COVID-19: Government powers implications

Navigating the complex interplay of federal and state measures to control the pandemic

The Federal Government's role has been to provide policy leadership, coordination and funding, as well as to implement measures within its constitutional powers, such as travel restrictions and quarantine requirements. The role of the states and territories has been to implement measures relating to health and emergency management within their respective jurisdictions.

As governments ease certain some COVID-19 restrictions, we are seeing a range of new or updated measures at both federal and state and territory level each day. To support businesses manage these unprecedented challenges, we have summaried of key powers available to governments during a health crisis and detail how those powers have been used in response to the COVID-19 emergency.

 

Your key questions answered on Government powers during a health crisis

Contacts: Penny Alexander, Alf PappalardoJeremy Quan-Sing
Last updated: 11 May 2020

What powers does the government have to deal with the COVID-19 outbreak?

The Federal Government and state and territory governments each have very broad, but not unlimited, powers in relation to a public health crisis. Many of these powers have now been exercised by government to implement emergency measures in response to COVID-19.

Federal Government

A key source of power for government at the federal level is the Biosecurity Act 2015 (Cth). This Act provides the Federal Health Minister with a range of powers to implement biosecurity arrangements so as to curtail the spread and severity of 'listed human diseases'. COVID-19 is currently designated by the Department of Health as a listed human disease.

Following the declaration by the Governor-General on 18 March 2020 of a 'human biosecurity emergency', the powers of the Federal Health Minister were expanded to include a range of very broad emergency powers. As discussed further below, these emergency powers have since been used to implement a range of measures in response to COVID-19.

The Federal Government may also exercise power under a range of other statutes in order to respond to the COVID-19 outbreak, including, for example, the Customs Act 1901 (Cth), which permits the Governor-General to prohibit the export of goods from Australia. Many of these powers have also been deployed to support the Federal Government's approach to the current crisis.

State and territory governments

The states and territories each have separate legislative powers that have enabled them to implement relevant biosecurity arrangements in their respective jurisdictions, and have a range of public health and emergency response powers under existing legislation. These include powers of detention and forced quarantine. As the COVID-19 emergency has unfolded, the state and territory governments also have shown a willingness to pass legislation to amplify existing powers when required.

In a number of jurisdictions, steps have also been taken to ensure that the executive branch of government can respond proactively to the legal challenges presented by the COVID-19 outbreak. This includes, for example:

  • in Victoria, the grant of regulation-making power to the Governor in Council to allow regulations to be made in relation to a range of laws, including certain procedural requirements, as well as retail leases and non-retail commercial leases and licences;
  • in NSW, the grant of power to the executive to temporarily amend certain statutes (such as the Powers of Attorney Act 2003 (NSW), the Conveyancing Act 1919 (NSW), and the Oaths Act 1900 (NSW)) in certain circumstances;
  • in QLD, the establishment of a 'legislative modification framework' to permit certain legislative requirements, such as in relation to certain procedural requirements, to be modified where required; and
  • in Tasmania, the introduction of the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (Tas) to give power to the Premier, the Treasurer and the Attorney-General to make declarations by public notice to adjust the operation of a range of statutory requirements including, for example, statutory timeframes and planning laws.
How are the broad powers of government being exercised?

The Australian governments, both at Federal and state and territory level, have introduced a number of emergency measures in response to COVID-19. Many of these measures are directly relevant to businesses, their employees and their customers, and so should be carefully considered.

In some cases, particularly when implemented at state or territory level, the measures are not uniform across Australia. This trend is expected to continue, with state and territory governments across Australia each adopting their own timeline for easing the restrictions currently in force, having regard to the particular circumstances of their respective jurisdictions. As a general guide, however, the core measures relevant to businesses can be understood as falling into 7 main categories.

'Stay at home' directions

A number of jurisdictions have now implemented 'stay at home' directions. Directions of this kind generally require a person not to leave their place of residence, except where an exemption applies. Examples of these restrictions can be found in the 'Stay at Home Direction' in Victoria and the 'Public Health (COVID-19 Restrictions on Gathering and Movement) Order' in New South Wales.

Exemptions are generally available to permit a person to leave their place of residence for the purposes of, among other things, obtaining essential supplies or attending work where they are unable to work from home. However, the precise wording of the restrictions applicable in each jurisdiction, and the available exemptions, can vary, and must therefore be considered on a case by case basis, particularly as governments look to ease, or otherwise revise, these restrictions in the short-term future.

These restrictions can impact businesses in a number of ways, including by restricting the ability of employees to attend work or customers to attend physical premises.

Not all jurisdictions throughout Australia have adopted stay at home restrictions. As of the date of this article, the jurisdictions in which stay at home restrictions have been implemented are Victoria, New South Wales, Queensland and Tasmania. However, it is possible that restrictions of this kind may be introduced into other jurisdictions in the future, particularly if further outbreaks occur.

Gathering restrictions

Throughout the COVID-19 emergency, gathering restrictions have been implemented in some form in each Australian jurisdiction, although in the Northern Territory, the core restrictions have now been revoked.

These restrictions are often found in the same order or direction as any 'stay at home' restrictions. Examples of these restrictions can be found in the 'Home Confinement, Movement and Gathering Direction' in force in Queensland and the 'Closure and Restriction (Limit the Spread) Directions' in force in Western Australia.

Restrictions of this kind generally prohibit persons from gathering in certain numbers at certain places. The relevant direction will, in some cases, also impose obligations on third parties (such as owners or occupiers of premises) to prevent certain gatherings from occurring.

These restrictions can have a significant effect on businesses by, among other things, restricting the number of employees or customers who can gather in a particular place at a given time. They may also have a number of other indirect effects.

Density restrictions

A number of the directions currently in force across Australia include density restrictions. These restrictions generally apply to owners or occupiers of premises, and require such persons to ensure that the total number of persons present in a particular place does not exceed a specified 'density quotient'.

The density quotient, and therefore the total number of persons permitted in a given space, will generally depend on the size of the space itself. For example, in Victoria, under the Restricted Activity Direction currently in force, the density quotient of a single undivided indoor space is calculated by dividing the total area of the space in square metres by four.

These restrictions can affect businesses by requiring them to monitor and control the number of staff and/or customers who are present in a given place at a particular time and in this way, can have a similar practical effect to gathering restrictions. In some cases, ancillary obligations (such as those relating to signage) will also apply.

Density restrictions have not been imposed in a uniform fashion across Australia. As such, their precise application to your business should be carefully considered in each relevant jurisdiction.

Restrictions on non-essential businesses

Restrictions on non-essential businesses have been implemented in some form in each Australian jurisdiction, and continue to be updated and amended as the COVID-19 emergency continues and the needs of the broader community evolve. Examples of such measures can be found in Victoria's Restricted Activity Directions, as well as the Northern Territory's 'Directions to Close Public Places, Services and Activities'.

These restrictions generally prohibit or otherwise limit the operation of a range of specified non-essential businesses. In some cases, the operation of a particular business will be prohibited outright. In other cases, a particular business will be permitted to operate on a limited basis, provided it complies with a range of conditions (including, for example, social distancing and other hygiene measures).

These restrictions can clearly have a significant impact on businesses by prohibiting or otherwise limiting their operation. Further, even if a business is permitted to operate, it may be required to comply with a range of conditions (in addition to those applicable under the separate gathering and density restrictions in force in the relevant jurisdiction).

Border controls

In order to control the spread of COVID-19 throughout Australia, both the federal and state and territory governments have introduced a range of measures relating to border control. The nature and severity of these measures vary depending on the jurisdiction.

At the federal level, such measures include:

  • restrictions on access to remote communities in South Australia, Queensland, Western Australia and the Northern Territory;
  • restrictions on Australian citizens and permanent residents from travelling overseas (subject to certain exemptions); and
  • screening requirements for persons leaving Australia to certain destinations.

At the state or territory level, measures include:

  • border closures in Queensland and Western Australia;
  • a range of quarantine or isolation requirements for persons arriving in Victoria, New South Wales, South Australia, Tasmania, Northern Territory and Australian Capital Territory, and persons arriving in Western Australia or Queensland who are exempt from the border closures; and
  • restrictions on access to certain regional areas or islands within state or territory borders (such as in New South Wales, Western Australia and Tasmania).

These measures may impact businesses in a range of ways, including by restricting or otherwise disrupting the movement of their employees and other personnel, affecting supply chains and causing a range of other logistical issues.

Export restrictions

As part of its response to the COVID-19 outbreak, the Federal Government has also taken steps to ensure the continuing availability within Australia of certain healthcare and hygiene products. To that end, the Federal Government has introduced restrictions under the Customs Act 1901 (Cth) prohibiting the export of products such as disposable face masks and gloves, hand sanitiser and alcohol wipes. These restrictions are subject to a number of exemptions, including for manufacturers and persons who export such goods in the ordinary course of their business. Further restrictions of this kind may be introduced as the situation develops.

Amendments to planning and retail trading laws

Various state and territory governments have amended planning and retail trading laws to ensure that members of the community continue to have access to important supplies during the COVID-19 outbreak and more broadly to permit certain development (without further approval) where it is necessary to ensure the health, safety and welfare of the public. Such measures include the following:

  • In Victoria, the Victoria Planning Provisions have been amended so as to remove planning restrictions on the hours or days during which the loading and unloading, dispatch and delivery of food and other essential goods can occur. The purpose of this amendment is to allow supermarkets, hospitals, pharmacies and other essential businesses to continue to meet significant community demand. Unusually, the new provision, which is embedded in all Victorian planning schemes, purports to override the conditions attaching to existing planning permits.
  • In NSW, the Environmental Planning and Assessment (COVID-19 Development – Extended Operation) Order 2020 (NSW), allows for all retail premises (not just supermarkets, pharmacies and corner stores) to operate 24 hours per day. Provisions have also been made to override permit restrictions on delivery hours, to allow for 24 hour delivery.
  • In Queensland, amendments have been made to the Planning Act 2016 (QLD) to allow the Minister for Planning to permit certain essential businesses such as supermarkets, to operate 24 hours a day, seven days a week during an event such as the COVID-19 pandemic. The Chief Health Officer has also issued a notice under the Public Health Act 2005 (QLD), the effect of which is to permit businesses used predominately for the sale of food or groceries to open from 7am on a day the business is permitted to trade until the end of the COVID-19 emergency.
  • In the Northern Territory, the Planning Minister and Development Consent Authority have lifted restrictions imposed through conditions under development permits which limit the hours of operation or times of delivery for food and retail businesses for the duration of the COVID-19 pandemic.
  • In Western Australia, the Planning and Development (Local Planning Schemes) Amendment Regulations 2020 (WA) have been introduced which, among other things, permit the Minister in certain circumstances to issue exemptions from planning requirements during a state of emergency. An exemption must be necessary for the purpose of facilitating response to, or recovery from, the COVID-19 emergency.
  • In South Australia, the legislative regime has been amended in response to the COVID-19 emergency. The amendments, among other things, exempt certain persons from the need to comply with any development approval restrictions relating to loading or unloading goods at the shop at any time, or opening the shop to the public at any time. This exemption applies to anyone operating a shop used primarily for the sale of foodstuffs by retail, or any other kind of persons operating premises of a kind specified by the Minister.
Can I seek an exemption from an order made under these powers?

A business which stands to be affected by an order of government, such as one affecting its ability to trade, may be able to seek an exemption in certain circumstances.

Whilst in general, there is no specific legislative framework setting out the process by which such exemptions can be sought, several of the orders which have been imposed to date specifically contemplate the grant of written exemptions.

Businesses should consider whether they are or are likely to be affected by an order of government, and take proactive steps to seek out appropriate exemptions if needed.

Are there limitations on these powers?

Although very broad, the powers of the Federal Government, and state and territory governments, are not unlimited.

Under the Biosecurity Act, for example, the power of the Federal Health Minister to determine emergency requirements during a human biosecurity emergency is limited to measures which they consider necessary to 'prevent or control' the disease, or to implement certain recommendations of the World Health Organization.  This power may also only be exercised during a human biosecurity emergency period, although the duration of that period may be extended by the Governor-General.

Similar considerations apply under state or territory based legislation.

There are also a number of principles at general law, which may serve in certain circumstances, to constrain the exercise of government power.

Can I be penalised for not complying with an order made under these powers?

YES

Under the Biosecurity Act, the penalties for contravening determinations made regarding a listed human disease (which include preventative biosecurity measures and requirements imposed on entry to or exit from Australia) include financial penalties, and contravention of a human biosecurity control order may also involve imprisonment (for five years).

Penalties for contravening determinations or directions made under the special powers of the Federal Health Minister during a human biosecurity emergency declaration period (including, for example, emergency restrictions on overseas travel) include imprisonment for individuals (for five years), and/or financial penalties.

There are also separate penalties for non-compliance with other relevant Federal, state and territory legislation.

What steps are the Federal Government, and state and territory governments, taking to protect businesses from the economic impacts of COVID-19?

The Federal Government continues to progressively announce and subsequently implement a series of economic stimulus packages and other measures in response to the economic impact of COVID-19. These include direct funding support for targeted businesses, new government projects as well as relief from government charges or taxation.

Among the initiatives are the following:

  • $130bn 'JobKeeper Payment' - Under this scheme, businesses which are impacted by COVID-19 can access a wage subsidy from the Federal Government in order to continue to pay their employees. Affected employers can claim fortnightly payments of $1500 per eligible employee from 30 March 2020, for a maximum period of 6 months. For further details on the eligibility requirements, click here.
  • Cash flow support for small and medium-sized businesses – The Federal Government is providing temporary cash flow support of between $20, 000 and $100, 000 for certain eligible small and medium-sized businesses as well as not-for-profits.
  • Temporary relief for financially distressed businesses – The Federal Government has temporarily increased the threshold at which creditors can issue statutory demands on companies, as well as the time that companies have to respond to such demands.
  • Increase to the instant asset write-off – The Federal Government has increased the instant asset-write off threshold to $150, 000 (up from $30, 000) until 30 June 2020. Access is expanded to included businesses with an aggregated annual turnover of less than $500m (up from $50m).
  • Support for business investment – The Federal Government is providing a 'time limited 15 month investment incentive' to support business investment in the short-term future. As part of this incentive, businesses which have a turnover of less than $500m are able to deduct 50% of the cost of an eligible asset on installation, with existing depreciation rules applying to the balance of the asset's cost.
  • Support for COVID-19 affected regions, communities and industry sectors – The Federal Government has also established a $1bn COVID-19 Relief and Recovery Fund to support regions, communities and industry sectors which are most significantly affected by COVID-19. Initial measures which have been introduced include, among others:
    • a $110m freight service to allow the agricultural and fisheries sector to export their produce and to reconnect with international customers;
    • $49.8m in funding for the Export Market Development Grants program in the 2019-20 financial year, to enable exporters and tourism business to obtain additional reimbursements for their costs incurred in marketing their products and services worldwide; and
    • a $94.6m support package for zoos and aquariums, which are seen to be crucial to the visitor economies of a number of regional towns across Australia. The funding will assist with the fixed operational costs associated with the care of animals.
  • Support for the airline industry – The Federal Government has announced, and is in the process of implementing, a range of measures to support the airline industry, including:
    • an estimated $715m package providing relief from various taxes and government charges;
    • a $198m Reginal Airlines Network Support program to underwrite flights to regional and remote communities; and
    • a further $165m in support for Qantas and Virgin to operate a minimum domestic network serving the most critical metropolitan and regional routes throughout Australia.
  • Support for the aged care sector – The Federal Government has announced a one-off $205m support payment for providers in the aged care sector. Providers will receive approximately $900 per resident in major metropolitan areas, and approximately $1350 per resident in all other areas.
  • Support for the legal assistance sector – The Federal Government has announced an additional $63.3m in support for the legal assistance sector, including $49.8m for additional frontline legal services and $13.5m for IT costs so as to support the sector's transition towards the virtual and online delivery of legal assistance.
  • Funding for COVID-19 research – As part of its $352m pledge to the European Union to support the development of a vaccine, the Federal Government is providing $337m in funding to support COVID-19 research and development work on vaccines, diagnostics, therapeutics and respiratory medicine in Australia.
  • Fast-tracking the $1bn Pacific Motorway upgrade in the Gold Coast – The $1bn M1 Pacific Motorway – Varsity Lakes to Tugun project is being jointly funded by the Federal and Queensland governments, with each contributing $500m. The project has been fast-tracked so as to reduce congestion and create jobs to assist in the COVID-19 recovery.

Further information about the Federal government's economic response to the COVID-19 outbreak is available here.

To support the Federal Government's response, a number of supplementary economic stimulus packages or other economic measures have also been announced, and are being implemented, at state and territory level. Examples of such initiatives include, among other things, emergency cash grants for certain eligible businesses or not-for-profits, waivers of certain government fees and charges, and payroll tax relief. A number of state governments have also taken steps to fast-track existing projects so as to stimulate the economy and create jobs, including the NSW Government which has announced accelerated assessment processes for 24 projects, such as the construction of new homes,
industrial complexes and schools.

Further information regarding the economic measures being implemented by the states and territories is available at the following links: New South Wales, Victorian, Queensland, South Australian, Western Australian, Australian Capital Territory, Tasmanian and Northern Territory.

What is the federal position on ports and COVID-19?

As outlined in the Prime Minister's 19 March press statement, the federal stance is that a vessel may berth in Australia at any time; however, if the vessel arrives within 14 days from its last international port of call, the following restrictions apply:

  • all crew must remain on board while the vessel is berthed in Australia;
  • crew are able to disembark to conduct essential vessel functions but must wear personal protective equipment (PPE) while performing these functions; and
  • crew must use PPE in public spaces on board the vessel while non-crew members are on board.

These restrictions apply until 14 days have elapsed since the vessel departed the last foreign port before Australia, unless crew are unwell or there is a suspected case of COVID-19 on-board.

  • The period maritime crew spend at sea before their arrival in Australia counts towards the 14-day period of self-isolation
  • Shore leave can be taken once the 14-day period has elapsed, so long as no crewmember has demonstrated signs of illness or is suspected of having COVID-19.

Further, The National Cabinet has recently agreed that the Australian Government and all states and territories will implement a consistent and immediate exemption for non-cruise maritime crew to provide for the transiting to and from their places of work, within and across jurisdictions with agreed documentation. National Cabinet noted that states and territories may adopt additional protocols in consultation with industry that creates protection for crews on board vessels, and will put in place appropriate penalties for companies and individuals that are found to be in breach of the requirements of the exemption which will be reviewed on 1 June 2020.

It looks like all the states are mostly aligned with the federal policy at the moment. Some states have chosen to implement measures beyond the federal requirements:

  • Queensland's ports are also prohibiting ships that had their last port of call in China or South Korea from coming into their ports until 14 days have passed – meaning they will be in offshore quarantine for this time.

WA and Tasmania have adopted the National Cabinets exemption for non-cruise maritime crew. They have implemented the following rules:

Crew members may disembark an affected vessel if:

  • They have a flight out of the state in the next 24 hours;
  • They remain on the ship until they have to leave to get to the airport;
  • They take the most direct route, without stopping unless by law or for petrol, to the airport;
  • They take care to follow COVID-19 guidelines (social distancing, and hygiene etc.).

OR

  • They are going to a hotel to isolate before their flight;
  • Only leave the hotel when it is necessary to get to the airport.

OR

  • They are a state resident and have a suitable premise to self-isolate for 14 days.

OR

  • They are boarding another vessel at the same port;
  • They go directly to the vessel and board immediately.
What are the regulatory/statutory powers that give effect to the port's measures?

The Coronavirus response is being managed by the Federal Government Department of Agriculture, the Department of Health, and by relevant authorities at state level.

At a state level, the following statutes:

  • WA: Port Authority Act 1999;
  • QLD: Government Owned Corporations Act 1993 and Transport Infrastructure Act 1994;
  • NSW: State Owned Corporations Act 1989 and Ports and Maritime Administration Act 1995;
  • VIC: Transport Integration Act 2010 and Marine Safety Act 2010;
  • SA: Harbors and Navigation Act 1993;
  • NT: Ports Management Act 2015; and
  • TAS: Tasmanian Ports Corporation Act 2005,

give port authorities control over the port and any powers necessary to perform its functions, which generally include the power to control business and other activities in the port, facilitate trade within and through the port, and be responsible for the safe operation of the port.

The federal 14-day quarantine policy will override the port's powers under state law. Port authorities will therefore be bound by the 14-day isolation rule but can also implement stricter protocols if they wish to.

As a result of the South Australian Government closing their borders and the mandatory 14-day self-isolation period for every person that visits the State, SA ports will now restrict any visiting crews to their individual ships. No shore leave is being granted to any ship’s crew. They are permitted to come onto the wharf to perform their normal functions but they will be isolated from local port staff and the public.

The Australian Border Force has also stated it will increase the number of patrols at all South Australian ports to ensure these new rules are adhered to.

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