1. Are State border closures lawful?  


Yes.

Australia is a federation of States. Section 92 of the Constitution provides for freedom of movement between States. But the High Court has held that does not prevent each State closing its State borders for health reasons.   

 

2. Are State lockdowns lawful?  

Yes

Each State Parliament is supreme in passing its own laws on lockdowns. It has power to override the Universal Declaration of Human Rights which provides for the basic rights and freedoms of individuals, including the right of free movement within State borders and to leave the State and return, and the right to peacefully assemble. 

 

3. Are the powers of the State health officials in relation to Covid lawful?  

Yes

The State health officials have been given wide powers and protections by the State Governments. Victoria declared a ‘state of emergency’ under the Public Health and Well Being Act.  

 

4. Are the powers of State police in relation to Covid lawful?  

Yes.  

On the request of Victorian Police Association, the Victorian Government declared a ‘state of disaster’ under the Emergency Management Act to give Victorian Police greater powers in relation to Covid. There are limits on the exercise of powers, for example what happened to Zoe Buhler, the pregnant mother who expressed her opinion on Facebook. 

 

5. Do Australians have any freedoms left that cannot be overridden by State Parliaments?

No.

 

The only freedom left is to think. And subject to certain restrictions, a person has freedom to express his or her views. The State Government has, however, the power to override the freedom to express a person’s views.  

It is open to debate whether these laws are just.  

-Robin Speed, Rule of Law Institute, 5th August 2021  

 

What are some ways we can express our view to those in Parliament?

In NSW, many laws and regulations that impact our everyday lives are made and passed by NSW Parliament. Therefore, the best way to change a law or the impact of a law, is to petition directly to those making the laws, such as the NSW Legislative Assembly. You can request a change to laws or a different course of action. Any resident can start a petition and then get other residents to join together to support your community concern.  Click the image for our 5 easy steps to start a petition to the NSW Parliament.

 

Do I have to wear a mask when I go for a run in a ‘hard lockdown’ area?

The rule of law requires the law to be known and accessible.  It is important that Australians know and understand the laws that apply to them as they can only be punished in accordance to the law.  In recent weeks, there has been confusion about whether residents in ‘hard lockdown’ areas need to wear a mask when they go for a run.

Here is a summary of the laws as at 13 August 2021.

In NSW, lockdown restrictions are announced as Public Health Announcements by the NSW Health and Medical Research Minister.  These Orders amend the NSW Public Health Act 2010.  Public health orders relating to Delta outbreak restrictions are published in the NSW Government Gazette. The current Public Health Order replaces all previous orders.

The Public Heath Order includes directions in Clause 17 for all residents in NSW to wear a mask in certain places such as indoor areas of non-residential premisies, public transport waiting areas etc. The general directions about face coverings in Clause 17 includes 17(1)(i), which further requires residents in ‘declared areas’ (ie under Part 4A, Division 2) to wear a mask when in an outdoor area, unless that outdoor area forms part of residential premises.  Relevantly, Clause 17(3)(b) then provides an exemption to allow a person to remove their face mask (including when you are outdoors in a declared area) when you are doing strenuous outdoor physical exercise except in an indoor gym class or dance class.  

Note: Clause 24DA of this Public Health Order declares certain local government areas that are subject to additional restrictions.  These local government areas are specifically named and are considered by the press as ‘hard’ lockdown areas.  These “declared areas” are subject to additional restrictions such as exercise within 5km residence (Part 4A, Division 2, Clause 24EC).