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Question: australian constitutional law question in an attempt to get nsw...

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Australian Constitutional Law Question: 


In an attempt to get NSW residents back to work and back to normal the NSW government lifts all the recent restrictions it has put in place for COVID 19 and replaces them with the Covid 19 Safety in Public Places Public Health Amendment Act 2020 (NSW) which takes effect from 1 June 2020.

The Act states as follows:

Section 1

(1)  Any person in a public place in NSW who is unable to, or does not, maintain a safe social distance of approximately 1.5 metres from every other person shall cover their mouth and nose with a mask or cloth face-covering.

(2)  All individuals shall use a mask or cloth face-covering when using the services of any taxi, car, ride-sharing or similar service or means of mass public transport including by train, bus, ferry or light rail, or while within any semi-enclosed transit stop or waiting area. 

(3)  Nothing in subsections (1) or (2) shall require the use of a mask or cloth face-covering by anyone for whom doing so would be contrary to his or her health or safety because of a medical condition. 

(4)  Nothing in subsections (1) or (2) shall require the use of a mask or cloth face-covering on a child in a child-care setting, or school, on anyone under the age of 2 years, or an older child in a non-care or school setting if the parent, guardian or person responsible for the child is unable to place the mask safely on the child’s face. 

Maximum penalty: $1000 or imprisonment for 12 months, or both

The Commonwealth government is outraged by the decision of the NSW government to make wearing masks in public places compulsory. The Minister for Homeland Security is particularly vexed, arguing that terrorists will be able to hide their faces in public and says the Act directly conflicts with laws making it illegal to wear a mask or disguise in order to evade the police. Furthermore, he notes that there are also public health concerns while we are in a state of emergency as the public stockpile of personal protective equipment will be compromised if everyone in NSW, the most populous State in the country, is required to wear a mask in public. Therefore, he convinces the Commonwealth parliament in a rare moment of bipartisan unity to pass the National Health Emergency and Security Act 2020 (Cth) which comes into force on 3 June 2020. 

Section 1 sets out the objects of the Act as follows:

(1)  To make Australia secure from terrorist acts. 

(2)  To make Australia safe in times of health emergencies affecting the nation.


Section 2 of the Act states:

(1)  It shall be unlawful for any person to wear any mask or face covering for the purpose of evading recognition or identification by the police while in a public place.

(2)  Without limiting subsection (1), persons entering any state or Commonwealth government building, court house, banking establishment, public library, university, TAFE, school, museum or Art Gallery, and the Sydney Opera House, must remove any mask or face covering that obscures the mouth, and nose. 

Maximum penalty $10 000 or 12 months imprisonment

Section 3 of the Act states:

It shall be unlawful for any person who:

(1)   is not suffering from a medical condition; or

(2)   is not a health care worker, 

to wear a mask in public that is graded N95 or higher unless they have been required to do so by a medical practitioner.

Maximum penalty: $1000 or imprisonment for 6 months, or both.

Section 4 states:

This section establishes the Health Emergency and Security Commission (HESC) which:

(1)  shall consist of four members appointed by the Minister of Defence for a period of five years:

(a)  a President who is also a judge of the Federal Court of Australia;

(b)  a national security advisor;

(c)    a medical practitioner; and

(d)  an ordinary member of the Australian community.


Section 5 states:

The HESC shall undertake the following specific activities:

(1) Subject to approval by the Minister for Health and the Minister for Defence, provide factual information advising the public on: 

(a)   the cause or causes of any pandemic;

(b)   the effectiveness of prescription medications and other substances in protecting against a pandemic virus;

(c)   vaccinations in relation to a specific pandemic virus; and

(d)   the appropriate protective equipment to be worn in public places when a pandemic is declared by the federal Health Minister.


Section 6 states: 

The President of the HESC shall hear and determine any matter involving a breach of this Act except breaches of section 7 of the Act.

Section 7 states:

Any person who disseminates false health information on social media about: 

(1)   the cause of a pandemic;

(2)   the effectiveness of unproven prescription medications against a pandemic virus;

(3)   vaccinations; or

(4)   the effectiveness of protective equipment such as medical grade masks and gloves,

commits an offence under this Act punishable by a fine of $10 000 or 12 months imprisonment.

PART A (worth 8 marks)

Boris lives in NSW and loves exercising in the public park next to his house. He does not, however, believe he can exercise while wearing a face mask. He is happy to wear one at all other times. On the 13 June he is doing his daily squats in the park not wearing a mask when he is stopped by the NSW police and fined on the spot. Advise Boris whether there are any CONSTITUTIONAL grounds on which he may challenge the fine.

PART B (worth 6 marks)

Vladimir is a nurse who is also in NSW and sees himself as a very law-abiding citizen. He is provided with N95 grade mask for wearing at his hospital when he is on duty as a nurse but he also wears it whenever he goes anywhere just to be safe as he does not want to expose his patients to COVID 19. On 18th June he attends a court hearing for a friend who is being charged with not wearing a mask. He sits in the court without removing his mask and is immediately arrested by the Federal police and brought before the HESC for breach of the Commonwealth Act. The HESC finds him guilty of breaching both section 2(2) and section 3 of the Act and he is fined $10000 for breaching s2(2) and $1000 for breaching s3. He refuses to pay and is now in gaol. Advise Vladimir on which CONSTITUTIONAL grounds he may appeal the decision. You should notconsider issues of characterisation, Implied Freedom of Political Communication or s109 for Part B.

PART C (worth 6 marks)

The HESC issued its first public bulletin on June 13, 2020. The bulletin, called “Get the Facts on COVID 19”, has three important sections that are aimed at stopping misinformation about the cause and treatment of COVID 19. In a section titled “The Causes of COVID 19” the HESC outlines that while the original source of the virus is as yet unconfirmed, scientists believe the virus may have developed from two animal sources before it was transferred to humans. The bulletin then goes on to say, however, that there is no scientific evidence that the virus is caused by or amplified by 5G wi-fi technology. In a second section, entitled “Treatments for COVID 19”, the HESC points out that while there are currently a number of studies being undertaken there is no definitive proof that any prescription medicine currently available either protects against the virus or aids in its treatment. The last section of the bulletin entitled “Personal protective equipment” states that only masks graded N95 and above can protect against COVID 19 and only when worn correctly and replaced when moist. Other masks and soft face-coverings may provide some protection from the virus but are far less effective. 

Scott is a member of a small religious cult that has as its primary belief system the rejection of wi-fi technologies. They believe the pandemic has been caused by 5G wi-fi and that it can be cured by the ingestion of the prescription medication Wifiresitamax. He has published a blog post on his church website which states in part:

“COVID 19 is caused by 5G rays and the government is hiding these facts from the public and it is our duty to disseminate the truth.”

He also recommends that his followers prepare themselves for the virus which they will not be able to avoid as there are 5G mobile towers everywhere in NSW. He states: 

“The safest way to avoid death from COVID 19 is to take the proven prescription medicine Wifiresistamax.” He also offers to provide a list of doctors who are willing to prescribe the medicine to his parishioners for a small fee. 

Scott is arrested and charged under section 7 of the Commonwealth Act. He has not yet had his matter heard but is awaiting his trial before a single judge in the Federal Court. Advise Scott whether there are any CONSTITUTIONAL arguments he may make to challenge the arrest. You should not consider issues of characterisation or s109 for Part C. 

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