Analysis: Biosecurity Act 2015 & Constitutionalism in Australia

This essay provides a detailed analysis of Section 477 of the Biosecurity Act 2015 (Cth) and the Human Biosecurity (Stay at Home) Order 2020 (Cth) as reflections of constitutionalism in Australia. It discusses the foundational constitutional principles engaged by the allocation of power during a public health emergency, the role of the Parliamentary Joint Committee for Human Rights, and the challenges faced in effectively performing its role. The essay further explores the exercise of executive powers and its oversight, including constitutionalism and the rule of law, referencing TRS Allan's definition. It examines whether the Ombudsman can directly review the Minister's decision and whether the Ombudsman's limited power reflects political constitutionalism. The essay concludes by arguing that the Biosecurity Act and Stay at Home Order are supported by the Australian constitution, particularly in protecting citizens from diseases like COVID-19, while also addressing provisions for reasonable grounds for individuals to leave their place of residence, connecting them to fundamental rights such as the right to education and health.

Government and
Public Law

Table of Contents
Part A...............................................................................................................................................1
1.
Law making and foundational concepts.........................................................................................1
2. The exercise of executive powers and its oversight ....................................................................1
a. (I) constitutionalism................................................................................................................1
(ii) TRS Allan’s definition of the rule of law.
.....................................................................................................................................................2
b. i. Can the Ombudsman directly review the Minister’s decision? Why or why
not? ............................................................................................................................................2
ii. The Ombudsman is limited to making non-binding recommendations for the
government to consider. Is this a reflection of political constitutionalism?
Why or why not? .......................................................................................................................2
Part B...............................................................................................................................................2
Essay Question-...........................................................................................................................2
Section 477 of the Biosecurity Act 2015 (Cth) and the Human Biosecurity (Stay at Home)
Order 2020
(Cth) are a reflection of the nature of constitutionalism in Australia. Discuss.
.....................................................................................................................................................2
References:.......................................................................................................................................6

Part A
Short answer questions-
1.
Law making and foundational concepts.
a. Who is given the power to make rules about how to respond to a public health
emergency under the Human Biosecurity (Stay at Home Requirements) Order 2020
(Cth)?
Answer- Board of members of public health
.
b. What arm of government do they sit in?
Answer. Executive.
c. Identify the foundational constitutional principle considered in Module 1 that is
engaged by this allocation of power and explain how it is engaged.
Answer. The main principle used in the allocation of power is to protect the citizens from any
spread of disease. Here, in this case the emergency can be declared by the health minister in case
of Covid 19. Hence, by this act the power is allocated to the health minister of the country.
d. Explain what role the Parliamentary Joint Committee for Human Rights plays in
assisting Parliament with its work in reviewing the Human Biosecurity (Stay at Home
Requirements) Order 2020 (Cth).
Answer. The main role is to see that whether all the human rights provisions of the act is
executed properly or not. If all the human rights are not applied to the individuals, then the
necessary actions is to be taken up by the respective authority.
e. What are the key challenges the Committee faces in effectively performing this role?
1

Answer. The challenges includes that the measures to increase the implementation of these
provisions in the society is comparatively low as compare to others. The challenges are also
related to collect the adequate resources in order to maintain the health and safety of the citizens
of the country.
2. The exercise of executive powers and its oversight
a. (I) constitutionalism.
Answer. This is against the constitution of Australia because there are provisions with relate to
equality in the Australian constitution. So, there is a clear discrimination in this case between the
essential workers and non essential workers. So, this is inadequate as per the constitutionalism.
(ii) TRS Allan’s definition of the rule of law.
Answer. As per the view point of TRS Allan’s, the rule of law is the constitutional principle of
which is based upon the practice of liberal democracies around the Western world. Moreover,
this is the simplest form. This means that what is done officially must be done in accord with
law. So, the rule of law is equal and same for all irrespective of their religion, gender, caste, etc.
These is to be followed by all the citizens of the country1.
b. i. Can the Ombudsman directly review the Minister’s decision? Why or why
not?
Answer. No, the Ombudsman can directly review the Minister’s decision. This is because it is
against the provision of basic human right of the citizens of the country. Moreover, the
Ombudsman has less power to review the Ministers decision as per the constitution of Australia.
ii. The Ombudsman is limited to making non-binding recommendations for the
government to consider. Is this a reflection of political constitutionalism?
Why or why not?
Answer. Yes, this is totally the presentation of political constitutionalism in the country. This is
so because the supreme power is given in the hands of the governmental authorities and no other
can change such policies and decisions that are being taken by the government officials of the
1 "Children Australia" (2021) 27(3)
2

country. So, there must be a amendment done by the legislative assembly with this respect in
order to bring more transparency in the legal system of Australia2.
Part B
Essay Question-
Section 477 of the Biosecurity Act 2015 (Cth) and the Human Biosecurity (Stay at Home) Order
2020
(Cth) are a reflection of the nature of constitutionalism in Australia. Discuss.
The Australian constitution is a very wide concept. The country Australia is basically
divided into three divisions. All these three divisions has its own laws and regulations. Along
with this, the government of all these departments are also different. The constitution of
Australia has 8 chapters and 128 sections. These contains about the provisions regarding the
work of the government and the organisations. All the citizens of Australia has to abide these
provisions of the constitution of Australia. Moreover, the Australis is a combination of states
which has its own constitution. The constitution of Australia is in written form. All the states of
the Australia has come together for the federation. The scope of the Australian constitution is
very wide. The creation of the constitution of Australia is done by keeping the needs of the
citizens of Australia in mind3. The term constitution and constitutionalism is quite similar to each
other. This is because the constitutionalism discusses about the concept of constitution. The
constitution of Australia is bicameral. This is because the parliamentary democracy of Australia
is bicameral. This means that there is separation of powers between the states in Australia. This
is also a example of federal state. So, the constitution of the Austria is very similar to the
constitution of USA and Germany. These provides for various sections related to this to all the
people of the country.. the constitution of Australia ensures about the basic fundamental rights of
the citizens which includes the right to life, property, religion, freedom and education. It also
2 "Constitutional Law: Constitutional And Charter Provisions: Right Of Women To Vote"
(2020) 16(2)
3 Binzer, Peggy, "The PREP Act: Liability Protection For Medical Countermeasure
Development, Distribution, And Administration" (2020) 6(4) Biosecurity and
Bioterrorism: Biodefense Strategy, Practice, and Science
3

includes the right to privacy which is to be given to all the citizens of Australia. The constitution
of Australia too provides for the judicial review. The judiciary of Australia is always liable for
doing the judicial review in all the decided judgements and laws which is being framed by the
legislative assembly of the country. This provides for various other provisions related to the
government of the country. All the laws of the country are generally framed with respect to the
provisions of the constitution. So, the constitution plays a very important role in bringing up the
economy and social status of the citizens of the country.
The Biosecurity Act 2015 was framed to protect the citizens of Australia from the pests
and diseases. This act lauds the provisions to reduce the spread of the disease in the country.
This would ultimately lead to the provisions to protect the citizens from the dangerous and life
taking disease which is spread in the country. One such step is taken under this act during the
time of spread of Covid 19 all over the world. An adequate step was taken in order to reduce the
spread of Covid 19 in the people of Australia. For this, there was ban on the unnecessary
movement of people from there house. This has also resulted into the closure of all the
companies and institution in the country in order to reduce such disease in the individuals of the
nation. These steps were taken as per the rules under the constitution of Australia4. The
constitution of Australia has supported this act while reducing the spread of the disease in the
country. The section 477 of the Biosecurity Act 2015 provides the provisions for this in the
country. According to section 477, the Health Minister can declare emergency during any human
biosecurity time period in the country. This emergency can be created to reduce the impact of the
Covid in the society. The people were not allowed to go out from their houses during the lock-
down period. Moreover, the emergency so declared helped the government in controlling the
disease in the country. This section is governed by the basic feature of the constitution of
Australia. This provides the health minister with the power to establish the emergency in order to
control and prevent the disease to be spread in the country. This would also help in the reduction
of the listed diseases in humans in the territory of Australia. This is similar to the article of the
constitution of Australia which states that the emergency can be declare in case of seriousness of
any type of disease in order to decrease the spread of diseases in the country. In addition to this,
it also discusses about the spread of disease in the other countries as well. So, the adequate steps
4 Fox, Jeffrey L, "US Biosecurity Advisory Board Faces Delicate Balancing Act" (2020)
23(8) Nature Biotechnology
4

is to be taken by the government in order to decrease its spread in the other country of the world
also.
The Part 3 of the
Biosecurity Act 2015 provides for various provisions for the reasonable grounds on which the
employee can leave its place of residence in the country. These adequate grounds includes for
visiting to hospitals, childcare, pick or drop the child for the child care, parental care, emergency
conditions, schools and universities. It also includes the visit to the university for some
educational purpose. Moreover, the individual can only go to the university if he has no
resources to continue his education at the home. So, if there are reasonable grounds regarding
such an issue, then the student can go to the educational institutions in order to continue his
studies. Moreover, all the steps are to be taken to have the adequate chances to continue the
education of an individual. So, this is also connected to the right to education which is a
fundamental right of every citizen as guaranteed by the Australian constitution. In addition to
this if any individual is donating his blood, then also he can go out from his place of residence as
per the provisions of the Biosecurity Act 2015. So, here also it is supporting the right to health
as specified in the constitution of Australia. So, the section 477 is directly connected to the
articles of the constitution of Australia. Further more, if an individual wants to have the medical
care, then also he can leave his place of residence according to the 477 of this act. This is also an
important article of health which is written under the constitution of Australia. It also provides
for the care to the vulnerable people of the country. The provision of the constitution also
provides for the backward people . The government provides various subsidies and facilities to
these vulnerable groups in the country. Many educational loans are given to the children of these
vulnerable groups in order to increase the literacy rate of these people in the country. Moreover,
it would also increase the standard of living of these people in the country. This would ultimately
help the country to grow and develop at the global level5.
The World Health Organization under Part III of the
International Health Regulations is also considered under this section. Moreover, the
government can also give recommendations on the same. The health and the safety of the
citizens are also given importance in the constitution of Australia. This is one of the main feature
5 Pienaar, GJ, "Constitutional Provisions Regarding Juristic Persons" (2021)
1(1) Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad
5

of Australian constitution to keep in mind about the health of the citizens of the country. In
addition to this, the precautions is also to be taken by the citizens of the country in order to
decrease the spread of the disease. The constitution also provides for other measures related to
safety of the citizens. The implementation of section 477 is in favour of providing the security to
the citizens by keeping the lock down in the state6.
6 Walpole, Samuel and William Isdale, "COVID-19, The Principle Of Legality And The
'Legislative Bulldozer' Of The Biosecurity Act 2015 (Cth)" [2021] SSRN Electronic
Journal
6

References:
Books and Journals
"Children Australia" (2021) 27(3)
"Constitutional Law: Constitutional And Charter Provisions: Right Of Women To Vote" (2020)
16(2)
Binzer, Peggy, "The PREP Act: Liability Protection For Medical Countermeasure Development,
Distribution, And Administration" (2020) 6(4) Biosecurity and Bioterrorism:
Biodefense Strategy, Practice, and Science
Fox, Jeffrey L, "US Biosecurity Advisory Board Faces Delicate Balancing Act" (2020)
23(8) Nature Biotechnology
Pienaar, GJ, "Constitutional Provisions Regarding Juristic Persons" (2021) 1(1) Potchefstroom
Electronic Law Journal/Potchefstroomse Elektroniese Regsblad
Walpole, Samuel and William Isdale, "COVID-19, The Principle Of Legality And The
'Legislative Bulldozer' Of The Biosecurity Act 2015 (Cth)" [2021] SSRN Electronic
Journal
7