Interstate Compulsory Procurements - HLD Law

Interstate Compulsory Procurements

Interstate Compulsory Procurements


The Premier of South Australia, Steven Marshall, has accused NSW and Victoria of commandeering Rapid Antigen Tests bound for South Australia. We are not yet sure if that is what has happened, but it raises the question of can they commander them in the first place raising the intriguing issue of compulsory procurement.

It has been reported that RAT tests that were coming to South Australia having been bought by South Australian businesses. Considering that the South Australian Health Service requires them to maintain its staff as all employees need to be tested, without these tests, our Health Service may not be able to function.

Now while the NSW and Victorian Governments deny the allegation and Premier Marshall decided to contact the ACCC to uncover the legality of these actions, it is worth examining, before the issue is resolved, whether these governments have a legal basis to compulsory acquire goods bound for South Australia.

From a Federal point of view the Biosecurity Act 2015 (Cth), states that goods can be “forfeited to the Commonwealth if: (i) the Director of Biosecurity notifies, in writing, the owner of the goods that the goods may be collected.” The power exists for the Federal Government to procure goods headed to the states so long as they are given the heads beforehand.

However, it is a different issue if the NSW and Victorian Governments compulsorily acquire goods. In Victoria, under the Public Health and Wellbeing Act 2008, the State Government can forfeit a seized thing if the relevant Secretary or Council states that “it is necessary to retain the thing to prevent a risk to public health.” This being a definition which could seemingly apply to anything it seems they are well within their rights to compulsory acquire RATs.

These laws are pretty general in their application, it raises the question of whether other essential goods heading to Adelaide can be compulsorily acquired as well. Say a crucial new batch of vaccines are headed to us when a new extra deadly strain of COVID-19 is ravaging our population. They must come through Melbourne and Sydney, and what would they do if they desperately needed the vaccines as soon as possible? They would take it, and by the current laws, it would be legal for them to do it.

This is a serious problem, for the state of South Australia and raises the question – how do we guarantee our supply and safeguard our people. We don’t use our port anymore. Many cargo ships travel down Western Australia, go right past Port Adelaide and continue to Melbourne or Sydney where goods bound for SA can be compulsory acquired on the docks in Sydney or Melbourne. Perhaps it is time to reconsider the expansion of our own port so that RATs can arrive direct into SA? We might not have ever considered it possible that another state would cut us off putting SA at risk… desperate times call for desperate measures.

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