Commonwealth human biosecurity powers


Howard Maclean, Law and Bills Digest

Key issue

The human biosecurity emergency (HBE) powers under the Biosecurity Act 2015 (Cth) provided the legal basis for many of the Commonwealth’s emergency COVID-19 pandemic measures that were in force for over 2 years between 18 March 2020 and 17 April 2022.

The Senate Select Committee on COVID-19 recommended that a Royal Commission be established to examine Australia’s response to the COVID-19 pandemic to inform future preparedness. The Senate Standing Committee for the Scrutiny of Delegated Legislation has also separately recommended amendments to the human biosecurity emergency powers.

This article provides an overview of some of the matters raised with the operation of the HBE powers, which are likely to be considered as part of any broader legislative review of federal pandemic arrangements.

History of Australia’s quarantine framework

The Australian Constitution includes a power for the Commonwealth Parliament to make laws with respect to ‘quarantine’ in section 51(ix). The High Court has never characterised the extent of the quarantine power, making its exact limits and nature uncertain. The Commonwealth’s quarantine laws have, however, always included powers to take extraordinary emergency measures to prevent outbreaks of disease, used for the first time in 1913, when the Commonwealth quarantined Sydney in response to a smallpox outbreak.

The states and self-governing territories each have their own legislative frameworks providing for similarly broad emergency powers in response to outbreaks of disease and have had such frameworks since before federation. The line between the Commonwealth’s power to legislate with respect to quarantine and the states’ power to legislate with respect to public health is not clear, but it is likely that there are at least some elements of pandemic response that are outside the Commonwealth’s constitutional capabilities, requiring intergovernmental cooperation.

After both the 1913 smallpox epidemic, and the Spanish flu pandemic, efforts were made to create a durable pandemic management framework that would prevent a break down in inter‑governmental coordination. In both cases, these efforts failed. The November 1913 conference between Commonwealth and state chief medical officers recommended that in the future, measures be:

… agreed on by the parties in common, not during the operation of restraint and restrictions, and political or other influences, but in circumstances which all the authorities concerned are in the same position with respect to the health requirements and the subjects considered.

The 1913 conference preceded the November 1918 conference that attempted to coordinate Australia’s response to the Spanish flu pandemic, and the National Cabinet framework that was established in response to the COVID-19 pandemic.

Following the Spanish flu pandemic, the Commonwealth created the Department of Health to coordinate future pandemic management, and expanded Commonwealth legislative provisions related to pandemic management through the passage of amendments to the then Quarantine Act 1908. Over the following century, however, the Department of Health’s focus shifted away from pandemic management, and the Commonwealth’s quarantine framework became progressively more focused on plant and animal biosecurity rather than infectious human diseases. 

The 1997 Nairn Review noted:

… the strong quarantine focus on human health in the early part of the twentieth century is now overshadowed by the focus on animals and plants of agricultural importance … [p. 30]

In 2008 the Rudd Government reviewed the Australian biosecurity and quarantine framework in response to perceived failures of quarantine that lead to the 2007 equine influenza outbreak. The Beale Review recommended that the Quarantine Act 1908 be completely replaced by a new Biosecurity Act, which eventually became the Biosecurity Act 2015 (Biosecurity Act).

This history highlights the challenges of creating and maintaining a fit for purpose, capable national pandemic management framework following a pandemic as a framework may go decades or generations relatively unchanged before its full capacity is needed again.

The human biosecurity emergency powers

To enable swift responses, the Commonwealth and each of the states have always had legislation delegating a broad power to the Executive Government to respond to outbreaks of infectious disease without requiring further scrutiny from parliaments. Currently, at a Commonwealth level, these are provided for in the Biosecurity Act.

Chapter 8 of the Biosecurity Act provides the legislative framework for the human biosecurity powers. Relevant powers under the Biosecurity Act can only be used in relation to ‘listed human diseases’.The Minister for Health may advise the Governor-General to declare a human biosecurity emergency if they are satisfied that a listed human disease is ‘posing a severe and immediate threat or is causing harm on a nationally significant scale’ and that the declaration is necessary to address the situation.

Once a human biosecurity emergency is declared, the minister may make human biosecurity requirements and directions that they are satisfied are necessary and proportionate to address the emergency. HBE requirements and directions override any other Australian law and cannot be disallowed by Parliament.

An HBE declaration can only last for a maximum of 3 months but can be extended an indefinite number of times provided the Health Minister remains satisfied it is still necessary to address the human biosecurity emergency (which is what happened during the COVID-19 pandemic). Failure to comply with an HBE direction or requirement is a criminal offence, punishable by up to 5 years imprisonment or a $66,600 fine, or both.

There were challenges to the validity of exercises of the HBE powers over the course of the COVID-19 pandemic, notably Newman v Minister for Health and Aged Care, which concerned the validity of the India Travel Pause Determination and LibertyWorks Inc v Commonwealth of Australia, which concerned the validity of the Overseas Travel Ban Determination. In both cases, the Federal Court reaffirmed the validity of the determinations, dismissing the challenges. To date, no judicial challenge to the validity an exercise of the HBE powers has been successful.

Issues regarding the operation of the HBE powers

More broadly, pandemics and epidemics present challenges, including:

  • an effective public health response to outbreaks or incursions of serious diseases frequently requires measures to be taken swiftly
  • such measures often involve the abrogation or suspension of regular laws, and the limitation of common law and human rights of persons
  • such outbreaks are irregular and may be very infrequent
  • decision-makers operate in environments of high uncertainty, particularly regarding novel diseases of which the epidemiology (rate of reproduction, vectors of transmission, mortality rate, chronic conditions resulting) is not yet known
  • given the varied epidemiology and seriousness of potential outbreaks, the scope of powers needed for an effective public health response cannot be known before time
  • the existence of the outbreak may constrain the ability of Parliament to meet to review, extend, or alter the powers granted to the Executive, or grant such powers if a legislative scheme does not already exist.
  • the consequences of an inadequate or slow public health response can be catastrophic to human life, economic, social and cultural wellbeing. The consequences of an excessive public health response can be substantial in financial, social, and human rights terms.

These challenges reflect the rationale as to why the HBE powers confer such broad powers on the minister to respond to an outbreak, including to modify and override existing Acts of Parliament. Professor George Williams described the HBE powers as ‘one of the most remarkable provisions on the statute book’.

During the pandemic 4 key issues emerged surrounding the HBE powers:

  • the fact that HBE declarations, extensions, and requirements cannot be disallowed by Parliament (ss 475(2), ss 476(2), ss 477(2))
  • the fact that HBE requirements and directions can override any Australian law, a provision known as a ‘Henry VIII clause’, including in ways that abrogate common law rights (ss 477(5), ss 478(4)).
  • the capacity of the minister to apply the HBE powers to policy areas not directly related to infection control via the broad constitutional basis of the Biosecurity Act
  • the lack of clarity about how the HBE powers interreact with state public health frameworks.

Reviews and policy proposals for reform

There have been several proposals for reforms of the HBE framework:

  • In its final report the Senate Select Committee on COVID-19 recommended that a ‘Royal Commission be established to examine Australia’s response to the COVID-19 pandemic to inform preparedness for future COVID-19 waves and future pandemics’ (Recommendation 17).
  • The Senate Select Committee on COVID-19 also recommended the establishment of a Australian Centre for Disease Control (Recommendation 1). Labor promised to action this recommendation as an election commitment, to ‘ensure ongoing pandemic preparedness’ and ‘lead the federal response to future infectious disease outbreaks’ as did the Australian Greens.
  • The Senate Standing Committee for the Scrutiny of Delegated Legislation recommended that the declaration and extension of a Human Biosecurity Emergency declaration, and the making and varying of HBE requirements, be subject to parliamentary disallowance. Amendments to that effect were moved on behalf of the committee in the Senate to the Biosecurity Amendment (Enhanced Risk Management) Bill 2021, which lapsed at the end of the 46th Parliament.
  • There has not been a review of the human biosecurity emergency powers generally during the pandemic. Elements of the human biosecurity emergency framework were considered by the NSW Special Commission of Inquiry and the Inspector-General of Biosecurity in their separate reviews into the Ruby Princess incident, but these did not focus on the HBE powers.

In responding to the COVID-19 pandemic, Australian federal and state governments were required to make urgent decisions, while developing policy in an ever-evolving situation. Future reviews of the governments’ responses are likely to consider if these powers were appropriately configured to meet these challenges – if it had the correct decision-makers, processes, limits, and systems of parliamentary oversight – with an eye to the next pandemic.  

 

Further reading

Senate Select Committee on COVID-19, Final Report (Canberra: The Senate, April 2022).

Howard Maclean and Karen Elphick, ‘COVID-19 Legislative Response- Human Biosecurity Emergency Declaration Explainer’, FlagPost (blog), Parliamentary Library, 19 March 2020 (updated 27 March 2020).

Howard Maclean, ‘Biosecurity Amendment (Enhanced Risk Management) Bill 2021’ Bills Digest, 30, 2021–22, (Canberra: Parliamentary Library, 2021).

Howard Maclean ‘In 1913 the Commonwealth Quarantined Sydney for 145 days‘, FlagPost (blog), Parliamentary Library, 27 July 2021.

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