On whose authority

TAFKAS is suffering from Wu-Flu-Fatigue and has been avoiding much of the news and media.  But taking a moment, he just popped on the the Sydney Morning Herald website.

Sub headline was this:

Prime Minister Scott Morrison has announced that all non-urgent elective surgery will be suspended “until further notice” from midnight on March 26, due to the coronavirus.

and upon clicking the link, it said this:

Scott Morrison has banned all overseas travel, food courts, real estate auctions and inspections and says extended family gatherings must stop.

TAFKAS does not want to get into a debate about the current measures being undertaken, but on whose authority and which powers does the Prime Minister make such declarations?

The Commonwealth does not operate a single hospital, so how can he declare surgeries to stop.  The Commonwealth can stop air planes coming in and out, but until that point, how does it plan to ban all overseas travel.

And to stop extended family gatherings.  Does the Commonwealth plan to deploy the Gillian Triggs human rights inspectors to each house to check on this.

If these things must stop, then there are proper means to have them stopped; through the state governments.  The Constitution of Australian has not yet been suspended.

The Prime Minister is not the king or the supreme leader.  We have not yet surrendered all our liberties and rights.

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27 Responses to On whose authority

  1. stackja

    The Wuhan virus doesn’t respect states borders.

  2. Old School Conservative

    My guess he is speaking as head of the National Cabinet which includes States.

  3. FelixKruell

    It would be useful to have an article on what powers the States and the Commonwealth have in these circumstances (and which powers they do not have).

  4. Botswana O'Hooligan

    They probably don’t have the power to do whatever it is they dream up minute by minute for the blokes who drafted our constitution probably ensured that without knowing we would have political ratbags aplenty down the track. The problem is one of decision for many people make a decision and fail to change that decision when they find it was the wrong one. If all or many of these decisions they are making are wrong, will they admit that they stuffed up, say sorry, rectify the problem and move on, or will they lie and bullshit and carry on as normal?

  5. Rafe Champion

    Yes Felix and that is like the debate about conscription, best conducted when there is not a war on! Not an argument against it of course.

    I thought Paul Kelly or at least his sub editor was drawing a long bow when he put up the byline for his weekend leader “Whatever it takes” or words to that effect.

  6. Steve

    If you’d watched the Prime Minister’s press conference last night you would have heard him make plain that these were nationally coordinated measures implemented by the states. You would also have noticed the line of questioning from some journalists that was borderline sedition (in particular “Andrew” who I assume was Probyn of the ABC).

  7. Suburban Boy

    The Commonwealth has some powers (more than you might imagine, actually, thanks to its ability to legislate for “quarantine” under section 51 of the Constitution), while the States have others.

    The Commonwealth and the States (and Territory chief ministers) co-ordinate their responses to Covid-19 through an inter-governmental committee dubbed the “National Cabinet” but the formal exercise of legal powers is made by each government on its own authority.

    So it is just journalistic shorthand to say that the PM “has banned” certain activities – the banning is formally made mainly by State and Territory governments, with international travel a particular responsibility of the Commonwealth. The PM just gets to announce it to the nation.

  8. Just Interested

    By and large, it is lazy shorthand.

    Scotty from marketing announced a lot of these things following the not constitutionally existing National Cabinet.

    This is to give effect to this policy, announced during last night’s televised press conference:

    But our goal is to get through this together and by following commonsense rules and doing the right thing,
    that’s how we slow the spread of this virus, and that’s how we save lives. It also means that not all states,
    I want to stress, are in the same position. Some states, particularly in New South Wales and Victoria, are
    far more advanced on the progression of this virus than other states and territories. But tonight, despite
    the variations that do exist, there is a strong will for states and territories to seek to move together,
    wherever they possibly can, to ensure a consistency of application of the various rules and arrangements
    that we’re putting in place across the country.

    Rest assured, the States will be doing most of this (in fact, they want to, going from news reports).

    They run the hospitals and will do the business on elective surgery.

    On extended family gatherings, the States will do that to.

    As Item 3 of Part 2.16 of Schedule 2 to the NSW COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 says

    71A Arrest of persons who contravene public health order relating to COVID-19
    pandemic

    (1) A police officer may arrest a person if the police officer suspects on reasonable
    grounds that the person is contravening a public health order relating to the
    COVID-19 pandemic.
    (2) On being arrested, the person may be returned to—
    (a) the person’s home or usual place of residence, or(b) the place specified in the public health order that the person has been
    ordered to reside, or
    (c) if the person is a public health detainee, the person’s place of detention.
    (3) Nothing in this section affects the operation of section 71, 72 or 73.
    (4) This section is repealed on the day that is 12 months after its commencement.

    Section 478 of the Biosecurity Act 2015 can mean the nice Mr Hunt can prevent people leaving Australia if a ‘human biosecurity emergency period’ has been declared (and it has).

    You can wonder why there is a need for national consistency (I don’t see it).

    But given there are genuinely constitutionally split responsibilities in relation to dealing with the little bug, I don’t see the real hang up about the ‘national cabinet’ idea in the particular circumstance.

    My only concern is that one of the terms of the Bushfires Royal Commission, which wonders whether ‘in circumstances of such a national declaration (of emergency), the Commonwealth should have clearer authority to take action is then used to change the laws (including perhaps constitutions) so the Feds can do whatever they want where there is an emergency.

    Just imagine what the lefties could do with such a power to deal with a ‘climate’ emergency.

  9. FFS! Can’t you come up with anything better? You’re as bad as the MSM.

  10. John A

    Just Interested #3375582, posted on March 25, 2020 at 2:34 pm

    Just imagine what the lefties could do with such a power to deal with a ‘climate’ emergency.

    Exactly. And there are greenie activists busily persuading local Councils that their residents want them to declare a Climate Emergency.

    I want to know which of the Emergency Services (Police, Fire, Ambulance or SES) will be mobilised to confront the “emergency.”

  11. duncanm

    My guess he is speaking as head of the National Cabinet which includes States.

    exactly.

    Scotty’s in a bit of a pickle because people don’t understand how our system of government works

    He gets lambasted for ‘not doing something’, but all the powers are vested in the states.

    So he treads the line ‘this is what the states will enforce’ sort of thing… but nobodies listening to that.

    The real issue I have is it is taking something like 24 hours for the states to enact their agreements on Public Health Orders. NSW still hasn’t enacted the orders which were agreed in last night’s National Cabinet.

  12. duncanm

    .. for something that’s growing at a rate of almost 20% per day (2^1/4), 24 hours is a criminal delay.

  13. nfw

    Given Uncle Joe Morrison’s desire to emulate Stalin and Mr Hitler and act like a totalitarian authoritarian thug, I await his command for the ADF to attack China and bring down the fascist government which wrought this existential threat upon the People’s Democratic Republic of Aussie Aussie Aussie. At the very least he will no doubt be suing the fascist Chinese in courts various and enacting legislation to sequester all Chinese assets in country to recover the economic losses endured by the country. And of course all the “National Cabinet” (an illegal gathering if there were any and are they separated from each other?) members, other waste of space politicians (that’s all of them) and public servants wherever they be found will be taking pay cuts if not facing job losses such as the productive real revenue generating members of our society are, won’t they? I trust there are special stores fully stocked for such important members of our nation. Now where did they have that before?

  14. Bronson

    Just like that moron Kristina ‘look at moi’ Keneally blaming the federal government for NSW stuff up letting cruise ship passengers disembark with no screening in Sydney. As an ex premier of NSW she would/should know that the state is responsible for health matters but since she has never been elected into any of the positions of authority she has held and has stuffed up anything she has touched what else could you expect.

  15. Shy Ted

    About time he banned something worth banning like Rebel Wilson’ Pooch Perfect and those awful bamboo underwear ads, both of which seem to be on high rotation.

  16. The BigBlueCat

    Old School Conservative
    #3375545, posted on March 25, 2020 at 1:58 pm
    My guess he is speaking as head of the National Cabinet which includes States.

    Yes, of course he is. While he’s used language like “banned” he also says things like “should”, and has to rely on the states to enact public health policy and civil laws. TAFKAS should know this ….

  17. Cynic of Ayr

    Prime Minister Scott Morrison has announced that all non-urgent elective surgery will be suspended “until further notice” from midnight on March 26, due to the coronavirus.
    Ah. I would ask the Honorable PM, him being an expert in all matters medical, to define “all non-urgent elective surgery.”
    One would think this entails the window in time a patient may suddenly step into, should his/her “non-urgent” change to “urgent.”
    So, a patient with a condition is medically judged to suffer or die within, say, two months. Is this “non-urgent” or is it “urgent”? I guess it’s “non-urgent” until two hours before the two months runs out. Bit of a bummer if the medical judgement is a few hours out!
    What the freaking hell is Morrison doing fiddling and big noting himself about a matter that he has no part in, has no authority in, and absolutely zero expertise in!
    So, what if a patient is considered “urgent”? Is the surgery held up until Morrison himself gives the OK to go ahead, or not?
    Morrison has made the statement then passed the buck.
    Someone, obviously not Morrison, (the “decider”) has to decide if a patient will suffer or die, or not suffer or die, if the surgery is not carried out.
    Outside the door, a Lawyer will be waiting, bag in hand, advising the patient that he will sue the pants off the “decider” if the patient suffers or dies, because his/her condition was judged to be “non-urgent” but turned out to be “urgent”. For a small fee of course.
    Outside the next door, a Lawyer will be waiting, bag in hand, advising the patient that if he agrees to the elective surgery, and the Lawyer’s waiting client is then denied surgery, he will sue the pants off the “decider” and the patient. For a small fee of course.
    At the “deciders” home front door, a Lawyer will be waiting, bag in hand, advising the “decider”, that he, the Lawyer, will sue the pants off the “decider” if either the first or second patient suffers or dies. For a small fee of course.
    And, the Lawyers will all suggest that the Government pay for all the sueing and froing, because the patients all have no money.

  18. rafiki

    Felix

    Maybe the key provision in the Cth Constitution might be s 51(37), which permits a State parliament to refer powers otherwise exercisable by the State parliament to the Cth Parliament.

    This requires action by a all State parliaments for a national scheme. This may be a problem in the short term.

    There has been talk in the High Court about the Cth having a ‘nationhood’ power. The Cth might rely on it alone to pass the relevant laws, or to buy time to get the States to refer powers to the Cth under s b51(37).

    Maybe other powers could be used, such the external affairs power, the trade and commerce power, the corporations, and perhaps others.

  19. Gyro Cadiz

    Erm….

    1. Don’t believe the SMH (it being a lefty tabloid staffed with semi literate 20-something know-nothings from behind the goat cheese and smashed avocado curtain)
    2. He’s announcing on behalf of the National cabinet. (something the semi literate 20-something know-nothings of the aforementioned lefty tabloid have not even heard of yet and lack the intellect to understand even if they have)
    3. The semi literate 20-something know-nothings of the aforementioned lefty tabloid are apparently convinced that the Australian PM is and has the powers of an absolute monarch or (they doubtless hope) Josef Stalin.

  20. MACK

    Deaths from the virus: 8
    Suicides from closed businesses, mortgage foreclosures etc + Deaths from domestic violence due to lost jobs and closed businesses + Deaths from complications developing in people whose surgery has been deferred = quite a few more than 8.

    There are about 3000 suicides a year, and the recent government interventions could easily push that up by 5% (~150). Be very careful ScoMo and Josh.

    https://www.blackdoginstitute.org.au/clinical-resources/suicide-self-harm/facts-about-suicide-in-australia

  21. Rob MW

    TAFKAS does not want to get into a debate about the current measures being undertaken, but on whose authority and which powers does the Prime Minister make such declarations?

    Ho Flung-Dung ?

  22. Entropy

    National cabinet= COAG.

  23. Squirrel

    If specific legislative authority does not currently exist for the restrictions which have been announced, that authority will be granted very quickly (backdated if necessary) – by the state and territory legislatures.

    Whether it’s a Labor government with a Liberal/LNP opposition or vice versa, we are a long way from the point where legislatures are going to deny executive government the power to do the things they reckon they need to do to deal with the virus.

  24. Docket62

    The states have declared a ‘state of emergency’ which I believe confers certain powers. The only thing my memory serves me that is beyond this is martial Law and that simply will not be tolerated.

  25. Kneel

    “I want to know which of the Emergency Services (Police, Fire, Ambulance or SES) will be mobilised to confront the “emergency.””

    All of course.
    It’s an emergency, so SES.
    The planet is sick, so Ambulance.
    It’s also on fire, so firey’s too.
    Then we need to arrest the deniers for wrongthink, so plod gets a look in.
    And all yours for measly 100% income tax rate – a bargain really. We’ll subsidise the cost by borrowing more money in your name – and if that doesn’t work, we’ll just print more money.
    What could go wrong? I mean, before the next election.

  26. Driftforge

    Enough petulant blubbering about whether there is the authority required to do something. Clearly the authority exists; the orders are going out and being enforced. If you are serious about such matters, make your petition to Governor General. I suspect that in such an instance you would find that all authority in this matter is acting in concert, and that your petty complaints are given the consideration they deserve.

    Serious people are actually doing serious things for once. Not yet to the level required, but inexorably building towards that while still giving a modicum of time for people to adapt.

    Whether the right choices were made will be dithered over in the aftermath; suffice to say that nice time around, assuming we don’t end up with another 100 year gap, better informed choices will be made, in the context of a better informed populace.

    Asking whether this is constitutionally provided for is a category error – the authors of the constitution had the good sense not to forbid co-ordination of action – arguably the document was written to allow coordination of action for mutual defence.

    The last thing you want is for temporary coordination bodies like this to be constitutional – then you can’t back away from them when the time comes to return to ‘normal’. Furthermore, they would lack the flexibility necessary to be arranged such that they were fit for purpose.

    All we can work towards is a capable state, in capable hands, with the capacity to refrain in wisdom from acting in power; or, as is needed now, to in wisdom act in power.

    Or as much of that as is available to us.

  27. Docket62

    Enough petulant blubbering about whether there is the authority required to do something

    I’d say the only blubbering here is driftforge. You’d cough up your freedoms that easily?

    Serious people are actually doing serious things for once“. Such as who? The idiot Andrews wanting to go full idiot over and above what Morrison has declared? Please specify who these ‘serious’ people are and why you think they’re important in our lives

    In what is little more than a flu outbreak (and not even a particularly nasty one for anyone under 70) the entire world is closing, killing jobs, businesses and futures. The suicide rate alone subsequent to the fools actions will dwarf the CV numbers.

    But you think we should just let these people run over us with WHAT law. Under WHAT power can they arrest and detain.. Under who’s authority? I am ex Vic Police and Im telling you it does matter. I’m not saying the government doesn’t have the authority – I think it does. But the discussion is where the authority is derived from legally

    Freedom matters. Ask China

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