Coronavirus and the machinery of government – how do governments enforce the restrictions they impose?
Rules and restrictions related to COVID-19
Over the past few weeks, the media has been full of political leaders, both state and federal, together with government health officials, laying down rules and restrictions related to coronavirus, COVID-19. But how do these rules actually work? How does the machinery of government operate?
Understanding this needs to start from the legal framework under which Australia operates. (For simplicity, I do not refer separately to territories, which are administered by the Commonwealth government.)
Splitting of powers between federal government and the states
Australia is, as everyone knows, a federated country. The federal constitution gives specific powers to the Commonwealth government. But if the Commonwealth government hasn’t been given power by the constitution to legislate on a specific subject matter, it is the states that hold this power. And health is not among the things on which the Commonwealth can legislate.
So why do the Prime Minister, and the Commonwealth Chief Medical Officer, talk as though they are making the rules?
On a political level, the answer is simple: this is a crisis, and everyone would hope and expect that governments, both state and federal, would work cooperatively to deal with it, regardless of which arm of government actually holds the legal power to make enforceable rules.
“Nationhood power” allows federal government to act in a crisis
In this connection it will be recalled that, during the 2008 global financial crisis, there was a cash stimulus package which was challenged, not by any arm of government but instead by an individual in the High Court, on the basis that the Commonwealth had no power under the constitution to hand money out directly to people, rather than by way of grants administered through the states.
This challenge was rejected, in part on the basis of the Commonwealth’s so-called “nationhood power”, which isn’t actually a power to be found in the constitution, but instead a way of describing an interpretation to the effect that it had never been intended that the constitution might inhibit the Commonwealth government from doing anything any nation might reasonably do to react in a time of crisis.
However there have been, for many decades, Commonwealth/state administrative structures designed to maximise cooperation and consistency between both levels of government. They don’t always work well, but they are now an integral part of the framework of government in Australia.
The pandemic is a health issue, and the health powers are held by the states.
Power to enforce closures and restrictions on movement during coronavirus pandemic
We hear people ask how it can be that suddenly it can be an offence to gather in public with more than a small handful of people, or to keep a business open, no matter how much care might be taken to avoid spreading infection. And, how it is that fines can be imposed?
Looking at NSW legislation (and other states have provisions with similar effects), Part 2 of the Public Health Act 2010 provides the minister with the power to make, and to enforce, a wide range of orders, broadly to combat public health risks. (We know it’s the Minister for Health because section 15 of the NSW Interpretation Act says that, in any act of parliament, “minister” means the minister of the Crown responsible for administering the act in question.)
Orders made by Minister for Health underpin government announcements
So, the “rules” we have been talking about are not in any parliamentary enactment, but have the force of law if made in the form of an order made by the Minister for Health. Assuming any such order has a logical connection to the protection of public health, it is enforceable according to its terms.
It can be safely assumed that, while it may be the Prime Minister or Premier making the announcement, it will have been underpinned by some order made by the Minister and published in the Government Gazette.
So the answer is fairly simple. The questions are, instead, a product not of the complexity of the situation, but instead of the fact that this is part of the machinery of government that most people never see.
For more information please see New police powers in NSW to help combat coronavirus.