Posted 19/03/2020 by Howard Maclean & Karen Elphick
This FlagPost was first published on 19 March 2020 and has been updated on 27 March 2020 to reflect further Government measures in response to the COVID-19 pandemic.
On 18 March 2020 in response to the COVID-19 outbreak in Australia, the Governor-General declared that a human biosecurity emergency exists. The declaration gives the Minister for Health expansive powers to issue directions and set requirements in order to combat the outbreak. This is the first time these powers under the Biosecurity Act have been used.
The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 was made under section 475 of the Biosecurity Act 2015 (Cth). The declaration states:
Human coronavirus with pandemic potential is an infectious disease:
(a) that has entered Australian territory; and
(b) that is fatal in some cases; and
(c) that there was no vaccine against, or antiviral treatment for, immediately before the commencement of this
instrument; and
(d) that is posing a severe and immediate threat to human health on a nationally significant scale.
The declaration is in force from 18 March 2020 for three months; in the Biosecurity Act this is called the ‘human biosecurity emergency period’.
Under what circumstances is a human biosecurity emergency declared?
Relevant powers under the Biosecurity Act can be engaged for use in relation to ‘listed human diseases’. The Minister for Health may advise the Governor-General to declare a human biosecurity emergency if satisfied that:
- a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale (paragraph 475(1)(a)) and
- the declaration is necessary to prevent or control the entry of the listed human disease into Australia or the emergence, establishment or spread of the listed human disease in Australia (paragraph 475(1)(b)).
On 21 January 2020, ‘human coronavirus with pandemic potential’ was added to the Biosecurity (Listed Human Diseases) Determination 2016 as a listed human disease. The World Health Organization (WHO) has named the disease COVID-19.
Human biosecurity emergency powers
During the human biosecurity emergency period, the Health Minister may:
that the Minister considers is necessary to:
- prevent or control the entry to, emergence, establishment, or spread of COVID-19 in Australia
- prevent or control the spread of COVID-19 to another country or
- implement a WHO Recommendation under the International Health Regulations.
The Minister must also be satisfied that the direction/requirement is:
- likely to be effective in, or contribute to, achieving the purpose for which it is to be given
- appropriate and adapted to achieve the purpose for which it is to be given
- no more restrictive or intrusive than is required in the circumstances
- if a requirement, that the manner in which the requirement is to be applied is no more restrictive or intrusive than required in the circumstances and
- if the direction/requirement is to apply during a period—that period is only as long as is necessary.
A requirement is a non-disallowable legislative instrument and must be lodged for registration on the Federal Register of Legislation. Directions are not required to be published.
These requirements and directions may be given ‘despite any provision of any other Australian law’. Section 474 requires the Minister to exercise these powers personally, they cannot be delegated.
Human biosecurity requirement: cruise ship ban
The Health Minister first exercised his biosecurity emergency powers under section 477 on 18 March 2020. The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements) Determination 2020 forbids international cruise ships from entering Australian ports before 15 April 2020.
‘International cruise ship’ is defined as a foreign vessel that has the capacity to carry 100 or more passengers and is on a voyage from a port outside Australian territory.
However, international cruise ships may enter an Australian port if:
- the Comptroller-General of Customs grants permission on the basis that the ship is in distress, or other extraordinary circumstances exist or
- the ship departed a port outside Australia before 15 March 2020 and, when it departed that port, was bound directly for a port in Australian territory. At least four cruise ships fell within this exemption, including the Ruby Princess.
Human biosecurity emergency requirement: overseas travel ban
On 25 March 2020, the Health Minister made a second requirement determination, the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020.
This Requirement generally forbids Australian citizens and permanent residents from leaving Australian territory by air or sea as a passenger. It also forbids the operator of an outgoing aircraft or vessel from leaving Australian territory with an Australian citizen or permanent resident on board as a passenger. This requirement entered into force at 12PM, 25 March 2020, 15 hours after it was announced following a meeting of the National Cabinet.
This overseas travel ban has a number of exemptions, with the ban not applying to:
- a person ordinarily resident in a country other than Australia
- a person who is a member of a crew of an aircraft or vessel but is travelling as a passenger on another aircraft or vessel
- a person engaged in the day-to-day conduct of inbound and outbound freight
- a person whose travel is associated with essential work at an offshore facility (for example, offshore oil-rigs) or
- a person who is travelling on official government business (including a member of the Australian Defence Force).
Any APS employee in the Australian Border Force may also grant specific exemptions to Australian citizens, permanent residents and operators of outgoing aircraft or vessels in exceptional circumstances. Exceptional circumstances are defined under the Requirement as ‘a compelling reason for needing to leave Australian territory’ that the citizen, permanent resident or operator must demonstrate. This exemption must be in writing and is not a legislative instrument.
Scope of human biosecurity emergency powers
The Minister’s powers under sections 477 and 478 of the Biosecurity Act are expansive. The powers may be used to do the following:
• set requirements to regulate or restrict the movement of persons, goods, or conveyances
• require that places be evacuated
• make directions to close premises.
The powers are not limited to these circumstances. Under the Biosecurity Act, provided that the Minister is satisfied that an action is necessary to either combat the listed human disease (in this case, COVID-19) or to implement WHO recommendations in relation to that disease, the Minister may make a direction or set a requirement to ensure that action takes place.
However, the Minister may not impose certain biosecurity obligations on an individual, such as requiring them to undergo a medical examination, requiring body samples for diagnosis, or requiring them to receive specified treatment or medication. Such measures can only be authorised under a human biosecurity control order, made by the Commonwealth Chief Medical Officer or a biosecurity officer in relation to a person who may have a listed human disease (including COVID-19).
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Limitations on human biosecurity emergency powers
The Biosecurity Act recognises the federal nature of government in Australia and subsection 478(5) places limits on interference with state and territory bodies and officials:
A direction must not be given under subsection (1) to an officer or employee of a State, Territory or State or Territory body unless the direction is in accordance with an agreement between the Commonwealth and the State, Territory or body.
There is an intergovernmental agreement for National Partnership on COVID-19 Response.
How long can a human biosecurity emergency declaration last?
Subsection 475(4) requires that the human biosecurity emergency period last no longer than the Health Minister considers necessary to prevent or control the entry, emergence, establishment or spread of COVID-19 in Australia, or in any case, not longer than three months. The current declaration is for three months. The Governor-General may extend a declaration indefinitely (with each extension being for no longer than three months) if the Health Minister remains satisfied that the conditions that required a declaration of a human biosecurity emergency continue (section 476).
Offences
A person must comply with emergency requirements and directions. A person who intentionally engages in conduct that contravenes a requirement or a direction commits a criminal offence punishable by a maximum penalty of imprisonment for five years and/or a fine of 300 penalty units ($63,000).
The role of the Australian Defence Force
The Commonwealth CMO may make members of the Australian Defence Force human biosecurity officers if satisfied that they have appropriate clinical expertise (section 563). The Commonwealth CMO is required to determine, in writing, training and qualification requirements for human biosecurity officers. Such officers can exercise various powers under the Biosecurity Act, including the making of human biosecurity control orders.