Replies

What happened in this case, primarily comes down to Section 475 of the Biosecurity Act (2013) - that section of law - which has never been used - and still hasn't been used even now - is intended to deal with an extremely serious medical disaster - we're not talking about something like COVID has turned out to be, we're talking about something like ebola being widely loose in Australia with thousands dying every single day. If that section was ever used, the Minister for Health - not the Prime Minister, not the Governor-General, gets powers that are basically almost unlimited to deal with that very serious crisis.

In March 2020, early in the Pandemic, with the hysterical reporting that was appearing in the world's media, nobody was sure how bad COVID might actually be. So the question was raised as to whether 475 should be put into effect. The Prime Minister took the position that if 475 was put into effect, he, as Prime Minister should be the one with the power to administer it if needed. Using Section 64 of the Constitution, he asked the Governor-General to appoint him as a second Minister for Health - it is unusual for a ministry to be held by more than one person but it is constitutional and it isn't unprecedented.

The intent behind this was twofold - one, it would allow the Prime Minister to overrule the Minister for Health, Greg Hunt, if he felt Hunt was going too far if 475 was invoked. It put ultimate power in the hands of the Prime Minister. It also meant that if Hunt became incapacitated, there was a continuity of government plan in place - the Prime Minister could immediately take over.

The Prime Minister later decided to have himself appointed to other critical ministries to ensure the same continuity of government issue. He had no intention of exercising any of these powers unless a Minister became incapacitated.

None of this was secret - none of it was classified in any way. It just wasn't publically announced. Maybe it should have been but, frankly, it would have been more likely to cause panic than anything else. And the powers in those critical ministries were never actually used, which does support the idea that he only intended them to be used in an emergency.

The one odd ball in this case, where it can be argued there was no real need for him to have himself appointed as a second Minister for Industry, Science and Resources - there really are no critical functions of that Ministry that require this level of contingency planning (a new Minister could be appointed in a matter of hours under more traditional approaches). And that is the only Ministry where he actually used the powers - he refused permission for some natural gas exploration to take place. The decision was certainly legal and constitutional - but that one can certainly be reasonably questioned as to why it needed to be done in an unusual way.

Sorry - I've explained one thing badly.

Section 475 and Section 476 were in fact used during COVID to set up a situation where the Minister for Health's Biosecurity powers under Section 477, 478, and 479 were used - those are the sections that basically turn the Minister for Health into, more or less, a dictator (they contain language like "During a human biosecurity emergency period, the Health Minister may give any direction, to any person, that the Health Minister is satisfied is necessary".) Those sections were not invoked.

Section 474 states that the powers can only be exercised by a Minister of Heath - nobody else - which is why the Prime Minister felt it was necessary that he be designated as Minister of Health.

I should have looked up the precise sections before posting, rather than going on memory but the media has been talking about 475 as if it was the primary relevant section, and I, wrongly, assumed they were accurately citing.