Currency of version: Current version for 24 March 2021 to date (accessed 26 June 2021 at 18:59)

Division 4 Public health orders for Category 4 and 5 conditions

62 Making of public health orders relating to person with Category 4 or 5 condition or contact order condition (cf 1991 Act, s 23)

(1) An authorised medical practitioner may make a public health order in respect of a person if satisfied, on reasonable grounds, that—

  • (a) the person has a Category 4 or 5 condition and because of the way the person behaves may, as a consequence of that condition, be a risk to public health, or
  • (b) the person—
    • (i) has been exposed to a contact order condition, and
    • (ii) is at risk of developing the contact order condition, and
    • (iii) because of the way the person behaves, may be a risk to public health.
  • (2) A public health order—
    • (a) must be in writing, and
    • (b) must name the person subject to the order, and
    • (c) must state the grounds on which it is made, and
    • (d) must state that, unless sooner revoked, it expires—
      • (i) if the public health order is made in respect of a person referred to in subsection (1)(b)—at the end of the period specified opposite the relevant condition in Schedule 1A, or
      • (ii) in any other case—at the end of a specified period (not exceeding 28 days), after it is served on the person subject to the order.

Note—

An order based on a Category 5 condition expires after 3 days unless an application is made for its confirmation (see section 63(2)).

High Court Decision:

Any law that purports to make it mandatory for a person to submit to a COVID-19 vaccination is invalid.
In 1945, the then Chief Justice Latham held that quarantine laws “may be regarded in most, if not all, of its aspects as a form of public health legislation”.

The Commonwealth has the power under section 51(ix) of the Constitution to make laws with respect to ‘quarantine’. This is a power granted to the Commonwealth. Not the States.

At [257] of the decision, Latham CJ held that the Commonwealth “could not pass a law requiring citizens of the States… to submit to vaccination or immunization”.

So there are several important things that flow from this High Court decision.

  1. Vaccinations and immunizations are matters that fall within the category of ‘quarantine’.
  2. Only the Commonwealth has the power to make laws with respect to ‘quarantine’ under section 51(ix) of the Constitution.
  3. The Commonwealth is prohibited from passing laws requiring citizens to submit to vaccination or immunization (which are quarantine matters).
  4. The States have no power to make laws with respect to quarantine, including matters dealing with vaccinations and immunizations (as Latham CJ held that these things are ‘quarantine’ matters).
  5. The States are unable to do something that the Commonwealth is prohibited from doing under the exercise of the quarantine power.
  6. Therefore the States cannot pass any law that requires citizens to submit to vaccination or immunization.
  7. Part 3B of the Public Health (COVID-19 Air Transportation Quarantine) Order (No 2) (NSW) 2021 is invalid.

All workers who have been identified under the ‘NSW Airport and Quarantine Workers’ Vaccination Program’ should consider the above before making any decision as to whether to have a COVID-19 vaccination.