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According to the Constitution of Australia, interstate travel must be completely unrestricted. The High Court has stated, however, that in some circumstances, the States may close their borders without violating the Constitution, provided that the closures are reasonable and necessary for a justifiable purpose1. Clive Palmer filed a petition with the High Court of Australia in 2020 to determine if the Western Australian government's border closures in response to COVID-19 violated section 92 of the Constitution and were, therefore, illegal. The Western Australian border restrictions were legitimate under section 92 of the Constitution, according to the High Court's ruling in Palmer v. Western Australia [2021] HCA 5. Based on this ruling, the States may effectively close their borders provided they can demonstrate with evidence that doing so is appropriate and serves a legitimate purpose. In the year 2020, there was a closure of the borders for interstate travelers in western Australia because of a covid-19 pandemic. It was challenged by clive palmer who was a mining magnate regarding the closure of the border after entry to the state was refused by citing section 92 of the constitution of Australia. The high court of Australia also gave a decision against palmer and stated that the ban was upheld by rulings of the guarantee from the constitution of Australia that the free movement of persons is easy to be contravened if the burden of such restriction was mandatory in a reasonable manner. Within the same week, there was a rejection of a challenge by the high courts against the lockdowns ordered by the government in Melbourne city. It was because there was no implied freedom of the movement within a state in the constitution of Australia2.
Biosecurity is defined as a series of measures for giving protection against the spread and entry of pests and several diseases. It also includes the protection of the borders of Australia at the airports and shipping ports. It also involves such habits and practices on the assets or properties for a reduction of the risk of infestation and disease3.
Biosecurity is something that all the producers are good at and has been practicing to some extent, whether they have been aware of the same or not. If the producer is having a boundary at a fence which helps in keeping the neighboring sheep out of the boundary or any refusal in buying sheep with some determined symbols of footrot, all these are instances of the term biosecurity as a practice.
There are various regulations which have been specified under the biosecurity legislation which has been specifying various behaviors that are required to be taken for the prevention or minimization or elimination of the risks of biosecurity which has been posed are required to be posed regarding the matters, dealings, or carriers of the biosecurity. These are also sometimes defined as mandatory measures. These mandatory measures are applicable in a general way or a specified situation like only to some specified class of human being or concerning some specified activities. If various measures are mandatory and apply to certain people who must comply with this measure, regardless of whether they know or those persons should have an idea about the posing of the risks or that are likely to be posed with4. There are various cases if an individual complies with relevant measures that they would discharge their duty of general biosecurity. In some cases, some measures are mandatory and they might state the minimum required actions for discharging the duty. It depends on the situation that there is a requirement for an additional measure concerning the biosecurity5. The important measure might be a result that is based on the prescriptive nature. For example, the mandatory measure in biosecurity might require that the farm machinery is to be free of the seeds of the weed before being moved from the asset. This is the approach that gives flexibility to an individual about how they would be able to achieve the consequences while making sure that the risk of biosecurity has been addressed. Alternatively, there is some important measure that might require that there are specific parts of machinery that require additional care.
The approach regarding the rights of the individual was considered as a dominant view in the case law, Bank of New south wales v Commonwealth [1948], where it was held that the burden in carrying on such trade which is interstate is abled in attracting the protection under section 92, but freedom was not treated as an absolute. This was taken into consideration unless the law has given a direct burden on interstate trade or commerce or any other important attribute so that there would not be any breach of section 92 of the constitution of Australia.
In the case law, Barley Marketing Board NSW v Norman, it has been held that there is a compulsory selling of the grains called barley to the state marketing board, and there was no contravention of section 92 of the constitution of Australia, as the grain has not entered in the trade at interstate level6. The appropriate test which helped in the determination of the issue of the protectionism that is not legal under section 92 of the constitution of Australia has been subsequently formulated in the concerned case law, Castlemaine Tooheys Ltd v South Australia, as the following are-
The Biosecurity Act 2015 is one of the Federal Government's legislation that gives the Health Minister more authority to stop or slow the spread of illness in Australia (Cth). Additionally, each State has laws that provide it additional unique authority to handle emergencies like containing the spread of COVID-19. For instance, the Public Health Act 2010 (NSW) in New South Wales gives the Minister the authority to take any steps they see appropriate to address the risk and potential effects of a public health epidemic7.
Similar to this, under the Western Australian Emergency Management Act 2005 (WA), it is possible to forbid the passage of people, animals, and vehicles inside an "emergency area," allowing a border to be closed to all individuals coming from any location that could be dangerous.
According to the Biosecurity Act, the federal parliament's constitutional authority to establish laws affecting people, places, and events outside of Australia, as well as the foreigner's power, was used to pass the law (allowing laws relating to people who are not Australian).
The law has a clause empowering the health minister to set rules to reduce dangers to people's health. These restrictions may apply to individuals as well as operators of planes and ships coming into or leaving Australia8.
The Health Minister is given further authority under the Biosecurity Act to handle crises that pose dangers to or harm human health on a substantial national scale.
In response to the COVID-19 pandemic, a human biosecurity emergency declaration has been made, triggering these exceptional powers.
The health minister may "determine any condition" that is thought to be required to stop the introduction or spread of illnesses into Australia under the extraordinary powers.
The law includes safeguards to make sure the health minister doesn't abuse his or her exceptional authority. The health minister must be convinced of the following before imposing any requirements:
It is illegal for the health minister to enforce a condition if they are not, or cannot reasonably be expected to be, satisfied with one or more of these things. The maximum punishment for disobeying a legitimate request made by the health minister is five years in jail, 300 penalty units, or sixty-six thousand and six hundred dollars, or both.
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, no. 3 (2018): 647-654.
Finnane, Mark. "Governing in a Pandemic: Law and Government in Australia, 1919." Australian Historical Studies 53, no. 2 (2022): 266-283.
McNamara, Noeleen. "The Good, the Bad and the Ugly: A Short History of Biosecurity Regulation in Australia." The Impact of Law's History (2022): 257-276.
Morton, Rochelle, Michelle L. Hebart, Rachel A. Ankeny, and Alexandra L. Whittaker. "Assessing the uniformity in Australian animal protection law: A statutory comparison." Animals 11, no. 1 (2020): 35.
Nagy, Csongor István. "Clash of trade and national public interest in WTO law: the illusion of ‘weighing and balancing and the theory of reservation." Journal of International Economic Law 23, no. 1 (2020): 143-163.
Peng, Huasong, Muhammad Bilal, and Hafiz MN Iqbal. "Improved biosafety and biosecurity measures and/or strategies to tackle laboratory-acquired infections and related risks." International journal of environmental research and public health 15, no. 12 (2018): 2697.
Saunders, Cheryl. "Australia (Commonwealth of Australia)." In The Forum of Federations Handbook of Federal Countries 2020, pp. 29-39. Palgrave Macmillan, Cham, 2020.
Walpole, Samuel, and William Isdale. "COVID-19, the Principle of Legality and the legislative Bulldozer'of the Biosecurity Act 2015 (Cth)." (2021).
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