covid-19 Draft Emergency Legislative Instrument

I am sure lawyers could produce a much better draft, along with any appropriate backup drafts for a referendum to amend the Australian Constitution and the composition of the High Court.

But the following ought to establish that any failure to prevent NSW falling is not due to lack of legal powers to intervene.

Consequently at any future trials for misconduct in public office or incitement of such misconduct it should not be assumed that only officers of NSW would be defendants.

Of course before actually exercising in NSW the dictatorial powers that the Chief Health Officers of the other States are already exercising in their own jurisdictions (including detention orders for tens of thousands of people), the AHPPC should first spell out what it requires NSW to do and what assistance other jurisdictions will provide to do it.

They are the only people in a position to decide what is necessary and how to go about it.

I would assume that an out of control Delta outbreak that has already been allowed to reach half the level of Victoria’s second wave would require a much more drastic “stage 5” lockdown than was needed for several months in Victoria. Essentially a 24 lockdown curfew with rostered hours for exercise and distribution of essential supplies. Supermarkets would be stocked from interstate. That would give hope within a couple of weeks and could be eased back to “stage 4” levels within a month or so.

My assumptions are irrelevant as are those of any other commentator. But the CHO of NSW stated weeks ago that there was a national emergency and the people who will be held responsible for failing to implement the measures that only they are competent to decide on are the CHOs of the other States.

This is the second article in the series I promised on “shambolic clots”. In later articles I will explain the significance of including the W.H.O. recommendations numbered 3 and 9. The failure to enforce in NSW necessary measures specified in recommendation 1 should be self-explanatory. The CHOs of the AHPCC and ATAGI should already know the relevance of recommendation 3 to the disgraceful behaviour of both Commonwealth and NSW governments. I doubt that they have thought about the possible use of powers under recommendation 9 to counter the massive public misinformation campaign that their opponents ae engaged in.

Anywhere here is “draft 0”:

Whereas the Governer General has determined that a Human Biosecurity Emergency with respect to covid-19 exists under section 475 and the Health Minister is satisfied under section 477 of the Human Biosecurity Act 2015 [1] that the emergency requirements specified in the attached schedule 1 are necessary under the following subsections:

(1) (a) to prevent or control: (ii) the spread of the covid-19 listed human disease from parts of New South Wales to all other parts of New South Wales and other Australian territory (b) to prevent or control the spread of covid-19 from Australia to any other country; and (c) to give effect to the recommendations identified as "critical for all countries" that have been given by the World Health Organization under Part III of the International Health Regulations[2] by decision of the eighth meeting of the W.H.O. Emergency Committee regarding the coronavirus disease (COVID-19) pandemic which took place on Wednesday, 14 July 2021 [3] as follows:

1. Continue to use evidence-informed PHSM [Public Health and Social Measures] based on real time monitoring of the epidemiologic situation and health system capacities, taking into account the potential cumulative effects of these measures. … The use of established public health measures in response to individual cases or clusters of cases, including contact tracing, quarantine and isolation, must continue to be adapted to the epidemiological and social context and enforced.

3. Achieve the WHO call to action to have at least 10% of all countries’ populations vaccinated by September 2021. Increased global solidarity is needed to protect vulnerable populations from the emergence and spread of SARS CoV-2 variants. Noting that many countries have now vaccinated their priority populations, it is recommended that doses should be shared with countries that have limited access before expanding national vaccination programmes into lower risk groups…

9. Address community engagement and communications gaps at national and local levels to reduce COVID-19 transmission, counter misinformation, and improve COVID-19 vaccine acceptance, where applicable. This will require reinforcing messages that a comprehensive public health response is needed, including the continued use of PHSM alongside increasing vaccination coverage.

(2) The requirements specified in schedule 1 are determined as a legislative instrument that is not subject to disallowance under section 42 of the Legislation Act 2003 [4]

(3) These requirements apply to:

(a) persons, goods or conveyances when entering or leaving any place in New South Wales;
(b) the movement of persons, goods or conveyances in or between any place in New South Wales and any other place in New South Wales or anywhere else in Australia or elsewhere;
(c) the evacuation of any place in New South Wales;
(d) and any measure required for the purposes of giving
effect to the International Health Regulations recommendations specified in 1(c)

(4) The Health Minister is satisfied of all of the following:
(a) that the requirement is likely to be effective in, or to
contribute to, achieving the purpose for which it is to be
determined;
(b) that the requirement is appropriate and adapted to achieve the purpose for which it is to be determined;
(c) that the requirement is no more restrictive or intrusive than is required in the circumstances. The circumstances that require the sudden and immediate exercise of extreme and intrusive restrictive dictatorial powers are that failure to aggressively suppress covid-19 in New South Wales would result in catastrophic collapse of hospital systems throughout Australia with massive deaths;
(d) that the manner in which the requirement is to be applied is no more restrictive or intrusive than is required in the
circumstances;
(e) that the period during which the requirement is to apply is only as long as is necessary.

(5) The requirements determined apply despite any provision of any other Australian law and in particular apply despite the provisions of sections 479(5)[4] and 545(2)[5] of the Human Biosecurity Act 2015 and any provision of any law of New South Wales[4] and any provision of any law that gives jurisdiction to any Court or Tribunal to hear and determine any matter.

Schedule 1.

  1. The Australian Health Protection Principal Committee (AHPPC) shall take charge of all aspects of the public health response to covid-19 in New South Wales and shall draft directions from the Minister under s478 of the Human Biosecurity Act 2015 to aggressively suppress community transmission of covid-19 in New South Wales and to implement the specified recommendations of the International Health Regulations Emergency Committee.
  2. The Governor of New South Wales, the Ministers of the NSW Government, both houses of the legislature of NSW, the courts of NSW and all other officers and employees of New South Wales shall actively implement all such directions by all means available to them including legislation, legislative instruments, appointments and dismissal of officers and employees and directions under NSW law.
  3. All States and Territories of Australia shall provide maximum assistance to the people of New South Wales by emergency supplies of essential goods and services at the expense of the Commonwealth.
  4. No person may enter or leave any place in New South Wales for any purpose except in accordance with the public health directions drafted by the AHPCC and given by the Health Minister under section 478 of the Human Biosecurity Act 2015.[6]

References:

  1. https://www.legislation.gov.au/Details/C2017C00303
  2. International Health Regulations 2005, Third edition
    https://www.who.int/publications/i/item/9789241580496
  3. https://www.who.int/news/item/15-07-2021-statement-on-the-eighth-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-coronavirus-disease-(covid-19)-pandemic
  4. s479(5) would otherwise prevent a direction under subsection s479(1) to an officer or employee of a State, Territory or State or Territory body unless the direction is in accordance with an agreement between the Commonwealth and the State, Territory or body.
  5. s545(2) would otherwise not permit the Director of Biosecurity to authorise an officer or employee of a State or Territory body to be a biosecurity officer unless an arrangement is in force under section 547 in relation to the officer or employee.
  6. The penalty under section 479 for not complying is five years imprisonment or 300 penalty units or both.

One thought on “covid-19 Draft Emergency Legislative Instrument

  1. Pingback: covid-19 Pandemic of the unvaccinated | C21st Left

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