Last year I wrote to the Assistant Minister responsible to the Australian Attorney-General to complain about the totalitarian powers that are contained in the Victorian government’s new proposed Bill. The Public Health and Wellbeing (Pandemic Management) Act 2021 is now passed into law and gives the state dictator powers very similar to any total despotic dictatorship. Totally undemocratic. The state dictator can declare a pandemic at a whim (without evidence) and has powers to arrest anyone for any reason, even if he doesn’t like what they say.
Today I got an email reply to that letter.
23 February 2022
Dr John Hartnett
Dear Dr Hartnett
Thank you for your correspondence to the Assistant Minister to the Attorney-General, Senator the Hon Amanda Stoker, regarding the Victorian Public Health and Wellbeing (Pandemic Management) Bill 2021 (the Bill). The Assistant Minister has requested that the Attorney-General’s Department respond to you on her behalf.
I apologise for the delay in responding to you.
Neither the Attorney-General, nor officers of the Attorney-General’s Department, provide legal advice to members of the public. However, the following general comments may be of assistance.
The Victorian Public Health and Wellbeing (Pandemic Management) Act 2021 provides the Victorian Premier and Minister for Health with broad emergency powers to declare pandemics and make and enforce pandemic orders. The law gives the Victorian Government power to impose certain restrictions and prohibitions when a pandemic declaration is in place
(eg restrictions on movement, limits on the number of people who can gather in a place at any one time, quarantine requirements). The Act provides a regulatory framework that may be used for the ongoing management of the COVID-19 pandemic and future pandemics beyond the state of emergency which ended on 15 December 2021. The Act received royal assent on 7 December 2021.
The states and territories have taken measures under their own laws in response to the COVID-19 pandemic. Section 51(ix) of the Constitution gives the Commonwealth Parliament the power to legislate with respect to ‘quarantine’. Some measures adopted in response to the COVID-19 pandemic have been taken under the Biosecurity Act 2015, which
is relevantly administered by the Minister for Health and Aged Care and his department. An example of one such measure is the declaration of the existence of a human biosecurity emergency under section 475 and subsequent emergency requirements, such as that restricting travel out of Australia.
However, the quarantine power in section 51(ix) of the Constitution, like most Commonwealth constitutional powers, is not exclusive to the Commonwealth. The states may therefore make laws on those topics, subject to the operation of any relevant Commonwealth laws, as recently confirmed by 5 Justices of the High Court in Gerner v Victoria  HCA 48.
In many policy areas, the Australian Government works with the states and territories to achieve national standards. Increasingly, important national arrangements in Australia are supported by co-operative frameworks involving the Commonwealth and state and territory governments. Pertinent to your queries, this includes areas such as quarantine, interstate travel and vaccination.
When a state law is inconsistent with a Commonwealth law, section 109 of the Constitution provides that the Commonwealth law prevails to the extent of the inconsistency. It is the role of the courts to determine whether a state law is inconsistent with a Commonwealth law. The Constitution preserves the powers of state parliaments and
deals with the relationships between Commonwealth and state legislation.
I note your concern about the breadth of restrictions and prohibitions provided for by the Bill. However, the Government is working cooperatively with the states and territories to respond to the COVID-19 pandemic, including in relation to quarantine, interstate travel and vaccination. The Commonwealth is not planning to challenge any COVID-19 related state laws at this time.
Thank you for bringing your concerns to the Australian Government’s attention. I hope this information is of assistance.
General Counsel (Constitutional)
Office of Constitutional Law
(Bold emphases added by me)
I sent this letter to my friend and constitutional law professor, Prof. Augusto Zimmermann, for a comment and he replied by email with the following.
Thank you for showing me this letter, which confirms that the Commonwealth government is deliberately conspiring with State governments against the best interests of the Australian people. For the Prime Minister could easily uphold the rule of law and protect our fundamental rights by merely relying on the several heads of power which are particularly found in section 51 of the Constitution.
The invalidity of state laws could be achieved via the problem of inconsistency arising. The solution for the problem of inconsistency between federal and state laws is found in section 109 of the Constitution. Inconsistency means that a state law becomes entirely invalid at the extent of its inconsistency (incompatibility) with a federal law.
Accordingly, the High Court has traditionally applied the ‘cover the field test’ in order to strongly communicate that a federal law will always render an incompatible state law invalid.The ‘cover the field’ test of inconsistency received its first formulation in Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466). There Isaacs J stated that “if a competent [federal] legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another [State} legislature assumes to enter to any extent upon the same field”..
A decade later the ‘cover the field’ test was more systematically formulated by Dixon J in in Victoria v Commonwealth (‘The Kakariki’) . According to Dixon J: “It appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so is inconsistent”.
As stated by then-Australia’s Chief Justice, Sir Harry Gibbs, in ‘The Decline of Federalism?’ (1994) 18 University of Queensland Law Journal 1: “The principle formulated by Isaacs J in Clyde Engineering Co v Cowburn and adopted in subsequent cases, that there is inconsistency when the Commonwealth legislature expressly or impliedly evinces an intention to cover the whole field, and a State legislature assumes to enter to any extend on the same field, has been most influential in insuring the predominance of Commonwealth power at the expense of that of the States. The adoption of that test no doubt indicates that the Courts have favoured a centralist point of view rather than a federal one”.
What it means is that inconsistency that renders state legislation invalid applies whenever there is an intention on the part of the federal legislator that its laws shall be all the only law there is on the particular topic. Of course, this applies to every areas of concurrent legislative power to be found particularly in section 51 of the constitution, including quarantine (s 51 (ix)) and civil conscription (e.g., mandatory vaccination) for medical or pharmaceutical treatment (s51 (xxiiiA)).
As can be seen, the federal government has the power afforded by the Constitution and acknowledged by the Court to ‘cover the field’ in such areas as quarantine and vaccine mandates.
However, it is quite clear to me that the Prime Minister is actually the chief enabler of the oppression of State Premiers. He has even created a National Cabinet that effectively tasked the States and Territories to manage the pandemic in their jurisdictions. The States and Territories then proceeded to impose a brutal and repressive regime on people, assisted and enforced by politicised police forces, sometimes supported by the Army.
I hope you find this helpful.
Professor Augusto Zimmermann
PhD, LLM, LLB, DipEd, CIArb
Professor and Head of Law, Sheridan Institute of Higher Education
President, Western Australian Legal Theory Association (WALTA)
Editor-in-Chief, The Western Australian Jurist
Law Reform Commissioner, WA (2012-2017)
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