Constitutional Law: Powers and Safeguards During a Pandemic (COVID-19)

This essay delves into the Australian Constitutional Law and its application during the COVID-19 pandemic. It examines the roles and powers of the federal Parliament, state, and territory governments in managing public health emergencies, including the use of quarantine powers and border management. The paper focuses on the Biosecurity Act 2015 (Cth) and its role in addressing the coronavirus outbreak, analyzing the government's health response, and the measures taken to minimize the spread of the virus. It also explores the constitutional safeguards in place to prevent lengthy detention of individuals at risk of spreading the disease, emphasizing the balance between public health and individual liberties. The essay highlights the collaborative mechanisms between different levels of government, the role of the judiciary, and the powers granted to the government to direct individual actions, such as movement restrictions, decontamination, and medical treatments, to control the pandemic and protect public health.

Running head: CONSTITUTIONAL LAW
CONSTITUTIONAL LAW
Name of the Student
Name of the University
Author Note

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Introduction
The Constitution is considered to be a significant document which would help in shaping
the Australian society. It provides with several roles and powers of the federal Parliament and in
addition to such sets out the power to make certain laws and regulations. Under the federal
system of the nation the states as well as the territories are considered to have certain
responsibilities which are principle in securing the lives of the citizens. These matters are
considered to be in relation to health care and along with such the emergency management. The
federal government is also considered to provide certain funding which would help in the policy
leadership and along with such the coordination and support which would be in connection to the
national responses related to public health emergencies. The federal system also has the
quarantine powers and along with such the powers to the border management which can be
considered to be utilized if there is any kind of threat due to an epidemic. The statutory
provisions containing such powers would establish various structures and along with such the
processes in order to prevent as well as respond to various national health emergencies1.
This paper discusses the powers of the Constitution in light of the global pandemic due to
the recent corona virus outbreak and consider certain constitutional safeguards which would
prevent the Commonwealth executive from trying to impose any kind of lengthy detention on
any individual who would be at risk of spreading the disease and such would be discussed in
accordance with the Biosecurity Act 2015 (Cth)2. In conclusion, it would summarize the points
that have been dealt with in the paper.
1 Fox, Frank. "General Biosecurity Obligation." Australian Canegrower 05 Jun 2017 (2017): 18.
2 Biosecurity Act 2015 (Cth).

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Discussion
The government of Australia in compliance with the state and territorial governments are
considered to take various actions as the response of any kind of disease. They had done such in
response to the Ebola virus epidemic that happened in the year 2014. This was considered to
include several enhanced screening of the passengers at the airports in order to stop the
processing of their visa applications from the several citizens that have come from the affected
countries. They were considered to issue national guidance for the public health units and for
several laboratories and the progress relating to the detailed state and territory plans for response
or retaliation. The Australian government in order to handle the issue had placed the individuals
on home quarantine who had arrived in Australia from the countries which were considered to be
affected due to the virus3.
Australia as a country is considered to consist of a federal system with the powers
divided under the Constitution and along with such the government of Commonwealth. The
matters on which the government of Commonwealth is considered to have legislative powers are
considered to be listed under sections 51 and 52 of the Constitution. Most of these powers are
considered to be concurrent as they are shared with both the state as well as the territory
parliaments. In addition to such the states as well as the territories which are considered to be
having a certain kind of residual legislative powers would be in relation to the health care and the
management of such through emergency and such would not matter in the general sense as the
federal government would be considered to be giving directions to the various states as well as
the authorities under the Constitution and thus, the cooperative as well as the collaborative
3 Lewis, Alicia, et al. "Australian legislation concerning matters of international law 2015." The Australian Year
Book of International Law Online 34.1 (2017): 273-295.

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mechanisms need to be strategic coordination which would provide with responses to the
national emergencies and would also be inclusive of the public health crises4.
The Biosecurity Act 20155 is considered to supersede the Quarantine Act 19086 which
were considered to manage the biosecurity risks that were prevailing in Australia. This particular
Act of the Parliament was considered to be particularly tested during the coronavirus pandemic
that is taking place in Australia. This particular Act is considered to be about the management of
the diseases and the pests that are considered to cause injury or harm to the human life or any
other animal, or planet health or harm caused to the environment of Australia. It describes the
risks to human health and along with such the human diseases which are considered to be listed
in the legislative instrument as such is considered to be the primary focus. This would also
require the people or the individuals leaving or entering the territory of Australia and the rules
and regulations regarding the management of the deceased individuals. It is also applicable on
the goods that have been brought into the territory of Australia from the outside and it provides a
certain kind of prohibition to the conditions which would be in relation to those goods for being
brought or for being imported into the territory of Australia. Furthermore, it is also considered to
include vessels which are considered to be entering the Australian territory and from that of the
outside of such territory which would also be inclusive of controlling the landing and the
mooring of the places along with their movement while they are a part of the Australian territory.
It would also include the implementation or execution of the Ballast Water Convention which is
considered to regulate the ballast water and along with such the sediment of certain vessels
which would be in compliance with the United Nations Convention on the Law of the Sea. In
4 Lee, Hoong P., et al. Emergency Powers in Australia. Cambridge University Press, 2018.
5 Biosecurity Act 2015 (Cth).
6 Quarantine Act 1908.

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addition to such, there would be other biosecurity risks that might be posed by the pests and the
diseases in or on the various goods or the premises that were a part of the Australian territory7.
It can be understood that due to such virus outbreak the government had come up with
various initiatives which would help them to handle or tackle such issue in order to not let it
spread further as such would affect millions of lives of the people or the individuals who are
considered to be residing in the country. The government of Australia’s health response in order
to reduce the outbreak COVID-19 is considered to be aimed at minimizing the numeral figure of
individuals from becoming affected or infected from such. It also aims at minimizing how sick,
individuals become, and along with such their mortality rate. They are also considered to manage
the demand regarding the health systems and assist the individuals to manage their own risk
which would help them to be less at risk with their own family or community. The response of
the government is considered to be based on the modelling of the impact regarding the COVID-
19 and these would be beneficial if the health system is considered to have effective social
distancing policies and it would help in increasing the capacity of the health system and along
with such isolate the people or the individuals who are associated with the virus form their close
contacts. The governments of the state as well as the territories are considered to be responsible
for the matters as they work together with the Australian Government and along with such share
the information which would help them in getting the best possible care and such would also
ensure or safeguard the response which would be consistent and along with such integrated
across the countries8. These decisions are considered to be coordinated with the Australian
Health Protection Principal Committee which comprises of the Chief Health Officers available
7 Carter, David J. "The Use of Coercive Public Health And Human Biosecurity Law In Australia: An Empirical
Analysis." University Of New South Wales Law Journal 43.1 (2020).
8 Novossiolova, Tatyana, Lela Bakanidze, and Dana Perkins. "Effective and Comprehensive Governance of
Biological Risks: A Network of Networks Approach for Sustainable Capacity Building." Synthetic Biology 2020:
Frontiers in Risk Analysis and Governance. Springer, Cham, 2020. 313-349.

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from each state as well as the territory. They also comprise of the Chief Medical Officer and
along with such the representatives from the various key departments. This particular plan of
eradicating the virus outbreak is dependent on the government activities. However, several
government as well as private agencies are considered to be working together in order to support
the response of the Australian government.
Due to this all of the states are considered to have signed up for the enactments which are
considered to develop multi-level capacities regarding the health sector in order to effectively
manage the public health threats that would be used to develop or progress in order to strengthen
as well as maintain the capacity to identify or detect, report or respond to the events which are in
connection to the public health. The Australian government has the authority or the power to
direct an individual to do certain things as per the Biosecurity Act 20159 and the individuals can
be directed to restrict their movement by being in a place of residence for a specific or particular
time period. The individuals could also be directed to undergo decontamination and provide
body samples for a diagnosis and undertake any kind of treatment or receive a certain kind of
vaccination and along with such an individual can also be directed to be isolated at a medical
facility. These are considered to be the authorities’ preference in order to give the individuals a
consent to control the order which would help the individuals from not being able to spread the
disease. If any of the individuals who are considered to be directed to be detained or quarantined
in order to prevent them from spreading the disease refuses to comply with the requirement then
the police authorities have the power to detain them as such would be intended to be the last
resort10.
9 Biosecurity Act 2015 (Cth).
10 Durant, Sam, and Thomas Alured Faunce. "Analysis of Australia's New Biosecurity Legislation." Durant S and
Faunce TA Analysis of Australia’s New Biosecurity Legislation (2018) 25.3 (2018): 647-654.

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Furthermore, in addition to such, it can also be understood that the powers to control the
individuals would be considered to be a power that had been set due to the human health
response zones which would be applicable in providing with entry as well as exit requirements to
every individuals in a specific or particular area. Due to these controlled orders there have been
several powers for the health minister which have been enlivened by the emergencies which are
considered to be inclusive of threats or any kind of harm to the human health and on a nationally
significant scale these are considered to be known as the biosecurity emergencies. These are the
powers that are considered to allow or permit the minister in order to determine any kind of
requirement which have been satisfied in a necessary manner in order to prevent or prohibit the
entry or the spread of such disease. These have been subjected to several safeguards that all the
requirements are likely considered to be effective and such are appropriate and therefore, can be
adapted to the purpose as these no longer pose as being restrictive or intrusive than that which is
considered to be required at certain circumstances. Therefore, it can be comprehended that
offences that are failing to comply with these requirements are considered to be punishable for
five years in prison or on the other hand it can be punishable through the penalty of 300 units or
about 63,000 that has been indexed to inflation and along with such similar penalties are
applicable if there has been a failure to comply with any of the control order11.
It can be understood that there are three separate organs of the government which is
considered to be the legislative, executive and judiciary. The judiciary is considered to be a
traditional guardian which would help in protecting the individual liberty as it would have
various countermajoritarian institution for the constitutional democracies. Therefore, it can be
understood that the careful quarantine relating to the judicial power would be from the political
11 Campbell, Jodie, et al. "Biosecurity, Investor-State Dispute Settlement and Corporatogenic Climate Change: A
Challenge for Australian Public Health Regulation and Human Rights." (2019).

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branches which would act as prophylactic device in order to protect the liberty of the individuals.
The High Court is not considered to authorize or permit any laws or regulations relating to
executive detention. However, it is considered to be understood that the detention would be due
to public health concerns which would be in order to manage the risks associated with the
COVID-19 outbreak. In general the role of the federal government along with the states and the
territories are considered to provide policy leadership and implement the measures within the
constitutional powers. Under the Biosecurity Act12 it can be understood that the emergency
measures are considered to prevent and control the disease from spreading therefore, such power
would be in the hands of the territory and the federal government although the duration for such
would be extended by the Governor-General. Therefore, similar considerations are considered to
be applicable in order to constrain the exercise of the power of the government during such
conditions13.
Conclusion
Therefore, it can be understood that in order to deal with health emergencies the
Australian government has come up with various statutory provisions and legislations which
would assist in reducing the spread of any diseases. Due to this recent COVID-19 outbreak the
Australian government would comply with the provisions of the Biosecurity Act 2015 (Cth)14.
This particular legislation discusses the management of the risks that take place due to any
diseases or pests and in order to prevent the spread of such disease the government would have
the power to restrict an individual’s movement if the government feels such is necessary in order
to prevent the spreading of such disease and if some individual fails to comply with the
12 Biosecurity Act 2015 (Cth).
13 Price, Polly J. "Epidemics, Outsiders, and Local Protection: Federalist Theater in the Era of the Shotgun
Quarantine." U. Pa. J. Const. L. 19 (2016): 369.
14 Biosecurity Act 2015 (Cth).

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provisions as per the statutory legislation then the police authorities are considered to have the
power to detain such individual in order to prevent them from spreading the virus or the disease.
Therefore, in conclusion, due to the amendment and the enforcement of the statutory provisions
the Australian government have the opportunity of preventing the spread of any disease which
are considered to be the issue relating to health emergencies.

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Bibliography
Journal, Articles, Books
Campbell, Jodie, et al. "Biosecurity, Investor-State Dispute Settlement and Corporatogenic
Climate Change: A Challenge for Australian Public Health Regulation and Human Rights."
(2019).
Carter, David J. "The Use of Coercive Public Health And Human Biosecurity Law In Australia:
An Empirical Analysis." University Of New South Wales Law Journal 43.1 (2020).
Durant, Sam, and Thomas Alured Faunce. "Analysis of Australia's New Biosecurity
Legislation." Durant S and Faunce TA Analysis of Australia’s New Biosecurity Legislation
(2018) 25.3 (2018): 647-654.
Fox, Frank. "General Biosecurity Obligation." Australian Canegrower 05 Jun 2017 (2017): 18.
Lee, Hoong P., et al. Emergency Powers in Australia. Cambridge University Press, 2018.
Lewis, Alicia, et al. "Australian legislation concerning matters of international law 2015." The
Australian Year Book of International Law Online 34.1 (2017): 273-295.
Novossiolova, Tatyana, Lela Bakanidze, and Dana Perkins. "Effective and Comprehensive
Governance of Biological Risks: A Network of Networks Approach for Sustainable Capacity
Building." Synthetic Biology 2020: Frontiers in Risk Analysis and Governance. Springer, Cham,
2020. 313-349.
Price, Polly J. "Epidemics, Outsiders, and Local Protection: Federalist Theater in the Era of the
Shotgun Quarantine." U. Pa. J. Const. L. 19 (2016): 369.

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Legislation
Biosecurity Act 2015 (Cth).
Quarantine Act 1908.