As Australia is on the cusp of opening its international borders following the response to the COVID-19 pandemic, there is growing concern that childcare facilities will be the source of COVID-19 community transmission and outbreaks. This will place those children at risk and the wider community.
The Australian Government decided to implement the WHO COVID-19 Technical Advisory Group recommendations for childcare, relying on the external affairs power, the corporation's administration, the territory's power, and the implied nationhood power. TheCommonwealth Parliament passes the Government’s COVID-19 Childcare Act 2021 (Cth) in the December sittings of Parliament. It commences on 6 December 2021 and includes the following provisions:
COVID-19 Childcare Act 2021 (Cth)
The objects of this Bill are:
(a) for the Australian government to provide appropriate protection for young children in our community in response to the imminent opening of Australia’s international borders.
(b) to implement the WHO COVID-19 Technical Advisory Group’s recommendations for childcare.
All Childcare Facilities must provide to the Department of Social Services by 1 January 2022 a risk mitigation strategy that includes:
(a) requirements for all workers to be double-vaccinated.
(b) requirements for all workers to always wear masks indoors and outdoors when looking after children.
(c) rapid testing facilities within 2 hours if children or staff with COVID-19 symptoms attend the facility.
(d) prominent signage throughout the facility about the importance of vaccination, wearing masks, and hygiene practices, including handwashing and isolating.
(e) notification systems for all legal guardians of children if any positive COVID-19 test is returned for a person who has been on the Childcare Facility premises.
Penalty for failure to provide risk mitigation strategy: maximum $50,000 fine.
The Department of Social Services will review all risk mitigation strategies every six months to ensure any new evidence informs them and that any measures with no effect or harmful effect are discontinued and direct any Childcare Facility to update its strategies as required following this review.
Penalty for failure to update risk mitigation strategy: maximum $50,000 fine.
The New South Wales Parliament also responds to the concerns about public misinformation about vaccinations, particularly the future possibility of vaccinating young children. It enacts the COVID-19 (Public Health Information) Act 2021 (NSW). That Act includes the following provision:
In New South Wales, “Kids Inc.” owns many childcare centers. The CEO of Kids Inc. is a well-known advocate against vaccinations, including COVID-19 vaccinations, because the potential health risks of the current vaccines outweigh the health risks of contracting COVID-19. He has been particularly vocal against the extension of vaccines to children below the age of 16 years. The CEO asks you of Kids Inc. whether the many childcare centers that it runs in New South Wales must comply with the Commonwealth requirement of including prominent signage throughout their facilities about the importance of vaccination and with the New South Wales prohibition on placing information advocating against vaccinations, particularly for children.
Advise the CEO of Kids Inc. on the following two issues:
(1) Whether and to what extent is s 10 of the COVID-19 (Public Health Information) Act 2021 (NSW) inconsistent with ss 4 and 6 of the COVID-19 Childcare Act 2021 (Cth) under s 109 of the Constitution?
(2) Whether s 10 of the COVID-19 (Public Health Information) Act 2021 (NSW) or s 4(d) of the COVID-19 Childcare Act 2021 (Cth) breaches the implied freedom of political communication?
Section 109 categorically states that if the law formulated by the state is inconsistent with the law developed by the Commonwealth, then the Commonwealth law shall prevail over the state law. And the former law to the extent of inconsistency, would be valid. In the landmark case of Carter v. Egg and Egg Pulp Marketing Board (Vic) the court of law held that the applicability of Section 109 would be in cases where in both the State and Commonwealth laws are valid. Moreover,inWenn v AG of Victoria,it was stated that the law would not be obliterated in its entirety, and it is only to the extent of the inconsistency.
In the present scenario," Section 10 of the COVID-19 (Public Health Information) Act 2021 (NSW)" makes it an offence when someone is spreading misleading public health information and material in the childcare facilities. And this includes advocating the information against vaccines. On the other hand, Section 4 and 6 of the COVID-19 Childcare Act 2021 discusses the risk mitigation strategy such as compulsory vaccines to workers, wearing masks, testing, etc. The government reviewed the mitigation strategy and imposeda penalty on non-compliance.
It seems that there is no inconsistency between the two impugned legislation. This is because Section 10 primarily deals with misleading public health information,and Section 4 and 6 are all about the Commonwealth's risk mitigation strategy. Here, the purpose, aims and objectives are different. For instance, the High Court clarified in the case of Jemena Asset Management (3) v Coinvestthat merely impairing, altering, or detracting from the requisite federal law shall not give rise to an inconsistency. There must be a fundamental conflict between both the laws, wherein the alteration or detraction from the law formulated by Commonwealth must be significant and not trivial.
Henceforth, Section 10, i.e., state law, is not inconsistent with Section 4 and 6 of the COVID-19 Childcare Act 2021 following Section 109 of the Constitution.
In 1992, the High Court formulated the principle of the implied freedom of political communication in two separate cases, i.e., "National News v. Wills" and "Australian Capital Television v. Cth". The implied freedom of political communication is not a personal right available to individuals. To determine whether an impugned law breaches upon the implied freedom, there questions must be answered. First, does the law burden freedom in its operation, terms, and practical effect. Second, if so, the requisite purpose of the law and the means to achieve the same purpose are legitimate according to the constitutional system of representative government. Third, in the case wherein the answer to question 2 is yes, the question would be, is the law reasonable enough to be adapted. This question is primarily based on the proportionality test. In case wherein the answer to the first question is answered yes and the second question is answered no, then the impugned law shall be held invalid. These questions have been primarily determined from the judgements of Lange v Australian Broadcasting Corporationand Coleman v Power:
It needs to be determined as to whether "Section 10 of the COVID-19 (Public Health Information) Act 2021 (NSW)" or "S 4(d) of the COVID-19 Childcare Act 2021 (Cth)"burdens the communications about the government or any other political matters.
Section 4(d) imposes prominent signage in the facility regarding the importance of vaccination, wearing masks, and hygiene practices, including handwashing and isolating. On the other hand, Section 10 makes it an offence to spread misleading public health information and material in childcare facilities,including advocating the information against vaccines.
Section 4(d) of the law described above does not burden the communications about the government or any other political matters. This is because it is merely a law that aims to propagate important information about public health in the given circumstances. For instance, in the case of "Clubb v. Edwards" communications concerning the women's reproductive choices with the main aim of women entering the abortion clinics did not fall under the ambit of political communication.
Section 10 makes advocating against vaccines an offence. This might potentially burden the communications about the government or any other political matters. However, it is essential to curb misinformation on public health. But completely prohibiting the voice against vaccines restricts the content of political communication.
The legitimate end question is to determine whether the purpose of Section 10 and Section 4 (d) is legitimate with the constitutional system of representative government. Section 4(d) is legitimate with the constitutional system of representative government because it displays the importance of wearing masks, hand washing, vaccination etc. which are matters of concern on public health of the representative government. On the other hand, Section 10 is not following the idea of representative government since it curbs advocating the information against vaccines that the benefits of taking vaccines might not be compatible with the risk associated with it.
Lastly, by applying a three-part proportionality test, i.e., suitability, necessity and adequacy in balance, Section 4(d) is valid since there is propagation about public health which is necessary. When it comes to Section 10, there is vagueness and uncertainty because there is a pre-existing law that promotes the importance of vaccines in Section 4(d). For instance, in the case of Brown v. Tasmania,[ the court stated that vagueness and uncertainty of the impugned provisions are unnecessary since there is already an existing Tasmanian law that achieves the same purpose with the lesser burden.
Henceforth, Section 4(d) shall be valid, and Section 10 would be invalid following the implied freedom of political communication principle.