Business Owners: Are Mandates Legal?

With the state government mandating you to force your customers to wear face masks, check-in and prove their vaccination status, you are likely asking yourself “Is any of this legal?” Let’s unpack it for you.

The Law Is on Your Side

Forcing people to wear masks, check-in or show their vaccination status is illegal according to federal law, regardless of government directives. The government can not mandate you to break the law.

The Biosecurity Act 2015

The presumption under the Biosecurity Act 2015 is that an individual is healthy until proven sick.

The Biosecurity Act 2015 is federal legislation and supersedes all state law, and takes precedence even in a state of emergency.

  • It is illegal for you, employees, or the police to harass anyone for not wearing a face mask
  • It is illegal for you, employees, or the police to force anyone to wear a face mask
  • It is illegal for you, employees, or the police to harass anyone for not checking-in to your business
  • It is illegal for you, employees, or the police to force anyone to check-in to your business

Biosecurity Control Order

Under The Biosecurity Act 2015, in the absence of a Biosecurity Control Order, an individual cannot, among other things, be forced to:

  • Wear a mask
  • Social distance
  • Use contact tracing apps
  • Be isolated
  • Take a medical test
  • Take a vaccine

Biosecurity orders can only be issued to individuals by a Biosecurity Officer, not the police.

The Commonwealth Privacy Act 1988

Under the Commonwealth Privacy Act 1988, Section 94H, you commit an offence if you:

  • Require a person to download a COVID check-in app
  • Require a person to operate a COVID check-in app
  • Require a person to consent to uploading COVID check-in data to the National COVIDSafe Data Store
  • Refuse entry to a person where the premises are otherwise open to the public

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

The value of a penalty unit is prescribed by the Crimes Act 1914 and is currently $222 for offences committed on or after 1 July 2020.

The Australian Constitution

The powers of the Commonwealth with respect to legislating on medical issues is one of the items in section 51 of the Commonwealth of Australia Constitution Act.

(xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;

In the written judgement of Webb J. he stated:

I think the electors would have taken the proposed law to emphasize, in the use of the words “any form,” that legislation for the provision of benefits or services of the kind referred to could not authorize compulsory service of any kind, at least in the provision of medical or dental services, either independently or as incidental to pharmaceutical or other benefits, and that compulsion, to any extent or of any nature, whether legal, by the imposition of penalties, or practical, by any other means, direct or indirect, could not be authorized. To require a person to do something which he may lawfully decline to do but only at the sacrifice of the whole or a substantial part of the means of his livelihood would, I think, be to subject him to practical compulsion amounting to conscription in the case of services required by Parliament to be rendered to the people. If Parliament cannot lawfully do this directly by legal means it cannot lawfully do it indirectly by creating a situation, as distinct from merely taking advantage of one, in which the individual is left no real choice but compliance.”

Forcing customers to mask up in order to enter your business, or to do business with you, is a form of civil conscription.

What about the Fines?

Make sure to follow any directives to display any posters encouraging the public to follow state directives, but do not enforce them or you will be in breach of the aforementioned Acts. If you were to be fined and the matter were to go to court, you can not lose by following the Commonwealth of Australia Constitution Act, the Biosecurity Act 2015, the Commonwealth Privacy Act 1988, the Disability Discrimination Act 1992 and the Charter of Human Rights and Responsibilities Act 2006.

It is illegal for the police to threaten you and your business with fines for choosing not to break the law. If you are enforcing government directives regarding masks, check-ins, vaccinations and so on, you will be doing so illegally and exposing you and your business to severe legal penalties.