not complying with such orders director could compel them to comply.
In required cases police may detain the person. Person that fails to abide by the obligations or
escapes from the detention can be charged with criminal offence. Such contravention could raise
the penalties and imprisonment for the 5 years. It could be further found in the law that power of
the Health minister is not limited to establishing requirements of leaving or entering the specified
areas, preventing or restricting movement of the people between the places and evaluating
places13. Civil and criminal penalties could apply over people refusing to comply with the such
requirements under the emergency powers.
In the present case Prof did not complied with the requirements imposed for Entry in
Australia causing threat to the health of other people. The officers have power to issue control
orders against the Prof to compel them to comply with such orders14. Also the police force could
be used to detain the prof under emergency orders.
In case of of Lim v Minister of Immigration, local government and the Ethnic Affairs.
Applicant in case argued that various provisions of Migration Act providing compulsory
detention of the designated powers were constitutional on many grounds, this includes orders for
the detention are inherently punitive in the nature and thus amounted to exercise of judicial
powers of commonwealth15. High court found that Sec 54 L provided that designated person can
not be released from the detention until visa is granted or is removed from the Australia and Sec
54N requires officers to detain person without warrant suspected as designated person and were
valid as powers are exercised to sec 51 of Constitution and not exercise of the judicial powers.
Such powers could be exercised by the administrative decision maker.
CONCLUSION
It could be concluded from the above analysis that the grounds of challenging the fine
imposed and control orders passed are not viable and could not be exercised under the judicial
review. Biodiversity Acts provides power under Administrative law to pass such orders and
make people to comply with them. Many people may be tolerant of the special governmental
powers when the interventions are essential for protecting health of people. On other some of the
13 Anggadi, F., and et.al., 2019. Australian Legislation concerning Matters of International Law
2017. The Australian Year Book of International Law Online. 36(1). pp.354-378.
14 Judicial Power. 2020 .[Online] Available through:
<http://press-files.anu.edu.au/downloads/press/p318861/pdf/ch05.pdf>
15 Kampmark, B., 2020. Protecting civil liberties in a time of COVID-19. Eureka Street. 30(5). p.45.
8

people could be tempted for resisting the coercive powers interfering with personal liberty.
President of Law council provides that the powers under Biodiversity Act could be exercised
against person even if officer is not confirm about the person being infected or not.
9

REFERENCES
Books and Journals
Durant, S. and Faunce, T.A., 2018. Analysis of Australia's New Biosecurity Legislation. Durant S and
Faunce TA Analysis of Australia’s New Biosecurity Legislation (2018). 25(3). pp.647-654.
Dominiak, B.C. and Mapson, R., 2017. Revised distribution of Bactrocera tryoni in eastern Australia and
effect on possible incursions of Mediterranean fruit fly: development of Australia’s eastern trading
block. Journal of Economic Entomology. 110(6). pp.2459-2465.
Durant, S. and Faunce, T., 2018. Medical Law Reporter: Analysis of Australia's New Biosecurity
Legislation.
Campbell, J., and et.al., 2019. Biosecurity, Investor-State Dispute Settlement and Corporatogenic Climate
Change: A Challenge for Australian Public Health Regulation and Human Rights.
Champion, P.D., 2018. Knowledge to action on aquatic invasive species: Island biosecurity–the New
Zealand and South Pacific story. Management of Biological Invasions. 9(4). p.383.
Carnegie, A.J. and Nahrung, H.F., 2019. Post-border forest biosecurity in Australia: Response to recent
exotic detections, current surveillance and ongoing needs. Forests. 10(4). p.336.
Carter, D.J., 2020. The use of coercive public health and human biosecurity law in Australia: An
empirical analysis. UNSWLJ. 43. p.117.
Fargher, B., 2019. The new Qld Biosecurity Act 2014–what have we learned? What needs to change?.
Anggadi, F., and et.al., 2019. Australian Legislation concerning Matters of International Law 2017. The
Australian Year Book of International Law Online. 36(1). pp.354-378.
Kampmark, B., 2020. Protecting civil liberties in a time of COVID-19. Eureka Street. 30(5). p.45.
Online
BIOSECURITY LAW IN AUSTRALIA. 2020. [Online] Available through:
<http://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2020/03/04-Carter.pdf>
Protecting Australia's Health. 2020. [Online] Available through:
<https://www1.health.gov.au/internet/main/publishing.nsf/Content/ohp-biosec-protect-
aus-health.htm>
Judicial Review. 2017. [Online] Available through:
<http://classic.austlii.edu.au/au/journals/AIAdminLawF/2017/10.pdf>
Judicial Power. 2020 .[Online] Available through:
<http://press-files.anu.edu.au/downloads/press/p318861/pdf/ch05.pdf>
10