QLD Jurisdiction of mask wearing mandate

[Question]

Hello. is there any standing or can this be challenged where "mandatory mask wearing" in QLD has been ordered under the Public Health Act 2005 where this can only be done at the federal level with In order for the Government or a business to mandate masks (section 88), PCR tests (section 90) or vaccinations (section 92), they need to impose on you a ‘human bio-security control order (HBCO)’ (section 60).

https://www.legislation.gov.au/Details/C2020C00127

BIOSECURITY ACT 2015 - SECT 60 Imposing a human biosecurity control order on an individual

Since one is federal and one is state law then my interpretation of Section 109 of the Constitution of Australia declares that valid federal laws override ("shall prevail") inconsistent State laws.


Cheers.

 

[Docupedia]

Read section 8 of the Biosecurity Act.

I think you’ll also find that the two acts aren’t necessarily inconsistent with each other. And where they overlap they are likely considered complementary rather than adversarial.

While I’m not inherently familiar with the Biosecurity Act, like a lot of federal legislation you may find it is primarily concerned with entry/exit from Australia as a whole and possibly interstate connections; and not so much as to the interior workings of a state. While it may have the power to do so, the federal government tends not to override the states unless they feel there is an overarching need or it crosses into more than just the single state‘s affairs.

 

[Tim W]

Hello. is there any standing or can this be challenged where "mandatory mask wearing" in QLD has been ordered under the Public Health Act 2005 where this can only be done at the federal level with In order for the Government or a business to mandate masks (section 88), PCR tests (section 90) or vaccinations (section 92), they need to impose on you a ‘human bio-security control order (HBCO)’ (section 60).

No.

 

[Scruff]

BIOSECURITY ACT 2015 - SECT 8

Concurrent operation of State and Territory laws

(1) This Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act (except as referred to in subsection (2)).

(2) Subsection (1) is subject to the following provisions:
........(a) section 172 (prohibited goods);
........(b) section 265 (ballast water);
........(c) subsections 445(4), 446(4), 477(5) and 478(4) (biosecurity emergencies and human biosecurity emergencies).

The exclusions in subsection (2) all relate to the Commonwealth overriding State laws, not the other way around. Since the Commonwealth hasn't made any such orders, subsection (2) is not relevant in the circumstances.

Nothing the State has done is inconsistent with the sections you mention (s88, s90 and s92).

... where this can only be done at the federal level ...

Clearly, that is entirely false and as such, the Constitution Act doesn't come into play here at all.